A sculpture at the British Museum possibly depicting the Roman Emperor Caligula riding perhaps Incitatus, the horse he allegedly proposed to make Consul and a member of the Roman Senate.

Whether or not it is actual history or fake news cannot be known, but the story about Caligula, the insane first century CE Roman Emperor, proposing to make his horse Consul and a member of the Roman Senate is certainly one of the most amusing stories from ancient history. One reason it is tempting to believe it is true is that its implied ridicule of the Roman Senate as a horse stable in bad need of mucking out can be related to a wide range of evidence from multiple sources about how little of any lasting value Roman Senators did following the legal and political reforms of Augustus. That history seems to be repeating itself. Not only does one ‘chamber’ of the US Congress takes its name from that of the purportedly deliberative and legislative assembly of Rome, but it and the other chamber, the House of Representatives, seem determined to do little more than bicker endlessly and thus unproductively and expensively.

There Is Not Even Horse Sense In Confirmation Hearings

No better example of why Congress in general and the US Senate in particular deserves to be compared to a horse stable needing mucking out is the way in which the purportedly august constitutional duty of providing the US President with “advice and consent” regarding appointments of various types has been reduced to purely political theatrics. Given the current make-up of the Senate there simply is no question but that most if not all of the President’s nominees will be approved. Indeed, precisely because there is not even horse sense in holding many of such hearings to compare the Senate to a horse stable is to be charitable.

The Senate is thus just going through the motions, but that is an absurdly expensive process. It defies exact calculation because of all the variables that need to be considered. Some estimates of the monthly cost of ‘operating’ Congress put it at half a billion dollars. Given that most of Trump’s nominees were identified a month before he took office there have been effectively two months squandered on hand wringing over whether one such nominee or another is ‘qualified.’ That is a waste of $1 billion. Because Trump had identified a pool of Supreme Court nominees months ago (an innovative strategy that should be in some way institutionalized), there is no way of knowing just how much time and money will have been spent by the time the Senate ‘acts’ on any one of them.

The Executive Order: A Poor Remedy For A Dysfunctional Congress

While the rise of the imperial presidency is perhaps most visible in the militarization of the security around the President, from a legal perspective it is the executive order and the frequency and nature of its use over the past several decades that betrays a recognition that Congress has become dysfunctional. Yet, to be done right such orders effectively must mimic the legislative process and be drafted and reviewed multiple times by multiple ‘constituencies’ to ensure they are even worthy of the title ‘executive order,’ that is, that they can legally be ‘executed.’ That would best be done by making drafts of such orders publicly available, as most government agencies do in making their respective rules, effectively ‘crowd sourcing’ the editorial process.

Cynicism & Skepticism: The Corrosive Effects Of A Dysfunctional Congress

Not only would blunders in drafting executive orders be minimized by such publicity, more publicity regarding ideas for such orders and the drafting of them would help to minimize two of the most troubling effects of a dysfunctional Congress that has encouraged the use of such orders: cynicism and skepticism. It is readily apparent not just from any number of opinion polls, but from the wildly polarized and polarizing rhetoric of policy debates that people have become cynical of the motives and even mental health of each other. The legitimacy of skepticism regarding otherwise obvious facts is taken as a given. The combination of such radical skepticism with such cynicism all but forecloses even an opportunity for debate. It is no wonder threats of political violence are on the rise; it is surprising more violence has not already occurred.

Cynicism, Skepticism & The Origins Of Democracy

Cynicism and skepticism are terms that derive from ancient Greek and can be related to the underlying principles of having a system of government of ‘checks and balances.’ ‘Cynic’ derives from the word for ‘dog’: to be a cynic is not only to be dog like but to view others as dogs as well. The early Athenian statesman Solon compared his political rivals to packs of dogs on either side of him as he, in creating a system of government, strode as a wolf between them, looking from side to side. Though not originally used to refer to the principle of checks and balances (the Greek is isonomia), what we deem to be democracy is thus derived from a truly cynical assessment of human nature. It is fair to interpret the Caligula horse story as a variant on a range of themes that can be developed from such cynicism.

Skepticism, which derives from a Greek verb meaning to ‘look’ or ‘examine.’ Though ‘mainstream’ history associates what we think of as skepticism with only one ‘school’ of philosophy, the basic principle can be discerned in the pre-Socratic philosopher of law and language, Gorgias. It is thus closely associated with the emergence of democracy and in particular trial procedure (some of what survives of the writings of Gorgias are hypothetical court cases). That legacy is lost in the current obsession with fact checking that is all too often used as a ‘gotcha’ to justify shutting down debate. Our system of government is predicated on the recognition that there is no strict dichotomy between real and fake news, but only a relative one that reflects what people judge to be right. There is rarely a consensus on that (hence the restriction of jury trial consensus to criminal cases in many jurisdictions). It would be helpful if more people would acknowledge that fact.