Posts by DavidCorbin:
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The effects of faction can be controlled, but the causes cannot be prevented (Federalist 10).
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Ambition can counteract ambition, but there are no angelic statesmen to govern the equally non-angelic people (Federalist 51).
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The people must cement their union because “we are yet remote from the happy empire of perfect wisdom and perfect virtue” (Federalist 6).
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President Obama took the Supreme Court to task in his 2010 State of the Union Address for protecting (First Amendment) political speech with its Citizens United decision, encouraging ongoing efforts to impose strict limits on campaign finance spending;
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Obamacare and the emerging gay marriage legal regime pose a serious and growing threat to the (First Amendment) “free exercise” of religion;
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The Justice Department engaged in unprecedented “snooping” on reporters from the AP and Fox News’ James Rosen, undermining the (First Amendment) “freedom of the press” and convincing 64% of reporters, according to a recent survey, that they are under covert government surveillance;
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Former Supreme Court Justice John Paul Stevens proposed a “fix” to the (Second Amendment) “right to keep and bear arms” that amounts a repeal, while left-leaning politicians continue to look for ways to undercut the ability of common citizens to protect themselves and their families;
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NSA practices revealed by Edward Snowden suggest that the (Fourth Amendment) protection against “unreasonable searches and seizures” may have been significantly compromised.
- On ‘Reflection and Choice’ (Federalist 1)~ “What [Progressives believe] we need today, is not good government, but effective government. Over the last two centuries, politics has grown up, setting aside childish debates about philosophical abstractions like justice to confront the real scientific facts of social life. And since the most universal fact of all is that our existence is a matter of metaphysical accident, modern statesmanship amounts to artfully applying intellectual force against those who still believe that their reflection and choice is a matter of consequence.”
- On the Limits of Politics (Federalist 5) ~ “Since Progressivism acknowledges no ultimate limits to the realm of politics, there is no place beyond its claims of sovereignty. The practical barriers to the full exercise of this sovereignty–some political, some technological, some economic–are all provisional and, it seems, increasingly weak.”
- On Faction (Federalist 10) ~ “The success of the progressive project rests on their ability to create one big faction: “a number of citizens . . . who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
- On the Rule of Law (Federalist 25)~ “Where do they [Progressives] get the moral, not to mention legal, authority to exercise such raw power? Here we would do no better than to turn to the work of Oliver Wendell Holmes Jr., . . .(who) explains that there is no logic to the law in the “traditional” sense: it does not reflect in any meaningful way a constant standard of right or set of moral absolutes. Rather, the “path” of the law is historical in nature, weaving and winding through changing cultural norms and varying political circumstances. Thus judges (and now executives) who alter the law by fiat only hurry along the next stage of progress.”
- On Power ~ (Federalist 32) ~ “Today, of course, it is neither the universal “sense of the people” nor conviction of our leaders that “local administrations for local peoples” are good and necessary. Central to Progressivism, in fact, is a strong presumption toward uniform national administration in all areas of policy.”
- On Liberty ~ (Federalist 33) ~ “What is striking in these cases is perhaps not so much the power in view (although in some cases that is considerable), but the way they illustrate the national government’s claim to jurisdiction over and pretense of competency in all areas of life [and thus] . . . a creeping homogenization of American life that uses federal control over questions once left to the states or private parties to promote conformity to Progressive orthodoxy.”
- Remove unnecessary barriers to adoption by protecting the rights of conscience of faith-based adoption agencies. (The Heritage Foundation)
- Institutionalize the Medicaid waiver process to allow more market driven alternatives like former Governor Mitch Daniels’s Healthy Indiana Plan.
- End the Federal Government’s stranglehold on the housing financing industry. (Representative Jeb Hensarling)
- Open up room for alternative forms of higher education by allowing federal financial aid to go to programs accredited by the states (not just regional accrediting agencies). (Senator Mike Lee)
- Encourage experimentation and competition in poverty relief by block granting federal anti-poverty funds to the states. (Senator Marco Rubio)
- Increase regulatory accountability and transparency by requiring congressional approval for any rule with an annual economic impact of $100 million or more. (Senator Rand Paul)
The Federalist and The Promise of American Life
March 7th, 2015
By David Corbin.
The death of the American Progressive Party early in the 20th century was a testimony to its ideological victory, coinciding with the embrace of progressivism by leading Republicans and Democrats. Herbert Croly, founder of The New Republic and father of its house progressivism, discovered in Republican Teddy Roosevelt and Democrat Woodrow Wilson two giant political egos willing to take up the cause of a “new nationalism” — a program of federal intervention that aimed to fulfill what he believed was the egalitarian promise of American life.
While fully understanding the radical nature of his political project, Croly provided in his The Promise of American Life (1909), an imperfect description of the American republic as originally intended. How did Americans first define the rules of their political life? Croly writes,
The ordinary American answer to this question is contained in the assertion of Lincoln, that our government is “dedicated to the proposition that all men are created equal.” Lincoln’s phrasing of the principle was due to the fact that the obnoxious and undemocratic system of negro slavery was uppermost in his mind when he made his Gettysburg address; but he meant by his assertion of the principle of equality substantially what is meant to-day by the principle of “equal rights for all and special privileges for none.” Government by the people has its natural and logical complement in government for the people. Every state with a legal framework must grant certain rights to individuals; and every state, in so far as it is efficient, must guarantee to the individual that his rights, as legally defined, are secure. But an essentially democratic state consists in the circumstance that all citizens enjoy these rights equally. If any citizen or any group of citizens enjoys by virtue of the law any advantage over their fellow-citizens, then the most sacred principle of democracy is violated. On the other hand, a community in which no man or no group of men are granted by law any advantage over their fellow-citizens is the type of the perfect and fruitful democratic state. Society is organized politically for the benefit of all the people. Such an organization may permit radical differences among individuals in the opportunities and possessions they actually enjoy; but no man would be able to impute his own success or failure to the legal framework of society.
Therefore the founders and Lincoln’s principle that “equals be treated equally” must on pragmatic grounds be set aside, since it was not required by any natural principle of justice.
In Croly’s account, democratic governments grant rights to citizens equally whereas for Lincoln and the Founders the first task of government was to protect already existing, God-given (equal) natural rights. For Croly, referencing (or even applying) the moral standard of human equality was suspect if it permitted “radical differences among individuals in the opportunities and possessions they actually enjoy.”
Therefore the founders and Lincoln’s principle that “equals be treated equally” must on pragmatic grounds be set aside, since it was not required by any natural principle of justice. Only the building of a national government with leviathanic power that intentionally discriminated in the pursuit of equal outcomes would fulfill the promise of American life.
The reality of progressive power politics has been much different. The celebrated 20th century assault on natural and circumstantial inequality has empowered a ruling class and its bureaucratic minions, and often only added by its artifice to the permanency and severity of the inequality it purports to combat.
In order to make everybody equal, some have to be more equal than others.
What did the Founders know about the promise of American life that we have forgotten in our day? To begin with, they had much less confidence in politics as the means of securing human flourishing.
The second volume of The Federalist (essays 37-85) begins with James Madison addressing the limits of political wisdom and closes with Alexander Hamilton quoting the Scottish philosopher David Hume on the same theme. There is an obvious rhetorical value to the argument: it will be easier to convince skeptics to support the ratification of the Constitution if they are willing to “doubt a little of [their] own infallibility,” as Benjamin Franklin put it at the close of the Constitutional Convention. But it is not a merely rhetorical point.
The case for limited, republican government that runs beneath The Federalist’s defense of the Constitution is itself dependent on a modest view of the possibilities of political life, as several of its most famous arguments illustrate:
The Federalist, in other words, suggests that there are important limits to both what we can know and what we can do in politics. In Federalist 85, Hamilton particularly notes (citing Hume) how much of political wisdom must be uncovered piecemeal, through the “judgments of many,” guided by “experience” gained through often painful “inconveniences” over the course of “time”–and, as Hume’s reference to “inconveniences” suggests, we often learn more about what doesn’t work than we learn about what does.
What set progressivism apart from other, earlier challenges to the founders’ political vision was its explicit rejection of these limits. As Croly argues, the American regime “must cease to be a democracy of indiscriminate individualism, and become one of selected individuals who are obliged constantly to justify their selection.” An elite class must henceforth impose order upon American society and “make [popular government] expressly and permanently responsible for the amelioration of the individual and society.”
If all goes well, the wise and worthy will take up this burden, to be replaced when they cease to be wise and worthy. But replaced how? By whom? There is much less left to the chance results of popular elections in the progressive system, as powerful new EPA “climate change” and FCC “net neutrality” regulations make clear.
If, then, the same bruised reeds that Publius wrote about attain these now much higher and more secure offices, will they not be tempted to perpetuate their power far past the expiration of its public usefulness? Will they not be likely to bring others into the ruling class who confirm, rather than challenge, their prejudices, who are stamped with the same seal of approval from the same credentialing agencies–the same universities, political networks, and social classes? Will they not in the name of fighting political, economic, and social inequality, secure their unequal perch through force, fraud, and plutocratic fraternité?
The ruling class is always the ones they, at least, have been waiting for. And, thus, when their supposed wisdom turns out to be profoundly unwise, how will they know–especially if they have, as, increasing, our ruling class has, managed to fence themselves off from the “inconveniences” their folly imposes upon others?
Progressivism, in sum, requires a capacity for self-criticism that its epistemic pride and solipsistic self-flattery make all but impossible. President Obama’s comical self-confidence is but the logical outcome of his ideology.
How fundamentally different was the political vision of Abraham Lincoln who gave his Second Inaugural Address 150 years ago this week. President Obama recently claimedcredit for “saving the economy.” Lincoln might have crowed that he had (all-but) saved the Union and the republic. Instead, he delivered a speech unlike any other in American political history, confessing, before a divided nation, how little the American people, north and south–and he foremost among them–had understood the origins, meaning, and consequences of the civil war that was only then drawing to a close.
In the first half of the speech, Lincoln uses “all” four times and “both” twice to suggest the surprising unity of mind and purpose among the friends and enemies of the Union. His litany of similarities ends with the sobering observation: “Both read the same Bible and pray to the same God, and each invokes His aid against the other.”
The pride of mid-19th century Americans did not manifest itself in their confidence in the latest social science metrics, but rather, Lincoln suggested, in their confidence that God was on their side. Logically, as Lincoln noted, both parties could not be right. But, more fundamentally, he argued: “The Almighty has His own purposes.” Those purposes, it was plain by March, 1865, had not been to vindicate either side in the conflict. Might they have been, instead, to humble both (Lincoln suggests a better prayer: “Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away.”) and pay down the American (not southern) debt to justice accumulated “by the bondman’s two hundred and fifty years of unrequited toil”? Lincoln was not sure, but, if so, none could complain. Quoting Psalm 19, he asserted: “The judgments of the Lord are true and righteous altogether.”
It would do violence to language and mock an enormous toll in human suffering to call the Civil War an “inconvenience,” but Lincoln would not miss the lesson it taught. Given the malice toward many bound up in the history of Reconstruction, Jim Crow, and much of our politics today, it is not clear that the nation learned it equally well.
Today’s largely secular ruling class might not identify with Lincoln’s biblical call to humility any more than with the religious pride Lincoln opposed. But it would do well to doubt a little of its own infallibility and, more than that, the virtue of its judgments and the purity of its motives. A regime that seeks “equality for all and special favors for none” may leave many social challenges to non-expert friends and neighbors, but it will also avoid the “inconveniences” and gross injustices (from unfunded pensions and entitlements to crony capitalism and abortion on demand) a century of progressivism has imposed on our nation–and vindicate, in our day, the founding generation’s “honorable determination . . . to rest all our experiments on the capacity of mankind for self-government.”
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Liberty and the Bill of Rights
February 9th, 2015By David Corbin and Matt Parks.
The foundational document of Anglo-American constitutionalism, the Magna Carta, turns 800 years old this summer. While most important political anniversaries prove fertile ground for historical triumphalists and cynics, the fact that some are celebrating the event as the 800th birthday of modern democracy promises to make for a lively exchange: the triumphalists overstating earlier democratic commitments; the cynics sensationalizing bad motives, hypocrisy, and incompleteness at every turn. Of course much of this exchange is more about the present than the past, each camp using the occasion to advance its preferred democratic agenda in our day.
This fall will mark the 250th anniversary of what might be the American equivalent of the Magna Carta: the Stamp Act Congress’s “Declaration of Rights and Grievances,” the first public document in the runup to the Revolution, claiming against the King and Parliament the colonists’ equal share in the “rights and privileges” of British subjects. Americans celebrating our own “great charters” would do well to stay clear of fitting ourselves in the historical straight jackets of either the triumphal or cynical democratic partisan. Better to ask how much and how well we have maintained our commitment to political liberty, informed by an understanding of the timeless truth and goodness of political principles upon which it was originally advanced.
The natural place to start our inquiry would seem to be the Bill of Rights. Unfortunately, as Joe Biden might put it, “the past six years have been really, really hard” for the Bill of Rights:
The list, of course, might go on. To its credit, however, there is no evidence that the Administration plans (contra the Third Amendment) to quarter soldiers in private homes without the consent of the owner, now that peace has been secured by the end of American combat operations in Afghanistan.
As troubling as the items we’ve enumerated might be–or even those on a more comprehensive list–the sum of the parts seems to fall short of the whole challenge to liberty that we face in our day. Federalist 84 helps us understand why.
The fact that the original Constitution included no distinctive bill of rights was perhaps the most powerful objection raised to the document by its Anti-Federalist critics. In Federalist 84, Alexander Hamilton responded to this objection with a very different understanding of the best way to secure liberty under law in the United States.
After identifying a number of key provisions in the Constitution that “in substance amount to the same thing,” Hamilton noted that the British bills of rights admired by the Anti-Federalists (including “Magna Charta”) had been “stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, and reservations of rights not surrendered to the prince.” To attach such a bill of rights to the Constitution, then, would suggest that the (federal) government possessed an inherent, sovereign authority that could only be curtailed by negotiated, positive limits on its power. It is not a coincidence, in other words, that that the British bills of rights were reconcilable with the principle that the Parliament possesses absolute sovereign in the British regime.
But this was very far from the principle that informed the American founding. As Supreme Court Justice James Wilson noted in his famous Chisholm v. Georgia (1793) opinion, the Constitution begins with “the People of the United States,” who then vest certain powers in the three branches of the federal government. There is no negotiation between the sovereign and his subjects; there is not even an office holder to negotiate with until the Constitution creates the office. The same people, moreover, authoritatively impose limits upon the respective state governments and declare in Article VI that all office holders, state and federal, “shall be bound by Oath or Affirmation, to support this Constitution.”
A British-style bill of rights, then, may have no place in the American system–and indeed be destructive of it. But what is wrong with a carefully-enumerated list of rights protecting essential liberties?
Hamilton suggests two dangers. In the first place:
…why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
A bill of rights, then, might implicitly suggest that the relatively narrow powers granted to the national government are to be read much more expansively than the language of the Constitution would otherwise allow. If so, this would endanger rights not specifically protected and, ironically, require legislation around the prohibited areas, at least to define their outer boundaries. Whatever the consequences may be for particular liberties, the cause of liberty itself may be hindered, on balance, by a bill of rights.
Recognizing this and related dangers, Hamilton’s Federalist co-author James Madison included early versions of the 9th (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) and 10th (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”) Amendments in his conciliatory speech proposing what became the Bill of Rights to the First Congress. Properly understood, these amendments would resolve interpretive questions that might otherwise arise after the ratification of the rest of the Bill of Rights.
But a deeper problem remains, suggested in Hamilton’s last Federalist 84 argument against a bill of rights: “whatever fine declarations may be inserted in any constitution respecting it [“the liberty of the press”], [“it’s security”] must altogether depend on public opinion, and on the general spirit of the people and of the government.”
Too easily, perhaps, have we been convinced that the security for our rights comes from their inclusion in charters like the Bill of Rights. Too easily, perhaps, have we come to assume that our rights themselves come from their inclusion in charters like the Bill of Rights, rather than being bound up in our nature as human beings. We come to suppose that we need not articulate a defense of our rights because the Founders wrote them down–and the courts will stop any legislator or executive who challenges them.
Furthermore, we may not ever need to explain how the original Constitution limits the powers of the national government, far beyond the boundaries of the Bill of Rights, if our favorite rights are already singled out for special protection. And so: the structural limitations of the Constitution have all but disappeared, swallowed up by words and phrases like “commerce,” “general welfare,” and “necessary and proper.”
It is perhaps too much to regret the Bill of Rights. But it is not too much to recognize that the bad habits it has allowed us to adopt will remain an impediment to the recovery of a fuller measure of our liberty until we recognize just how much its enjoyment ever depends upon the “general spirit” of the people and our government.
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Goldwater 2.0?
August 4th, 2014
By David Corbin.
The last Republican presidential candidate to win California was George H.W. Bush, back in 1988. Last week, George Will suggested that a new sort of “Goldwater 2.0” conservatism, represented by the state’s Republican gubernatorial nominee Neel Kashkari, might at least color the state purple and force Democrats to fight, once again, for its 55 electoral college votes.
What is Goldwater 2.0? A mixture of an immigrant upbringing, a job at Goldman Sachs, a first-hand view of bailing out banks ‘too big to fail’ while working under Treasury Secretary Henry Paulson, a non-threatening pro-choice and pro-same sex marriage social libertarianism, and apparently, an orientation in Will’s words toward “discerning silver linings on black clouds.”
While Goldwater’s own brand of conservatism certainly evolved after the 1964 presidential race, Kashkari’s 21st century conservative operating system is plenty different from the one that prompted Goldwater to proclaim in his (in)famous 1964 Republican acceptance speech: “Extremism in the defense of liberty is no vice, and moderation in the pursuit of justice is not a virtue.”
Such bold words spoken today by a conservative candidate might provoke a MSM-led 21st century Salem Witch Trial with Senator Harry Reid playing the part of chief inquisitor. But that’s just the point, some on the right argue: even a less radical conservatism, at least taken out of context, is a political liability. And as there’s no preventing those covering politics from taking it out of context, better to blend in with the political culture of the day (a very un-Goldwater sentiment) with a more libertarian conservatism, marketable to 21st century Americans.
It is unlikely Friedrick Hayek, godfather of contemporary libertarianism, would have been impressed. Appended to the end of his 1960 treatise The Constitution of Liberty is an essay entitled “Why I am Not a Conservative,” distinguishing his (classically) liberal alternative to progressive ideologies from a simple resistance to change, the fundamental mark, in his view, of “any conservatism which deserve to be called such.”
The problem with conservatism, according to Hayek, is that
by its very nature it cannot offer an alternative to the direction in which we are moving. It may succeed by its resistance to current tendencies in slowing down undesirable developments, but, since it does not indicate another direction, it cannot prevent their continuance. It has, for this reason, invariably been the fate of conservatism to be dragged along a path not of its own choosing. The tug of war between conservatives and progressives can only affect the speed, not the direction, of contemporary developments.
By this description, the Establishment Republican is a model conservative, offering to run the welfare state for ninety-seven waste-cutting cents on the dollar, tempering hyper-regulation with responsible cost-benefit analysis, and posing as the clear-eyed adult in every political room.
But so, in its own way, is the Goldwater 2.0 conservative, following a pace and a half behind Progressive libertines on the one hand, while reconciling himself to the entrenched safety-first corporatism of the Wall Street-Washington ruling class, on the other.
Hayek notes that his analysis applies somewhat differently in describing the American political scene. Resistance to change in the United States can still mean resistance to departures from a liberal tradition–and, therefore, a defense (at least implicitly) of the principles Hayek himself advocates. He nevertheless concludes that the
difference between liberalism and conservatism must not be obscured by the fact that in the United States it is still possible to defend individual liberty by defending long-established institutions. To the liberal they are valuable not mainly because they are long established or because they are American but because they correspond to the ideals which he cherishes.
Here Hayek demonstrates the limits to his own vision: the alternative to defending “long-established” institutions because they are old or because they are ours is defending them because they are mine–i.e. they correspond to the “ideals” I cherish–ironically substituting one form of subjectivism for another.
Is there no better alternative to Progressivism?
Richard Weaver, a contemporary of Hayek, noted the sort of conservatism Hayek found in the me-too politician. But he argued (in The Ethics of Rhetoric) that “the true conservative is one who sees the universe as a paradigm of essences, of which the phenomenology of the world is a sort of continuing approximation.” In other words, the conservative is committed first to truth, not tradition–to the ideal because it is the ideal, not because it is something he cherishes.
While the Progressive wishes to reconstitute nature, the Weaver’s conservative submits to it. His political program, depending upon circumstances and the dictates of prudence, may be more or less consonant with the status quo, but its ultimate aim is always a fuller expression of human self-government within the God-given order of things.
Such conservatives offer a true, root-and-branch alternative to Progressivism– and can also give a better defense of the American founding than either Hayek’s liberal or his conservative, in part because the leading American founders were, themselves, just such conservatives.
This is evident, ironically, in the most troubling task executed by Publius in The Federalist: a defense of the three-fifths clause, which assigned representatives in the House to the states based upon the sum of “the Whole number of Free Persons” and “three fifths of all other Persons [i.e. slaves].”
James Madison’s Federalist 54 case for the three-fifths clause is complicated by the fact that the defense is presented in the voice of a hypothetical southerner, rather than that of Publius. Of course, Madison in actual fact was a southerner, who had voted in favor of the three-fifths clause in the Convention (albeit as a compromise), not the common citizen of New York that Publius pretended to be.
What is most striking in the essay, however, is how Madison’s southerner demonstrates the unnaturalness of slavery even while defending the clause. He speaks of the “pretext” that “the laws have transformed” the slaves “into subjects of property” as the only grounds for excluding their full number from the population count. The slaves have been “debased by servitude” and the law “which regards” them as “divested” of two-fifths of their manhood by partially considering them “in the unnatural light of property.”
One cannot be “debased” by slavery or “divested” of part of one’s manhood unless, in the light of nature, one is rightfully free and as equally a man as any counted fully in the population computation. The rule of the founding, Madison suggests even here, is the natural one: freedom and equality; slavery is but the aberrant exception, though one the founders were prepared to tolerate for a time. That temporary compromise came with the danger that some might move further away rather than closer to the natural standard–as indeed happened in antebellum America.
Recognizing this, Abraham Lincoln fought to reestablish the original meaning and implications of the founders’ most famous claim: “all men are created equal.” When the majority of the Supreme Court said that these words could have only been intended to apply to whites, Lincoln argued that their reach was universal, despite the obvious inconsistency between the founders’ “proposition” and their practice:
They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that theenforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.
The conservative case for the principles of the American founding is neither that they are old, nor that they American, nor that they are congenial to our prejudices, but that they are right and, in their implications, good, a reliable rallying point for reformation toward a better common life, challenging our (and their) compromises with justice.
The corollary, however, is this: a conservatism that redefines fundamentals like marriage or the scope of the human family (to justify abortion)–is no conservatism at all. The great political danger is that “Goldwater 2.0” will lead quickly to a Goldwater 3.0, 4.0, etc., discovering new implications of social libertarianism in the next refinement of polite (progressive) opinion.
Goldwater, as Will notes, won a victory in defeat in 1964, reshaping his party and, in part, the politics of the nation for a generation to come. Following Goldwater 2.0 is much more likely to lead to a defeat in victory, saving perhaps the Republican Party, but doing little to revitalize the American republic.
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Red State Progressive Blues
June 17th, 2014
By David Corbin.
Should we pity the poor Senate Democrats running for re-election this year? Probably not, since this is the class of Senators that came in with President Obama, rubber-stamped his stimulus boondoggle, cast the decisive votes on Obamacare, and managed to go 1,444 days without passing a budget.
Skittish Democratic incumbents, however, did gain a little bit of relief this week from apologizing for the Administration’s serial incompetence and lawlessness when House Republican Majority Leader Eric Cantor’s defeat enabled the MSM to pivot back to its favorite hobby horse – the perceived electoral troubles of a national Republican party that becomes less and less controlled by its establishment types.
If these same Democrats wanted to create a little more permanent daylight between themselves and the president, they could do no better than look for help from the same long-neglected source that has fueled the campaign troubles of establishment Republicans: the Constitution.
Consider how this type of response might work.
Several red state Senate Democrats want to distance themselves from the President’s recently announced executive actions to cut carbon emissions. Their actions to date, however, are transparently cynical. Louisiana Senator Mary Landrieu visited a local “coal-fired power plant”; Kentucky Democrat Senate candidate Alison Lundergan Grimes promised to confront Senate Majority Leader Harry Reid (what did he do?) at a fundraiser–and then apparently backed down.
Meanwhile, presidential advisor John Podesta chimed in that there is nothing the Congress can do about the president’s actions–since his veto pen is ready to protect the work of his executive order pen.
This is the hegemonic presidency we wrote about last week at work. Step 1: President Obama seizes legislative authority by ordering EPA regulations that go far beyond the normal administrative details that bureaucrats must determine in implementing laws. Step 2: He threatens to use his legitimate constitutional authority to keep Congress from undoing his law. In other words, he takes a veto power that was given to the president to protect the Constitution–from laws that go beyond legitimate federal authority or Congressional efforts to usurp executive or judicial power–and uses it (or the threat of using it), instead, to protect his own usurpation.
If, however, Senator Landrieu and State Treasurer Grimes are serious about their concerns over the president’s actions, there remain a number of constitutional lines of response they could throw (or promise to throw) their full-throated support behind. For instance:
a. Congress could refuse to fund the EPA or any particular part of it;
b. Congress could pass a law rolling back the EPA’s regulations with a veto-proof majority;
c. The House could open an investigation of whether the president’s numerous usurpations and breaches of the law constitute “high crimes and misdemeanors” and therefore are grounds for impeachment.
Such ideas, of course, seem politically fanciful, the exclusive domain of the true believers and the fringes of conservative talk radio–or economics professors turned giant killers. But if they were serious about combatting a hegemonic Presidency that threatens their constitutional prerogative, or perhaps even winning in November, they could set a good example by employing the Constitution themselves.
And there’s the rub. During the campaign season, geographically-challenged Democrats simply clothe themselves in red. If they were truly serious about defending the integrity of their office by checking the unconstitutional acts of their party’s executive, they would endanger the brand of politics that has been in place since the Progressive ascendancy in America began its assault on the separation of powers, as far back as 1885, when Woodrow Wilson published his Ph.D. dissertation,Congressional Government.
Almost thirty years before he became president, the young, academically-ambitious Wilson argued that the fundamental flaw of the American system was the separation of powers, which, in his view, made large-scale reform too difficult and undermined the accountability of political leaders, who could say what they wanted on the campaign trail without ever having to produce results.
Wilson’s concerns about accountability seem perfectly illustrated by the Landrieu and Grimes examples–where symbolism triumphs over substance. In fact, however, the problem today is not the separation of powers, but the atrophying of the tools (the system of checks and balances) that the Constitution has established to maintain it.
After affirming the fundamental connection between the separation of powers and the protection of liberty in Federalist 47, James Madison reviews, in Federalist essays 48-50, a series of possible means for maintaining that separation. He concludes that neither “parchment barriers” (a constitutional description of the powers of each branch), nor conventions called by the aggrieved branches of government or held periodically, would keep a rogue branch or branches of government from usurping the powers of other constitutionally-delegated authorities.
The problem with “parchment barriers” is that they are no match for the “encroaching nature” of power in human affairs. The convention method of relief offers no better an expedient since:
a. the convention will too often meet after the damage has been (irreparably) done;
b. the offending office holders or their allies might be easily chosen as convention delegates;
c. frequent conventions would “deprive the government of that veneration which time bestows on every thing.”
Having canvassed the best ideas available at the time, Madison concludes that there is nothing extrinsic to the balance of power system that can be counted on to keep political leaders in their place. The check must come from within. As Madison puts it inFederalist 51: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”
It is safe to assume, in Madison’s reasoning, that men will be ambitious for power. This suggests that Congressmen, as such, should want to check the power of the executive, as such. The critical advantage of the system of checks and balances is that it gives them lawful, ordinary means by which to do this–a marked improvement on the appeals to arms that had resolved British “separation of powers” disputes for more than 500 years at the time of the American founding.
But today office holders have a different sort of ambition. Instead of an (honorable or not) desire to maintain the “constitutions rights of the place,” they simply want to maintain the benefits of the place. And ideationally, the commitment of many Congressmen is not to the Constitution (including its balance of powers), but to an understanding of politics at fundamental odds with the Constitution.
Hence the cases of Senator Landrieu and State Treasurer Grimes. As we’ve seen, Progressivism, from its earliest days, saw the Constitution as an impediment to be overcome rather than a manual for legitimate political action. There is no a member of the Democratic Congressional caucus who can claim any fundamental disagreement with the centralizing tendency of the Obama Administration–either in drawing power to the national government or in centralizing national power in the executive branch. As for the more base ambition for the benefits of office–their actions in “opposing” the new climate change regulations speak for themselves, a campaign gimmick that neither the voters of Louisiana or Kentucky should take seriously.
Of course, no one in the Washington media-political complex was abuzz with chatter about Landrieu and Grimes last week. Their political act is the new norm–and, therefore, perfectly banal. Rather, the story was Prof. David Brat, whose principled constitutionalism is the new heresy–to be exposed and denounced with all the righteous indignation of the medieval inquisition.
Yet no matter what this regime’s scribes record and report, what becomes of a Republican Party led by Constitutionalists is much less problematic than what will become of a republic that isn’t.
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The Jobber Barons
May 20th, 2014
By David Corbin.
With the summer employment season upon us, millions of high school and college students are pounding the pavement, looking for “help wanted” signs in the windows of local businesses. Unfortunately, many will find that there are too many applicants for too few jobs—the unemployment rate among 16-19 year olds remains almost 20%.
The Obama Administration’s solution is to make these jobs even more scarce by pushing for a massive increase in the minimum wage, from $7.25 to $10.10 per hour. In essence, the Administration is deliberately transferring wealth from less employable teens to more employable ones, creating a smaller group of better paid teens (and others) at the expense of a larger group of unpaid teens (and others). If successful, their artificial intervention into the job market (adding to the already artificial conditions created by the existing minimum wage) will mean that some larger number of teens will miss out on the experience, habits, and discipline summer work inculcates—of much more long-term value to most than a relatively little extra savings or spending money.
The unfortunate lesson for the attentive teenager is that what happens in Washington is as important to their employment status as what happens on Main Street. Many of their elders have, of course, already learned this lesson and adjusted their behavior accordingly—none more so than those at the head of the largest American corporations.
As Doug Bandow recently documented, the impending expiration of the federal Export-Import Bank has many of the biggest American businesses lobbying for an extension of the life of this corporate welfare dispenser. The Bank claims to have created hundreds of thousands of jobs, but in reality it has simply shifted jobs to the Bank’s favored clients (led by Boeing) from those companies that would otherwise have received loans in an open market–almost certainly at an overall net loss to the economy. Its impact on the credit market is equally predictable: subsidizing the loans of the too-big-to-fail banking giants while ignoring the often more financially responsible local and regional banks, a gratuitous insult on top of the great injury that the post-financial crisis regulatory regime (especially Dodd-Frank) has done to the small banks that had little or nothing to do with it, while perversely subsidizing those that did.
A few more brief examples might complete this survey of the contemporary (government) road to wealth. To date, some $5 billion has been appropriated by the government to fund Obamacare-related state health care exchanges. The well-documented results have often been disastrous. Oregon, at the head of the fraud, waste, and abuse line, spent $305 million to enroll . . . no one. Meanwhile, an anonymous whistleblower revealed last week that a federal Obamacare enrollment center in Missouri, funded by a $1.2 billion federal grant, is filled with data entry workers who spend the day refreshing their computer screens every ten minutes while waiting for the two or fewer applications each processes per month to come in.
Writing in the late 1800s, the Yale political scientist William Graham Sumner lamented the rise of “jobbery”—the “constantly apparent effort to win wealth, not by honest and independent production, but by some sort of a scheme for extorting other people’s product from them.” Unfortunately, he noted, “a large part of our legislation consists in making a job for somebody.”
Though the expansion of government power in the post-Civil War era created new opportunities for the jobbers—as the successive waves of Progressive-era expansion have continued to do so in the years since—the problem is as old as the American republic.
Defending the Constitution’s Article I, Section 9 prohibitions on state ex post facto laws, bills of attainder, and laws impairing the enforcement of contracts in Federalist44, James Madison argued:
The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.
What the Americans of the founding era needed, Madison argued, was relief from the “fluctuating policy” that had artificially privileged “enterprising and influential speculators” at the expense of the “more-industrious and less-informed part of the community.” This is the essence of the corporate welfare, crony capitalist state: a system where the easiest path to wealth does not come through enterprise, but through bending the law to one’s advantage.
There are at least three insidious consequences of such a system–in Madison’s day or in ours.
First, it creates a zero-sum competition for government-sanctioned advantage. As Albert Jay Nock famously noted in his early 20th century work Our Enemy the State, gaining wealth by political means is very different from truly earning it in economic exchange. Voluntary free exchange creates value on both sides of the transaction, but, as in the case of the Export-Import Bank, “legislative interference” just diverts wealth from one channel to another: one party’s gain is another party’s loss. And the general public loses in either case as tax dollars or regulatory privileges prop up one otherwise inefficient enterprise or another.
Second, such a system redirects the energy of the community away from “general prudence and industry” toward “speculations on public measures,” as Madison puts it. Why put in the long hours required to build a successful business, with all the risks of failure that attend the effort, when less effort can lead to much quicker and more spectacular success in the political sphere? A nation of political lottery-players is not the natural material of a self-governing community.
Third, as Madison notes, once the political lottery comes to town, it generates an infinite variety of new scratch tickets: a constantly churning legal system in which one “job” begets another, so that the solid, hard-working citizen comes to the justifiable conclusion that he is playing the sucker for the well-connected. It can’t be good for anyone to spend the day idly refreshing a computer screen—it must be difficult to feel the satisfaction of earning one’s living by honest labor in such a case—but this is merely an extreme example of a much larger phenomenon: the privileging of public or publicly-subsidized employment over the real wealth-producing efforts of those in the private sector. And sometimes, the results are worse than wasteful: witness what appears to be the criminal–even homicidal–abuse of veterans in the emerging VA scandal.
The authors of The Federalist argued that the remedy for jobbery, like so many political ills within a popular government, is the genius of republican liberty as given life by the American people. If the people do not demand an accounting of the improper administration of political affairs, no one else will. In the midst of the 2014 primary and general election season, the American people would do well to visit the excellent websites (here, here, here, and here) that track the unjust activities of the jobber barons and their political enablers. If these folks have your elected representatives in their back pocket, you would do well to help them join the unemployment line come the start of the 114th Congress.
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How Not To Fix The Second Amendment
April 22nd, 2014Last week, retired Supreme Court Justice John Paul Stevens suggested he could fix the Second Amendment with just “five extra words.” Given his political objective, if pressed, he might do more with even less, fixing the whole Constitution with just a one-word change in the preamble: “We the people government of the United States . . . ”
Stevens’s new Second Amendment is straightforward enough (his language in bold): “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.” In fact, according to Stevens, there is nothing really new about it. Rather, it restores what he takes to be the original intent of the Amendment, which he believes has been misinterpreted in recent 5-4 Supreme Court rulings (District of Columbia v. Heller andMcDonald v. Chicago) to protect a broad right of self-defense against not just national but also state and local legislation.
If Stevens’s is the true meaning of the Second Amendment (with or without his five extra words) then the Amendment rather surprisingly protects no one’s right to “keep and bear” their “Arms”–that is, it is compatible with a national law banning all private gun ownership.
Consider how this reading/revision of the Second Amendment fits together with Congress’s Article I, Section 8 power to regulate the militia:
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; . . .
Notice that the Congress has the power to “provide for . . . arming . . . the militia.” If the right to “keep and bear” arms only applies to those serving in the militia and the Congress has the power to supply the arms that those serving “keep and bear,” then militia members need only receive and then return their government-issued weapons when called in and out of service, respectively. The government, then, could decide who gets weapons–and when. Sportsmen across the country would have to hope they get called out to fight deer overpopulation each fall.
But, the careful student of the Constitution will object, the Congress still can’t ban the private ownership of weapons without a clause in the Constitution empowering it to do so. Even if gun-owning is not positively protected from federal interference, the structure of the Constitution–establishing a federal government of limited, enumerated powers–prohibits any interference with it by the Congress. This is true, but inadequate today, since the Court and Congress have all but turned that structure on its head–assuming that the federal government can act anywhere the Constitution does not forbid. Stevens certainly presupposes that such expansive federal power exists, advocating a number of otherwise unconstitutional national gun laws, which plainly belies his claim to anything so modest as a restoration of the founders’ original intent.
This development–predicted by more than one Federalist–explains why Alexander Hamilton opposed adding a Bill of Rights to the Constitution and suggests the reason he grounded his own justification of a right to self-defense (and, therefore, possession of the means necessary for it) in natural law, rather than the British common law tradition.
Hamilton defends the proposed Constitution in Federalist 28 by arguing that nothing within it, including its allowance for standing armies, would enable the federal government to usurp the people’s natural rights:
The whole power of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society . . . If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state.
A careful reading of Federalist 28 shows that Hamilton realized that any one of the three primary actors in American politics in 1787–the federal government, state governments, and the people–could challenge the supremacy of the others. Hamilton, a veteran who had fought in the American War for Independence against the injustices of the British Government, reminded the people of New York that the ratification of the Constitution would place them in a better position than ever to defend themselves against the abuses of either the state or the federal government.
Madison, meanwhile, proposed what became the Second Amendment in his speech advocating a Bill of Rights as a concession to Anti-Federalist concerns about the security of liberty under the original Constitution: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” In Madison’s construction, the right of the people to keep and bear arms is the primary clause–which is also true in the resulting Amendment, though the order of clauses has been reversed.
There is much more that could be said about the original intent of the Second Amendment, which is ably set forth by Justice Scalia in his majority opinion in Heller. Justice Stevens, however, cuts that debate short by quoting approvingly the remark made by former Chief Justice Warren Burger (five years after he retired from the Court) that groups like the NRA have perpetrated a “fraud . . . on the American public” by advocating a reading of the Second Amendment’s history and purpose very similar to Scalia’s.
Justice Stevens perpetrates what the uncharitable might call his own “fraud” in dismissing concerns, in the founders’ day and ours, that the right of self-defense is in danger.
He argues that it is “absurd” to think that the founders had anything like the “common-law right of self-defense” in mind when they framed the Second Amendment, a “procedural right that has always been available to the defendant in criminal proceedings in every state.” In other words, one needn’t worry: according to Justice Stevens, the right to protect yourself isn’t going and hasn’t gone anywhere.
Sounds good–except that the common-law right Stevens is talking about is not the natural (“original”) right cited by Hamilton, nor so well secured as Stevens suggests.
What is the “common-law right of self-defense”? The ability to defend yourself in court against a charge of murder or manslaughter, for example, by claiming you used deadly force only in self-defense. This, of course, is an important right that properly distinguishes criminal and non-criminal violence. Rightly understood, however, this “procedural right” is but a single consequence of a deeper right to self-defense that must include not just an acceptable legal plea, but, among other things, the opportunity to protect yourself against a government that has closed the courts and otherwise set itself against the people. Cut off from the broader natural law principle, there isn’t much left–especially if law-abiding citizens can be forbidden to own the weapons necessary to defend themselves from predators private and public. This is all the more true in the labyrinthine world of the common law, which is always subject to revision by a simple majority in a legislative body.
What does all this mean? That not only does the content of our rights matter, but also the ground upon which they are claimed.
There was a time when the government and the governed understood that both the common law posited by judges and the statutory law posited by legislators had to find its legitimacy in the natural law posited by their common Creator. Today, however, when, as George Will recently noted, democratic process rather than moral content has become the measure of a law’s legitimacy, the only rights Progressives like Justice Stevens offer are those that have run the gauntlet of democracy–which, in practice, means those which have the approval of the governing class.
Alexander Hamilton’s reference to the “original right of self-defense” is in keeping with the broader principles of The Federalist. When defending the Constitutional Convention against the charge that it had exceeded its authority, Madison appealed inFederalist 40 to the people’s natural right, asserted in the Declaration of Independence, to “alter or abolish” a government that failed to protect their rights. He made a different kind of appeal to nature in the same essay in arguing that the means (amending the Articles in the context) should be sacrificed to the end (establishing a good national government), not the reverse.
Madison submits in Federalist 40 that the “great principles” upon which the United States had been built had not changed since the Declaration of Independence. As with the natural right to self-defense, these principles are not the abstruse results of technical legal distinctions, but are grounded in common sense and plain for all to see. It is thus with confidence that Madison offers the Convention’s work to the people as a gift from their “friends,” expecting them to affirm that the Constitution speaks for “We the people”–not the governing class.
Though perhaps also offered from a friend, Justice Stevens’s proposal can neither expect nor deserve the same judgment.
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Publius And The Progressives
March 24th, 2014
By David Corbin and Matt Parks.
Confronting a movement wrapped by its own ecstatic vision of a just society
For the better part of a year, conservatives have been calling for the appointment of a special prosecutor to investigate allegations of IRS abuse in conjunction with the review of applications for non-profit status from Tea Party and related groups. Last week’s Wall Street Journal op-ed by Representative Jim Jordan (R-Ohio) suggested that there was good reason to believe that the investigation headed by the Department of Justice had been politically compromised, given that the “lead investigator is a substantial Obama campaign contributor, and Justice has already leaked that it doesn’t expect to prosecute anyone”–despite important inconsistencies between the law, the claims of former IRS agent Lois Lerner, and the documentary record.
Don’t expect the DOJ to be moved, despite Rep. Jordan’s intimate knowledge of the scandal as a member of the House Oversight Committee. Two weeks ago, it respondedto a similar call by Senator Ted Cruz by claiming that the case did not meet the (high) standards for appointing a special prosecutor, given that “career prosecutors and law enforcement professionals” are leading the investigation.
Although Rep. Jordan’s op-ed cited committee colleague Rep. Elijah Cummings’s concerns that the truth come out, too few on the left have been interested in more than the Republican-Democrat horse race implications of the scandal. With an election approaching (isn’t there always?), they fear that a real accounting of what appears to be a gross abuse of power will undermine their chosen “narrative” and push a few House or Senate seats into the R column.
Of course, motives need be no better on the right, but what is striking about today’s Progressives is how thoroughly they have embraced arbitrary power when exercised by their own. There is always plenty of hypocrisy to go around, but the generation that cut its political teeth opposing Nixon’s imperial presidency seems a rather unlikely apologist for Obama’s.
When we investigate the roots of the Progressive movement, however, the inconsistency quickly dissolves. From its beginning, it has embraced centralized power, employed through the fiat commands of ruling class politicians and experts as a legitimate and probably necessary means to realizing its utopian victory over the inequities of nature (and a recalcitrant people). The same power, however, used on the “wrong side of history” threatens that victory and is therefore illegitimate.
We have now written our way through the first of the two volumes of the Federalist Papers (essays 1-36), where Publius (pen name of Alexander Hamilton, James Madison, and John Jay) makes the case for ratifying the Constitution as the necessary “cement” to “secure” the Union. In almost every essay we have had occasion to reflect upon the gulf that divides the political thought of Publius from that of the Progressives.
Whereas the Founders thought ‘reflection and choice’ might allow their fellow Americans to understand the proper limits of politics, the dangers of faction, the necessity of the even-handed rule of law, and the use and abuse of power in securing liberty, we’ve noted that the Progressive departure on each of these fronts threatens to annihilate the American regime as originally designed.
The political calculus of the Federalists went something like this: the “safety and happiness” of the American people (as the Declaration of Independence put it) would be best secured by establishing a national government capable of preserving the Union, so long as its means and ends were kept within the bounds of reason and justice and its officeholders were accountable to those same people. This, they believed, the Constitution could do in a way the Articles of Confederation had not.
The history of the American republic down through the end of the 19th century gives ample evidence of this–not because American statesmen got everything right (far from it), but because the more faithful they were to the principles of the regime, the more the “safety and happiness” of the American people multiplied.
We are almost exactly as many years from the turn of the 20th century (a symbolic date for the start of the Progressive era) as that date was from the original Constitution Day, September 17, 1787. Has Progressivism met with the same success? Has Progressive ideology, when it has been practiced most, done the most to secure that same “safety and happiness”? What is the testimony of the last five years?
In a sentence, the American people are less safe and less happy.
President Obama has all but ended two wars–altogether different from winning them. Victory achieves a more desirable peace, at least for the victor. The president’s post-modern foreign policy seeks only youth soccer league victories where everyone gets a trophy from the ethereal “international community” and all agree to ignore anything unseemly on the actual field of play. If you want to know what real victory looks like, see Crimea.
Meanwhile, Congress’s approval rating is at an all-time low, the president’s approval rating is nine points under water, and only 27% of Americans think the country is moving in the right direction, nearly four years after the Administration’s self-proclaimed “recovery summer.” The temporary disassociation of the financial meltdown has yielded to a permanent malaise and expectation of worse to come–a rational expectation given that as the window to avoid an entitlement-driven bankruptcy closes, the president has created Obamacare, expanded Medicaid, and increased Food Stamps enrollment more than 50%.
Which leaves us with the Progressive response to its failures and our response moving forward.
Progressives account for their policy ‘hiccups’ by casually creating more disunion anddismantling the founders’ constitutional regime–which is to say, by negating the founders’ formula. A reading of the first volume of The Federalist makes it clear that the American Union as cemented in the Constitution is the best safeguard for American liberty.
As Americans confront the Progressive movement so wrapped up in its ecstatic vision of a just society, they ought not look for their own version of utopia. Rather, they should return to the founders’ more simple vision of a government strong enough to do its few tasks well and wise enough to know that it cannot and thus should not attempt to do more.
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Checks, Balances, And Checkbooks
February 25th, 2014By David Corbin.
Most governors play more the lamb than the lion in confronting centralized government“I don’t control the checkbook . . . I’m not the king of New Jersey. I’m just the governor.”– NJ Gov. Chris Christie
The recent Jersey Shore town hall meeting that many who are “Ready for Hillary” may have hoped would end Chris Christie’s threat to their champion took an unexpected turn in the direction of a primer on 21st century American federalism. More the lion tamer than the elephant in the room filled with 300 Garden Staters, Gov. Christie lamented that he had no control over federal purse strings. The real bully was the federal government, unwilling to return more than 61 cents on every dollar New Jersey residents send to Washington, D.C.
A more careful student of politics and less careful politician might have seen this coming.
In 1987, the Supreme Court ruled that Congress could withhold a percentage of transportation funds from states that allowed drinking by those under 21 years of age; that is, that the Congress could attempt to do indirectly what it could not constitutionally do directly: establish a national drinking age. The federal government had long been understood to be able to attach qualifications to the spending of taxpayer dollars, like work requirements for welfare recipients. But, as Justice O’Connor noted in her dissent, this decision affirmed the government’s ability to use its spending power to make policy in areas only distantly related to the purpose of the spending: obviously, maintaining federal highways and deciding whether college students can drink are two different matters. Whatever the merits of the 7-2 ruling, however, the real story is that while only fifteen states had a drinking age of 21 before the law was passed (1984), all fifty had adopted that policy within a year of the court’s ruling.
This may not surprise us, given the degree to which the states depend on federal funds to fill the holes in their budgets. But it does illustrate well the consequences of such dependency for the independence of the states and the prospects of a state-level check against always-expanding federal authority today.
The theory of checks and balances so famously described in Federalist 51 and embedded as a central principle in the Constitution has both horizontal and vertical dimensions. We are much more familiar with the horizontal: the veto power the president can use to check congressional overreach, the impeachment power the Congress can use against the president, and the like. Each of these powers allows “ambition” to “counteract ambition”–providing the “constitutional means” to go with the assumed “motive” necessary to limit violations of the Constitution.
The ways that these horizontal checks have broken down is a subject for another essay (stay tuned!), but the same mutual ambition was expected to define the relationship between the federal government as a whole and the individual states, maintaining the delicate balance between the powers of the two.
As Paul David Miller recently noted in this same space, an essential element of that vertical check-and-balance system was lost with the ratification of the 17th Amendment, establishing the direct popular election of U.S. senators. Senators have too often become creatures of Washington, rather than representatives of their home state, as Senator Pat Roberts’s recent contortions to establish his Kansas residency bonafides amply demonstrate.
This change has made it more likely that the federal government would encroach on traditionally state ground and more difficult for the states to resist that encroachment. But the story of (especially recent) federal expansion can’t be told without acknowledging that too often most, if not all, states are content to cede power to the national government so long as money or some residual authority flows back in their direction.
Some deals, of course, are better than others. The Medicaid expansion that is a part of Obamacare pays 100% of state costs with federal dollars through 2016 before that figures begins to taper off to 90% by 2020. Since, however, the typical federal share of Medicaid spending is 57%, the states that sign on may find themselves holding the bag in a few years, when the federal deficit is expected to grow rapidly again and the terms of the original deal have expired.
But the deeper problem with the pattern of friendly negotiations that defines and redefines federal-state government relations today is that the negotiators act as if the people haven’t already defined the pattern for those relations in state and federal constitutions.
Alexander Hamilton didn’t miss this point. In Federalist 32, he defended the federal taxing power authorized by the Constitution, while showing it was compatible with a similar state power. He argued that federal authority would preempt state action in only three cases: (1) “where the Constitution in express terms granted an exclusive authority to the Union;” (2) “where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority,” and (3) “where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.” Since only a small number of items fell within these categories, the original balance of power between the states and federal government tilted heavily toward the states.
But what would maintain this balance? What would prevent an “entire consolidation of the States into one complete national sovereignty”? Anti-federalists read the Constitution’s “necessary and proper” clause (Article I, Section 8) and saw an opening for expansive federal power. They read the “supremacy clause” (Article VI) and saw a power to trump state laws or even constitutions. The Federalist as a whole provides several responses to these questions and concerns, but Hamilton’s answer at the beginning of Federalist 32 gives us an instructive glimpse into the sources of our present difficulties.
Even if, Hamilton supposes, there were no constitutional protections for the state power to tax, “the sense of the people, the extreme hazard of provoking the resentments of the State governments, and a conviction of the utility and necessity of local administrations for local purposes” would prevent the national government from usurping that authority.
Today, of course, it is neither the universal “sense of the people” nor conviction of our leaders that “local administrations for local peoples” are good and necessary. Central to Progressivism, in fact, is a strong presumption toward uniform national administration in all areas of policy. Yet the real laugher today in Hamilton’s argument, as Governor Christie’s town hall meeting demonstrated, is the idea that there would be an “extreme hazard in provoking the resentments of the State governments.”
Many in the mainstream media expected (and probably hoped) that Governor Christie’s town hall meeting would provide new fuel for the Traffic-Gate fire. Instead, it ironically showcased the power he didn’t have, much less abuse. As long as state governments continue to meet the federal government with their hands out rather than their (constitutional) fists up, even the baddest governor will play more the lamb than the lion in confronting the “great and radical vice” that has helped corrupt American federalism and bankrupt America.
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Recovering The Habits Of Self-Government
January 28th, 2014
By David Corbin.
The opening ceremony of each Olympics is a revealing window into the character and aspirations of the host country. China’s 2008 bigger, louder, longer spectacular left little of her hegemonic ambitions to the imagination; Britain’s 2012 descent into self-parody–from Shakespeare and Churchill to dancing nurses on government hospital beds and fake action heroes parachuting with figurehead monarchs–testified equally well to her flaccid quiescence. We can expect something along the Chinese line from Russia in a couple of weeks, but suppose Chicago had been successful in its bid to host the 2016 summer games. What would an opening ceremony in President Obama’s America (and hometown) look like?
Probably all too much like the British–another glimpse of the sun setting in the West: An opening dance number featuring Julia leading Pajama Boy around a cheery Organizing for Action office; an alternative lifestyles choir singing “We Are the World”; a video tribute to historic woman chiefs of state set to a mashup of Fleetwood Mac hits (ready for Hillary?); and, of course, a speech by the president himself as the better-than-fireworks grand finale–teleprompter, Greek columns, and all.
“Where have you gone, Joe DiMaggio? Our nation turns its lonely eyes to you.”
That the American regime, and American political culture with it, has changed is without question. But for those who yearn to recover some of the better aspects of the regime and culture that has passed us by, the question is: how?
Alexander Hamilton, perhaps more than the other founders, appreciated the many non-legal factors that shape a people’s political life, including especially their customs and affections. Hamilton, for example, argued inFederalist 27 that the American people would become more attached to the national government as they had more direct connection with it under the Constitution–that it was not so much the change in the law as the change in their experience that would reconcile them to necessary federal authority.
Alexis de Tocqueville elaborated on this point two generations later in arguing that mores–the “habits of the heart” as he put it in Democracy in America–are, in fact, more important than laws in defining national character.
If Hamilton and de Tocqueville are right, then Americans seeking a political reformation in the United States would do well to focus on rebuilding a culture of responsible self-government– recognizing that fundamental changes in the law will follow, more often than lead, the affections of the American people.
What might that look like? Below we suggest some possibilities, but before we think about how to cultivate the habits of a free people, we need to reflect at least briefly on our present ones: we cannot travel to another place if we don’t know where we are and how we got here. While it would be impossible to catalog in a detailed manner the specific habits of 320,000,000 Americans, it is possible and helpful to sketch the broad dimensions of American political culture at the beginning of the 21st century.
When carried to term, Americans make their way in life with different natural aptitudes and under varying environmental circumstances, given the host of moral, familial, economic, and educational particulars involved. The transformation of the American regime from the Founding to the present day has brought with it a change in our habits in each of these areas of our lives.
Our moral impulse has shifted in part from an obligation to God (and thus to one another as an outgrowth of our love for God) to an obligation to seek social justice, as we define it, in resistance to the arbitrary decrees of an unfair universe. The encouragement to exercise personal choice has transformed the family in part into a hub that functions to make individual choice limitless (including the choice to leave the family behind) rather than existing as a permanent, irrevocable, and necessary association that satisfies the human longing for completion. We’ve too often embraced the economic idea that there would be more than enough to go around if free markets weren’t free, while winking at an off-the-books corporatism that bites the entrepreneurial hand that once fed American productivity. Our K-12 and higher educational systems are a continuing exercise in worshiping these new religious, family, and economic idols.
That these changes have done the most harm to the weakest among us–those who can least afford the consequences of bad ideas–is the American tragedy of the last fifty years. The American tragedy of the next fifty years may be the near universalization of the underclass experience as these ideas take deeper root and their consequences multiply.
As those who make New Year’s resolutions to run a half-marathon do not begin their training regimens by setting out on six-mile runs on January 1, reformers of the American political community would do well to encourage Americans through their reforms to get in the practice of exercising the habits of a free people in an accessible, demonstrable, and contagious manner. Proposals like these (among many)–all relatively modest and measured steps authored by conservative political leaders or think tanks–would help move us in the right direction.
Each of these proposals involves a relatively small action by the federal government that opens up room for all sorts of creative and unpredictable actions by states, private groups, and individuals. They all empower–not only by limiting legal restraints, but by communicating that the American regime, at least in some areas, is willing once again to treat the American people like responsible adults. A political platform filled with such proposals would answer critics of do-nothingism in the 2014 elections and beyond while promoting the culture of self-government we so desperately need.
We understand well the desire of many to add additional protections for liberty to the Constitution and admire the manifold efforts of conservatives and libertarians to restore constitutional republicanism to the United States. We believe that the best starting point for such a project reaches beneath the Constitution to the mores that shape our interaction with it. An American people re-habituated to responsible self-government would want a modest federal government with or without strict constitutional limitations–and, as our recent experience shows, an American people too easily reconciled to dependency and bureaucratic administration will ignore those limitations (new or old) and support political leaders who do the same.
David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter orFacebook.
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The Real Elephant in the Room
November 18th, 2013Republican establishment front-runner Chris Christie’s landslide victory in New Jersey’s gubernatorial election on Tuesday could not have come at a better time for Christie supporters.
Mark Halperin and John Heilemann’s just-released book on the 2012 presidential election, Double Down, documents in a rather unflattering way Mitt Romney’s decision not to select Christie as his vice-presidential running mate. Romney’s team found Christie too large, too loud, and, for many a campaign event, too late. Most troubling for some in the Romney camp was the feeling that there were too many skeletons in Christie’s lobbying closet. One high-level staffer posited, “If Christie had been in the nomination fight against us, we would have destroyed him.”
Halperin and Heilemann report that Romney had two principal criteria in vetting potential running mates: that “they be qualified and immediately perceived as qualified to be Commander in Chief, and that there be nothing in their background that could become a distraction for the campaign.” Christie’s past was a distraction.
But Christie seems to have lost on style points more than anything else, given the marked contrast between his person and persona and those of the athletic, deliberate, altar-boyish Paul Ryan that Romney chose to take to the presidential prom.
Whether Christie is ultimately the man for the Republican party establishment remains to be seen. If they’re looking for someone who wins elections by countering Democratic Progressivism with everyman pragmatism, they need look no further. His “whatever works for New Jersey” approach to governance certainly satisfies the postmodern demand for a politics big on personal authenticity but wary about moral absolutes.
Can “whatever works for America” carry Christie to victory in 2016? That may depend on whether bully pragmatism sells better than Romney’s consultant pragmatism.
But the more important question is whether “whatever works for America” will actually work for America.
A political party that is more than mere faction asks first: what does the country need? A political party that is more than a debating society then asks: what does the country want? The United States needs, most of all, to arrest its march toward national suicide–whether by social disintegration or fiscal insolvency.
The GOP establishment, allergic to uncomfortable moral claims, wants to ignore the first problem and manage the second. Their pragmatist track record suggests, however, that even on their chosen (fiscal) ground, they will be a generation late and a $100 trillion short–exactly because of their unwillingness to acknowledge the moral root of our will-to-bankruptcy.
In Federalist 15, Alexander Hamilton exposes the limits of such halfway politics:
It is true, as has been before observed that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success.
A serious remedy to the problems that arose under the Articles of Confederation required a willingness to confront and correct the ultimate source of the trouble, what Hamilton called the “great and radical vice” of the system.
Members of the GOP establishment and the ruling class in general are typically willing to acknowledge that our current entitlement regime is unsustainable. Yet insofar as they either support or are unwilling to fight its expansion through Obamacare or suggest that a relatively minor tweak in tax rates or benefits can resolve our difficulties, they commit the same error identified by Hamilton in his critique of anti-Federalists.
The “great and radical vice” of our entitlement system is its dependency on an intergenerational transfer of wealth from the young to the old. This would work financially if the size and life expectancy of every generation were the same—but it is a formula for disaster in the real world, where life expectancy is increasing and fertility rates are decreasing.
The results are predictable: in 1960, there were five workers for every Social Security beneficiary. By 1965, it was 4. Since 2010, it has been less than 3, on its way to 2.2 in 2030.
What has been the pragmatist response to this long-foreseen problem? Modest increases in tax rates and the retirement age and massive increases in programs and beneficiaries, including the addition of Medicare in 1966, the prescription drug benefit in 2003, and now Obamacare–plus gimmicks like the Social Security Trust Fund that make it look like the math works for a while longer.
Pragmatism plainly hasn’t worked even with its willingness to overlook the immorality of this intergenerational transfer. Consider this: those who turned 65 in 1960 got more than $6 from Social Security for every dollar they put in. Those who retired in 1980 got $2.12; 2010, $0.92. And those who retire in 2030? $0.84. This isn’t about social contract justice; it’s about winning (and more and more losing) the generational lottery.
But even this understates the injustice to the young since, despite this negative return on their “investment,” Social Security and Medicare will add $344 billion to the national debt in 2013–with no end to the red ink in sight.
Any serious entitlement reform has to start with the principle that each generation pays its own way–and the closer we can get to a system where each individual pays his own way, the better. There are any number of ways to do this that continue to protect the genuinely disabled and disadvantaged.
But efforts to address our fiscal crisis that leave its principal cause in place can only succeed at reinforcing the pragmatist’s rob Peter (tomorrow) to pay Paul (today) ethic, so toxic to our national political health.
And is Governor Chris Christie ready for this challenge? His time in Trenton suggests otherwise. To his credit, he’s negotiated more budget-friendly contracts with public employee unions and dedicated more monies to long underfunded state pension liabilities.
But, after two years of fiscal discipline, he has expanded spending rapidly in his last two budgets and used one-time payments and short-term gimmicks to balance them. And while it’s good local politics to jawbone Congressmen holding up federal disaster relief money, there’s no one to turn to when the Washington well runs dry–except the already overburdened generations to come, who offer a very convenient exception to that most American of political principles: “no taxation without representation.”
Our honor and their justice demand a different way forward: one that, to paraphrase Lincoln, just might make the republic we save a republic worth saving. For the Republican party and the United States, that’s the real elephant in the room.