George Washington once complained that in Congress, “party disputes and personal quarrels are the great business of the day whilst the momentous concerns of an empire ... are but secondary considerations. Business of a trifling nature and personal concernment withdraws their attention from matters of great national moment.”

There are those who would argue today that nothing has changed.

Did the framers of the Constitution make a mistake?

Not at all, Professor Sean Watts said. He teaches Constitutional Law at Creighton University School of Law.

“It’s tempting to think that partisan hostility and noisy factions are byproducts of modern phenomena like social media. In fact, they’re part of the design of our constitutional system,” Watts said.

The country’s founders came up with a concept of separation of powers for the newly formed government. A Congress, a President and a Supreme Court would share power and would interact with each other, offering checks and balances as three distinct and independent branches of government. The plan defined legislative, executive and judicial powers and outlined how they interact.

“No, they did not make a mistake,” according to Anne Marie O’Brien, President of the Omaha Bar Association and partner at the law firm of Lamson, Dugan & Murray, LLP. “The Founding Fathers knew the result of their handiwork because partisan hostility had manifested itself almost immediately. But better to give everyone a voice, even if some used their voices more aggressively than others.”

“Ambition must be made to counteract ambition,” James Madison explained in Federalist 51. Madison believed the separation of powers along with built-in checks and balances would preserve political liberty and provide a framework for freedom.

“Teaching and researching constitutional law, I’ve come to understand that our founding generation valued debate over consensus. The way they ambiguously scattered authority between the various branches of government practically guaranteed that succeeding generations would quarrel and clash over governance,” Watts said.

“No, they didn’t make a mistake,” said Democratic Congressional candidate Kara Eastman. “We do need checks and balances, and it’s okay for big decisions to take time and work. Part of our democracy is being able to engage and share different ideas and it’s a shame that our current Congress and the Administration are often in gridlock.

“This isn’t a problem with checks and balances, this is a problem with people who are putting special interests above the people they serve. We need leaders that can bring people together, with values that put people first, and who are able to work together toward solutions. We need reform to eliminate gerrymandering which makes districts uncompetitive and creates a hyperpartisan environment.”

Charles Shane Ellison concurred. He is special assistant professor of law, Immigrant and Refugee Law Clinic, Creighton University School of Law, and legal director for Immigrant Legal Center an Affiliate of the Justice For Our Neighbors Network.

“There can be little doubt as to the ingenuity of the founders in constructing our robust system of checks and balances in the Constitution,” he said.

The Courts

The best-known power of the Supreme Court may be judicial review.

Ellison pointed out that, “In today’s highly partisan environment, those checks are as important as they have ever been. Indeed, especially of late, the role of the judiciary in particular has been paramount in resisting executive overreach in the area of extreme immigration enforcement.”

However, the high court’s ability to declare a legislative or executive act a violation of the Constitution is not found within the Constitution itself. The Court established this doctrine in 1803 in the case of Marbury v. Madison when it had to decide whether an Act of Congress or the Constitution was the supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus (legal orders compelling government officials to act in accordance with the law). Article VI of the Constitution establishes the Constitution as the supreme law of the land and the Supreme Court held that an Act of Congress that is contrary to the Constitution could not stand. In subsequent cases, the Court also established its authority to strike down state laws found to be in violation of the Constitution.

Before the passage of the Fourteenth Amendment in 1869, the provisions of the Bill of Rights were only applicable to the federal government. After the amendment’s passage, the Supreme Court began ruling that most of its provisions were applicable to the states as well. Therefore, the Court has final say over when a right is protected by the Constitution or when a Constitutional right is violated.

Robert Alt, a visiting fellow with the Heritage Foundation, wrote in “What Is the Proper Role of the Courts?” that “Alexander Hamilton referred to the judiciary as the least dangerous branch of government, stating that judges under the Constitution would possess ‘neither force nor will, but merely judgment.’ Yet recently, the courts have wielded great power, directing the President on questions as monumental as how to conduct war, and micromanaging the states concerning even the most minute details of local school and prison operations.”

O’Brien suggested the judiciary does as well as humanly possible and will generally offer a good-faith effort to interpret the Constitution.

“The study of Behavioral Economics looks at how we as human beings decide things. Daniel Kahneman won the Nobel Prize for his groundbreaking work in this area. He determined through research with his partner, Amos Tversky, that people regularly make decisions that include subconscious bias, even when they do not believe that they are being swayed.”

Since judges are human, O’Brien stated, “we can assume, based upon Kahneman and Tversky’s work, that some amount of political bias may indeed subconsciously affect how a judge decides issues regarding the Constitution.”

Appellate courts were created with this notion in mind, O’Brien said. “If bias is prevalent and unwarranted, an appellate court of appeals can reverse a decision that seems inherently unfair. The legal system has its own set of checks and balances that operate to ensure that each decision can stand on its general merits. It may be imperfect, but it is the most fair system in the world today to resolve issues between people.”

James Madison wrote “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Basically, the Founders gave the power to make laws to Congress, the power to enforce laws to the President and the power to interpret laws to the courts.

But there are limits. Federal courts can hear cases but cannot issue advisory opinions. Courts cannot expound on a law of their choosing or even at the request of the President himself, but must wait for a case to be properly presented to the court. The courts would have the authority to determine whether laws passed by the legislature were consistent with the fundamental and superior law of the Constitution. If a law was contrary to the Constitution, then it was void.

The Supreme Court agreed when it ruled in the case of Marbury v. Madison. In weighing the validity of a provision of the Judiciary Act of 1789, Chief Justice John Marshall declared that “It is emphatically the province and duty of the judicial department to say what the law is.”

The Marbury Court did not claim that the courts possessed exclusive or supreme authority to interpret the constitutionality of laws. The other branches also are responsible for interpreting the Constitution.

The President, for example, takes an oath to support the Constitution and carries out this oath by determining which laws to sign.

“While the President may sign or veto legislation for political or policy reasons, the President faithfully discharges his oath by vetoing legislation if he believes that it would violate the Constitution,” Alt said.

If the law was signed by one of his predecessors, a President may engage in constitutional interpretation by choosing not to enforce it if he believes it to be unconstitutional.

Members of Congress also take an oath to support the Constitution and will interpret the Constitution by deciding which laws to enact. Congress may choose to enact or reject legislation for political or policy reasons, but when its members reject legislation that would violate the Constitution, they are acting in accordance with their oaths.

“The proper role of a judge in a constitutional republic is a modest one,” Alt wrote. “Ours is a government of laws and not men. This basic truth requires that disputes be adjudicated based on what the law actually says, rather than the whims of judges.”

That means judges acting in accordance with their constitutional duties will at times uphold laws that may be bad policy, and strike down laws that may be good policy. Judicial review requires a judge to determine not whether the law leads to good or bad results, but whether the law violates the Constitution.

“Supreme Court judges are appointed by Republican and Democratic presidents,” Eastman pointed out. Therefore, “Some are more liberal, and some are more conservative. The idea is that they’ll be able to look at the facts in front of them and work together to come to a consensus – weighing the Constitution, precedent and the impact their decision will make on the U.S. as a whole.”

Eastman concedes, “This doesn’t always happen, and when our Supreme Court becomes unbalanced with too many partisan judges on one side or another, it will be even more challenging to come to impartial decisions rather than decisions influenced by special interests.”

Nebraska Republican Senator Ben Sasse concurred: “As is necessary in all three branches, the Article III branch of government must faithfully uphold the Constitution and the rule of law. That’s why, as a member of the Senate’s Judiciary Committee, I was a vocal advocate for the nominations of Neil Gorsuch and Steve Grasz. Both know that their black robes are there to cloak their personal policy preferences – those are the type of judges the judiciary needs.”

The Legislative Branch

Sasse said the separation and balance of powers “are good, necessary, and integral parts of the American experiment. Unfortunately, for decades, Washington hasn’t been interested in fixing our big problems with serious solutions.”

A combination of issues, he said, has left Congress at “one of its weakest points in history. Too many politicians who focus on permanent incumbency are eager to pass off legislative responsibilities to the Executive Branch. Both parties expand the Executive Branch when they’re in the Oval Office.”

Eastman, too, said she is worried that the sometimes-fierce partisanship of the legislative branch can adversely affect legislation.

“Our lawmaking process is currently held hostage by special interest groups. Citizens United has allowed large donations and corporate contributions to corrupt our political system. Members of Congress are mostly millionaires.”

In addition, Eastman said, gerrymandering is also a threat, citing Nebraska’s Second Congressional District.

“(It) was redrawn along partisan lines in 2010 after Obama won the district in 2008. Gerrymandering gave Republicans a solid majority in the House in 2012, even though Democratic candidates won a million more votes. … Gerrymandering increases partisan politics and prevents all Americans from having their voices heard in government. Not all issues need to be partisan issues.”

Lee H. Hamilton, a distinguished scholar at the Indiana University School of Global and International Studies and a former Indiana congressman, also thinks the United States of America stands at a crucial point in history. Congress is in deep trouble, he said, “and no one seems to be offering hope. Its public standing is abysmal, occasionally dropping into the single digits in polling. Very few people seem to respect it, even on Capitol Hill.”

He is worried that more power is shifting to the president: “The ‘balance of power’ you read about in seventh-grade civics? It’s a myth today. Co-equal branches? Not anymore. Members of Congress over the years have delegated much of their power to other branches, especially the executive, so that they can escape accountability for tough choices; … bills are often drafted outside the committee system, without careful deliberation, consideration, or even participation by most members. The leadership has accumulated more and more power, leaving ordinary members out of the loop, especially in the all-important budget process.”

Ellison said the sometimes fierce partisanship of the legislative branch can indeed have a serious affect on the type and quality of legislation, but he remains hopeful.

“In an ideal world, vigorous competition should unearth shortcomings and oversights within legislative proposals in much the same way that adversaries in litigation ferret out the weaknesses of their opponent’s argument. Such debate should result in thorough and thoughtful outcomes.”

Hamilton described a Congress that has become extremely polarized, resulting in decisions that are more extreme, “and Congress has largely rejected its oversight responsibilities, which ought to carry a weight equal to legislating – and which put it on a par with the executive branch. It uses the subpoena power rarely, grills administration and other witnesses only occasionally, and even more rarely holds the executive branch accountable.”

He suggested that “Congress needs to reassert the authority given it by the Constitution to serve as a check on executive overreach and misguided policy-making. Americans have a right to be disappointed in the performance of the legislative branch. But they also have an obligation to speak up about it and demand action not just on a favored bill, but on improving the effectiveness of the Congress itself.”

And Ellison offered a caveat to his statement that vigorous discussion can lead to good legislative outcomes: “However, this assumes a measure of good faith, sound ethics, and fair play between the participants. While such assumptions – particularly in an age of “alternative facts” – are not always sound, we should continue to call our elected officials to collegiality even while they zealously defend their positions.”

Sasse said, “The bottom line is this: If we’re going to turn this around, we need to re-teach some fundamental civics. Our federal government is a shared project meant to be a framework to secure our rights through checked and limited government. That was the bold claim made by the founders. That’s not something our kids learn anymore. We haven’t taught civics in this country for decades. A shocking number of younger Americans can’t name all three branches of government. We need to teach and celebrate civics and force Washington to drop its short-term obsessions and refocus on the most important, more urgent stuff. That’s how we start to fix this mess.”

The Executive Branch and The Two-party System

“Every President leaves a mark on the office that will affect future administrations. Only history will be able to tell the extent of that mark,” Ellison said. Even with the built-in division of powers and with the concept that the executive, legislative and judicial are co-equal branches of government, each occupant of the Oval Office will have individual ideas and approaches and will leave an imprint.

That’s what has concerned Eastman: “I am gravely concerned about the current President’s values and actions. We need a new Congress to hold him accountable and represent our values. Right now, we are setting a precedent where the President is held to different standards than the rest of the citizens of the United States.

However, dissension and discord have been constant election companions almost from the start.

“The Founding Fathers created a brilliant outline of governmental checks and balances that has held up well for over 200 years,” O’Brien said.

“The system was initially driven by a desire to avoid the central location of power in a king with final say in all things. Remember, the genesis of the Declaration of Independence was to create self-rule and escape the sovereignty of King George. Fierce conversation is baked into the process. A democracy allows for a difference of opinions, which necessarily comes with aggressive partisanship. Our Founding Fathers were often bitterly partisan themselves.”

Consider the opposing viewpoints of Thomas Jefferson and Alexander Hamilton, she said. Hamilton led the Federalist Party and supported a strong national government with a powerful president and courts. Jefferson led the Republicans and believed political power should be spread throughout the population.

O’Brien pointed out that Hamilton, Jefferson and James Madison “fought aggressively both in person and under noms de plume to determine whether the United States would be an agrarian economy with more democratic governance (Jefferson), or an industrial economy with more sovereign oversight (Hamilton). This was in the very first years of the Republic. It was so bad at the inception that George Washington mentioned the bitterness of partisanship in his 1796 farewell address to the presidency. He witnessed firsthand the fights between Hamilton, Jefferson and Madison. Washington warned that politics was ‘sharpened by the spirit of revenge’ and could lead to ‘formal and permanent despotism’ if both sides were not willing to come to compromise of some sort. The level of rhetoric in our politics has ebbed and flowed since then.”

In fact, the intense disagreement helped create the system of political parties in the United States.

George Washington ran unopposed and won the nation’s first two presidential elections. However, as Harold Braverman and Christine Johnson wrote in “The Making of a Nation,” the presidential election in 1796 marked the beginning of two party presidential races.

Republican Thomas Jefferson ran, as did Federalist candidate John Adams. Adams was expected to win. He was well known, had campaigned for American independence and had been Washington’s choice for vice president. But the Federalists, led by former Treasury Secretary Alexander Hamilton, worked against Adams and tried to win support for Thomas Pinckney of South Carolina.

When the votes were counted, 71 electors voted for Adams, 68 voted for Republican Thomas Jefferson and only sixty voted for Hamilton’s choice.

Back then, the candidate with the most votes became president and the candidate with the next largest number became vice president. So America’s second president would be John Adams. Its second vice president would be Jefferson.

“Fierce partisanship is simply a reflection of passion,” O’Brien pointed out. “The more passionate we are about issues, the more we are willing to fight for them. It may seem that today’s discourse is more fierce than ever. But we know from history that this is not true. At the beginning of the Republic, the rhetoric was extraordinarily hostile.”

For example, the rancor did not improve after the election. Adams kept President Washington’s cabinet. The three men who were Washington’s chief government officials would now advise President Adams. Washington had appointed them at Hamilton’s request.

However, according to Braverman and Johnson, the secretary of state knew little about foreign relations, the secretary of the treasury knew little about finance and the secretary of war knew nothing about military matters and defense. Adams may have kept these men as an act of party unity or because he could not get anyone else.

“Whatever his reason, the decision was politically costly, for the three men worked together against him. President Adams told his cabinet secretaries what he wanted. Then they went to Alexander Hamilton for orders,” Braverman and Johnson wrote. In the end, the choice helped destroy the Federalist Party.

“Adams, like other Federalists, believed that men of money and position should govern America. He did not trust the common people,” Braverman and Johnson wrote. “He did not want to become involved in party arguments or compromises so other Federalists often worked against him.”

The tug-of-war continues on Capitol Hill today, Ellison said. For example, “In the realm of immigration policy, the executive branch traditionally has had significant authority. But the current administration is seeking to significantly expand the outer limits of that authority. While many of those efforts have been fully or partially enjoined, the Supreme Court will have to make the final decision on where to draw the line. I am hopeful that – in the words of John Adams – ours can remain a ‘government of law, and not of men.’”

O’Brien noted that the sometimes-fierce partisanship of the legislative branch occurs today as it did at the nation’s founding.

 “The stakes today – nuclear war, rising debt, globalization – are high; just as they were at the inception of our government,” she said. “There was, and is, more passion on each side to push its agenda to solve such big issues. We also know from history that the business of the Republic is a slow moving mountain. So while the rhetoric of individuals can vacillate widely from one extreme to another, the business of the legislature and the judiciary is well designed to slowly turn in a manner that is more contemplative and measured to the benefit of the majority. It takes fierce partisanship to move this mountain. And so it should.”

Adams once wrote: “In politics, a man must always walk on broken glass and red-hot iron. It is not easy to do this when you are not wearing shoes. But some men must do it. There are many dangerous things that have to be done for our country in these dangerous times. If nobody else will do them, I will.”