So how might the American system fail? A few weeks ago, Slate ran a somewhat hyperbolic and rather uninformative series about the topic. My friend Carlos Yu proposed five much more reasonable possibilities. With classes about to begin, and not a lot of time to write more serious posts, I propose to take them in turn. His first failure mode was:
There might be too many “veto points” in the Federal system to resolve new problems of government in a timely manner.
A “veto point” is simply a place in the political decision-making process where an individual or collective actor has the ability to call a halt. In the political science literature that I engage with professionally, the phrase has a positive connotation. Veto points stop expropriation and predation and civil liberties violation and the like. But they can also stop needed reforms. Many a ship of state has run aground because a powerful player prevented a change of course.
One veto point that it is not a problem in the United States is the judiciary. This was not always true. See Scott, Dred. In the early 1930s, it once again looked like the judicial veto might cause a crisis, as the Supreme Court overturned on much of the New Deal. This could have been a problem ... even if you don't like the New Deal (and parts of it, like the NIRA, were kind of silly), judicial stonewalling might have produced a far worse political backlash.
Only it didn't. In fact, the judiciary turned out to be a bit of wet firecracker on the crisis-inducing front. First, FDR tried to pack the court. That was a bad idea, and died in Congress. But the President had more ammunition in store: several constitutional amendments to alter the meaning of the commerce clause were percolating in Congress. One proposal would have given Congress the power “to legislate in all cases for the general interests of the union, and also in those in which the states are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” Others were less sweeping, but all made the point. Either the Supreme Court changed its interpretation of the Constitution, or Congress would change the Constitution.
In the face of a credible constitution change, the Court reversed itself in 1937 and permitted most remaining New Deal legislation to sail through. And if it had stood fast? Well, we would have gotten a fairly innocuous constitutional amendment. The Supreme Court didn't use the Commerce Clause to limit Congressional legislation until 1995, and even then it was over a small issue.
Today the judiciary also exercises a veto power over egregious attempts to roll back civil liberties or use legislation to alter the social changes of the last 40 years. Many have argued that in that veto has worsened political divisions, by taking abortion policy out of the political arena. That may be true, but it is also true that almost all the social changes of the last half-century are quite popular, with the partial exception of affirmative action. The judiciary, by exercising a veto, in fact allows the Republican Party (and, increasingly, pro-life Democrats) to attract socially conservative voters without any fear that they might suffer the national electoral consequences that would follow success in enacting truly socially conservative legislation.
In short, judicial veto points no longer stop constructive economic legislation, although they would be employed to stop Bolivarian-style expropriations. The judiciary will not veto the federal construction of high speed trains, a national VAT, any conceivable health care bill, or carbon legislation. Nor does the judiciary's regular overturning of social legislation create frustrations that will end in mass civil disobedience, let alone mass violence. (Although small-scale violence tragically does occur.)
Rather, the ironic result of the judiciary's defense of social change is to shore up social conservatism as a political force. This is interesting, but unlikely to lead to the demise of the United States. If one really believed in Jack Bauer, then one might argue that the judicial veto on things like torture and summary imprisonment could cause the demise of the nation, but I'm not going to bother with that one.
In short, if vetosclerosis is going to cause the failure of the American experiment, the judiciary is unlikely to be the source of the problem.