Letters from an Ohio Farmer

The Particular Glory of This Country

To the Members of the 112^th Congress:

Of all the freedoms protected by our Constitution, none is more cherished – and sometimes more difficult to think through – than religious freedom. We have been reminded of this in the Obama administration's recent decision to require church-backed employers to provide employees with insurance coverage for contraception. After religious organizations protested that this rule would force them to act against their conscience, the administration changed its rule and reached what the President called an "accommodation." This may or may not have solved the immediate problem, but it definitely did not answer the bigger (and more important) question: When should religious groups get an exemption from the law for their beliefs and practices?

Constitutional thinking has not been as consistent as it might have been on this question. The Supreme Court, for example, said in 1963 that religious beliefs and practices deserve an exemption from a law if they are burdened by it. But in 1990 it declared by a split vote that no one has the constitutional right to an exemption from a generally-applicable criminal law, no matter how much it interferes with his beliefs or practices – and no matter how important those beliefs or practices are to his religion. Congress tried to respond in 1993 with the Religious Freedom Restoration Act, which said that states had to exempt religious practices and organizations from burdensome laws unless they had a compelling interest not to do so. But the Court struck down that law in 1997, claiming that Congress did not have the power to expand constitutional freedoms when dealing with the states. In 2006, however, the Court admitted that the Act did still apply to the Federal Government.

The Court should have listened all along to Congress, which was following the lead of the Father of the Constitution himself, James Madison. A concern for religious freedom pushed Madison into his first foray in politics, which came at the Virginia Assembly of May-June 1776. There he successfully moved to amend the Virginia Declaration of Rights to say that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience" – language that he cribbed from later, when he wrote the First Amendment in 1789.

One year after penning the First Amendment, Madison's principles got put to the test while he was serving in the House of Representatives. In December 1790, the House was debating who should serve in the federal militia when it received a petition from the Quakers, who asked to be exempt from military service on the ground that "all revenge, animosity, strife, and contention are utterly forbidden by Christ our Lord." Many Congressmen denounced the Quakers' request as unpatriotic and dangerous, but Madison took to the floor to say that they should be granted an exemption.

According to Madison, each of us has a fundamental natural right to our religious beliefs and practices, which can never be taken away or given up. This freedom includes the right to form and communicate our beliefs – and to practice them unless those practices harm "the rights of other citizens" or "the permanent and aggregate interests of the community," as Madison put it in Federalist 10.

Looking at the Quakers' request, Madison admitted that there were arguments on both sides, but he concluded that Congress should grant the exemption because it was necessary to protect the Quakers' religious freedom, and would not harm other citizens' rights nor undermine America's interest in a functioning militia. He knew that even if the Quakers did not serve in the militia, other citizens would do their "honorable duty"; and he understood that "by penalties we may oppress the Quakers, but by no means hitherto discovered, can you make them undertake the defense of this nation." They would go to jail rather than go against their conscience, which would not help anyone. Despite Madison's appeal, the Quakers did not get their exception. Congress voted to leave the matter to the states.

But Madison got the principle right, and we can apply it to our day. Consider the recent contraception controversy. Exempting religious organizations from providing contraception coverage protects their freedom and would not violate anyone's rights:  employees would still be free to buy and use contraceptives, just like people who are free to purchase other health care goods that aren't covered by their particular insurance plans.

Nor would an exemption hurt the "permanent and aggregate interests of the community." The health care system would not be harmed. Hawaii, for example, already permits religious employers to enroll workers in a plan with a reduced premium, and allows employees who want contraception to pay for the coverage out of their own pocket. Health care has not suffered in Hawaii, and those who want insurance coverage for contraceptives can have it.

Unfortunately, the Obama administration did not originally approach this issue with such principles in mind. Even the recent "accommodation" may not be enough. If Congress needs to respond with a law, it should.  The issue is simply too important. As Madison reminded his fellow Congressmen in 1790, religious liberty must have the full protection it deserves, especially in America, because "above all it is the particular glory of this country, to have secured the rights of conscience which in other nations are least understood or most strangely violated." His words are as true today as when he spoke them.

Ohio Farmer

Certain Unalienable Rights

To My Fellow Citizens:

Do we have a right to health care? 

In the debate over President Obama's health care law, we've heard a lot about costs and constitutionality, but we haven't heard enough about this more fundamental question, which underlies the whole health care debate.

Those in favor of the law join President Obama in insisting that health care "should be a right for every American" and that the federal government must secure that right for all. Those on the other side have usually avoided the larger question in favor of economic and legal arguments: "It will cost too much!"; "It will hurt medical care!"; "It is beyond the legal power of Congress!" These are powerful arguments and certainly need to be made, but they concede too much of the moral high ground.

To recapture that ground, we need to be clear about what we mean by a "right to health care." Americans certainly talk a lot about rights, which makes sense given that our Declaration of Independence proclaims that it is to secure their rights that "Governments are instituted among men." But are the advocates of the "right" to health care understanding rights as our Founders did? When the American revolutionaries talked about the rights governments are established to secure, they meant "natural rights," as we can see in the preamble to the Massachusetts Constitution of 1780 written by John Adams:

The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquillity, their natural rights, and the blessings of life….

When President Obama talks about the "right" to health care, it is clear that he is talking about privileges or entitlements rather than natural rights. A privilege is a supposed good thing that is given and taken back at the will of the person who gives it. As every teenager has heard, "driving is a privilege." Parents can take away the keys to the car and a state government can change the age at which young people can drive. One can say this teenager or that teenager, or all teenagers, "should"or "should not" be granted the privilege of driving, as President Obama thinks all Americans "should be" granted health care.

Natural rights are not like that. All human beings are born with them—endowed with them by our Creator, as the Declaration of Independence says—not given them by any government.  It doesn’t make sense to say all Americans "should" have or "should not" have the right to life, for example: we "do" have it, as do all other human beings, simply by virtue of being human beings. Government exists to protect our natural rights, not to grant them. And certain of these rights, like the right to life, no one on earth can give or take away: they are "unalienable."

Just as natural rights are not privileges, they also should not be confused with entitlements. An entitlement is something that a person deserves to have given to him by someone else (and clearly this is much more what President Obama and his allies in the health care debate mean when they call health care a "right"). Natural rights are not entitlements. No human being or government can give them to us; we are born with them.

To think of health care as an entitlement, as President Obama does, is to think that all Americans somehow deserve to have health care given to us. But is that not absurd, and does it not tread heavily on our real rights? Health care is provided by people who choose to become doctors, nurses, therapists, and aides. What "right" do we have to force them to give us their services—anymore than they have a right to force us to give them our labor, whatever our job is? After all, if no one chooses to become a doctor, how could we demand to have a doctor's services given to us? Could we rightly force an unwilling person to become a doctor just so we could make her give us medical services? Of course not.

If Americans concede that health care is a "right," as understood by the advocates of ObamaCare, we will have greatly jeopardized the rights for which we instituted government in the first place. We will have greatly diminished the principled moral ground on which to resist government's growing power, not just over how we seek and provide health care, but over our rights to life, liberty, and the pursuit of happiness altogether.  Getting clear on what we mean by "rights" is vital not only to knowing how to truly reform health care but to preserving limited, constitutional government.  

Ohio Farmer

Free Speech and Free Politics

To the Members of the 112^th Congress:

"Congress shall make no law . . . abridging the freedom of speech."  Two years ago the Supreme Court ruled in Citizens United v. Federal Election Commission that important features of the Bipartisan Campaign Reform Act of 2002 violated this First Amendment ban on laws abridging the freedom of speech. (As you know, this federal law is more commonly known as the McCain-Feingold Act, after the two senators who sponsored it.)

McCain-Feingold prohibited labor unions and corporations, both for-profit and non-profit, from broadcasting "electioneering communications" that mentioned political candidates by name less than 60 days before a general election or 30 days before a primary election. In the course of enforcing the law the Federal Election Commission (FEC) told the non-profit organization Citizens United that its plan to run television commercials for its documentary, "Hillary: The Movie," would constitute an illegal electioneering communication during the 2008 presidential election.

No opponent of campaign finance regulation ever wounded that cause more than did one of its advocates, deputy solicitor general Malcolm Stewart. Defending the suppression of "Hillary: The Movie" before the Supreme Court in March 2009, Stewart said in response to the justices' questions that McCain-Feingold's electioneering communications provision was broad enough to authorize FEC to ban a corporation in the business of publishing books from bringing out a 500-page book if even one sentence discussed a candidate by name. Stewart's answer elicited audible gasps in the courtroom.

It was no surprise, then, when a majority of the Supreme Court struck down McCain-Feingold's restrictions on "independent expenditures" by unions and corporations. "If the First Amendment has any force," the majority opinion stated, "it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

Not only did four justices dissent strongly from this view, but President Obama devoted a weekly radio address to attacking the ruling. The Court had opened "the floodgates for an unlimited amount of special interest money into our democracy," he said, giving "special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way – or to punish those who don't." Other critics were less measured, calling Citizens United a "devastating decision" that shows "we can't expect the judiciary to protect average citizens from the power of big money."

Two years of seething by Citizens United's opponents, however, have not produced a coherent response to it. Politicians and activists have proposed various constitutional amendments. One of the most sweeping stipulates that, rather than just limiting corporations' rights to participate in the political process, corporations shall have no constitutional rights, such as the due process right to sue if the government seizes their property.

One of the ironies of these efforts is that most of the advocacy groups behind them are incorporated, meaning their success would curtail their own ability to affect the political process. The Sierra Club, for example, was fined by FEC in 2006 for distributing pamphlets contrasting candidates' views on environmental issues. Another irony is that the Left's causes and candidates have relied as much as the Right's on political "venture capitalists." In 1967 a handful of millionaires opposed to the war in Vietnam contributed $1.5 million – worth about $10 million today – to bankroll Senator Eugene McCarthy's challenge to Lyndon Johnson for the 1968 Democratic presidential nomination. One of those wealthy contributors, an heir to a General Motors founder, bankrolled George McGovern's presidential campaign throughout 1971 until some primary victories in 1972 allowed it to attract other donations.

The range of political purposes advanced by donated money highlights the central failing of the campaign finance reform effort. Nearly 40 years after Watergate gave rise to the modern wave of reforms, we still have no idea what constitutes a fair campaign finance system. All attempts to define such a system in terms of political processes wind up proscribing or threatening activities, like publishing pamphlets comparing voting records or books critical of politicians, at the heart of both our inalienable rights and a vigorous democracy. In explaining how democracy became a social reality as well as a political one in the Jacksonian era, one historian wrote, "The way to get into American democracy was to get into it. Ask nobody's permission, defer to nobody's prior claim." The campaign finance reform project culminates in a frightening regime change, where the only way to get into American democracy is to get authorization from the political process hall monitors.

Since no one can explain what distinguishes licit from illicit political processes, it's hard not to suspect that the culmination of campaign finance reform is an intended set of political results. All the efforts to "level the playing field" proceed without reference to any standard of evenness or fairness lying beyond the playing field. The levelers who tilt the playing field this way and that will conclude their work is done when the right team wins, not when they've met some comprehensible criteria of procedural fairness. We need to amend the Constitution to overturn Citizens United, one senator maintains, since that decision "tilted the balance of power toward the rich and the powerful at a time when the wealthiest people in this country have never had it so good." We'll know we've tilted it back just far enough, apparently, when President Dennis Kucinich is delivering his inaugural address.

Ohio Farmer

 

Preserving the Constitution and the Nation

To the Members of the 112^th Congress:

These letters hope to find, in the continually arising, pressing political questions and choices of the moment, those principles or observations that have always been and will always be necessary to our deliberations as a free people.  We think there may be a good occasion for this in the President's recent decision to sign the National Defense Authorization Act (NDAA).

For some of the voters who were most enthusiastic about Barack Obama in 2008—those who have since then been disappointed by the President's decisions about enhanced interrogation, the detentions at Guantanamo Bay, and warrantless wiretapping, for example— this was the last straw. After first threatening to veto the bill, President Obama signed it into law, despite warnings from fellow Democrats, such as Senator Bernard Sanders of Vermont, that it would "essentially authorize the indefinite imprisonment of American citizens without charges." The New York Times editorialized against its "terrible new measures that will make indefinite detention and military trials a permanent part of American law."

These are minority positions, however, even among Democrats. Nancy Pelosi and Harry Reid joined John Boehner and Mitch McConnell in voting for NDAA. A liberal Democratic president, supported in the main by his party, has taken a position on calibrating civil liberties in light of national security imperatives that affirms more than it repudiates his conservative Republican predecessor's policies.

One explanation of this quasi-consensus in favor of giving the government the power to circumvent normal criminal procedure and circumscribe peacetime civil liberties is that national security is a hard, grave business. Candidates who spoke as glibly as bloggers and editorialists about respecting boundaries regardless of the consequences become far less categorical when they're in important positions of national power and must confront just how horrific those consequences might be.

Drawing the lines and rightly understanding the nation's exigencies is not merely a post-9/11 problem. The most famous example in our history is Abraham Lincoln suspending the writ of habeas corpus – first by executive order, later according to congressional enactment – as secession and civil war consumed the nation in 1861. He defended his actions in a message to Congress: Are "all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the [president's] official oath [of office] be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?"  Lincoln elaborated his point in 1864:

My oath to preserve the constitution to the best of my ability imposed upon me the duty of preserving, by every indispensable means, that government – that nation – of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.

Of course, the government might mistakenly or cynically claim that the preservation of the nation mandates otherwise unconstitutional actions. In 1944 the Supreme Court upheld the constitutionality of sending over 100,000 Japanese Americans to internment camps after Pearl Harbor, a policy implemented by two of the great liberal heroes of the last century, President Franklin Roosevelt and Earl Warren, later Chief Justice of the Supreme Court but at the time the governor of California. Eight years later, however, the Court ruled that President Harry Truman had exceeded his constitutional and statutory authority when, during the Korean War, he issued orders nationalizing the steel industry to prevent a strike by the United Steelworkers from shutting down the mills.

The "war on terrorism," unlike the Civil War or World War II, is not going to conclude with a formal surrender. Since we won't know when it's over, we have reason to wonder if it will be over. The idea that otherwise unconstitutional measures might, because of an existential threat, become lawful means to preserving the nation requires a bigger, more difficult investment of citizens' faith if the existential threat is not an episode but an open-ended state of affairs.

Even if we're not at war in the aftermath of a terrorist attack that killed thousands of Americans in a single day, we all know we're at … something. There is no tidy formula that defines the circumstances under which otherwise unconstitutional actions may be rendered permissible, especially in the treacherous, uncharted waters we must navigate. In the absence of such a formula, the position of ardent civil libertarians is that the only way to avoid a slippery slope to tyranny is to insist that there are no circumstances, ever, where grave national threats justify ordinarily unconstitutional government actions.

A more comprehensive but less clear-cut position is that the idea of eternal vigilance being the price of liberty works two ways: First, we must be vigilant against all enemies, foreign and domestic, whose threats may sometimes require the government to preserve the nation by taking actions that would ordinarily be impermissible. Second, we must be vigilant against the government, especially when it claims that grave dangers justify extraordinary actions. There are no guarantees, but the continuous exercise of both kinds of vigilance gives us our best hope for preserving our freedoms, and the political order in which they are embedded. This dilemma is a permanent feature of the challenge to make an experiment in self-government succeed.

Lincoln asked 150 years ago, "Is there, in all republics, this inherent, and fatal weakness?  Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?"  Our experiment in freedom, it seems, has always been and will always be in part an answer to that question.

Ohio Farmer

Progressives and Regressives

To My French Friend:

You raise lots of good questions, Jean-Luc, about my previous letter on the speeches of Presidents Theodore Roosevelt and Barack Obama at Osawatomie.  For the moment, let me comment on just one.  

I think you are right to say that Mr. Obama drew a false parallel in his speech, when he compared himself to Roosevelt as he did.  Just as Roosevelt argued that the government had to have more power to counter the centralization in corporations of the wealth and power created by the industrial revolution, so did Obama argue that the government required yet more power to counter the centralization in corporations of the wealth and power created by the information revolution, the more recent transformation the President acknowledged our economy has gone through.  

The problem with this parallel is that the two revolutions are very different—in fact, they are opposed—in their effects.   Corporations centralized power during the industrial revolution because it was the most efficient way to get their work done.  All decisions, all actions require information.  Manufacturing a product requires thousands of decisions, for example, about raw materials, design, marketing, and many other things.  Getting the information to make those decisions is costly.  Bringing all those decisions and the processes they make possible under central control in a corporation reduces those costs.  Furthermore, when dealing with a mass of less skilled workers a hundred years ago, it made sense to give them simple tasks and to centralize control over them by giving them rules and regulations that they had to follow in carrying out those tasks.  The information revolution is changing all this. 

Consider your own situation.  You design and can manage industrial control systems for corporations around the world from France because the internet connects you to thousands of sensors that automatically feed you information.  The cost of gathering the information you need to decide and act on a problem in a California plant is a fraction of what it would have been even a few decades ago for the plant itself to do that work.  And you can do it more cheaply than they can because you can do it for many others at the same time.  Furthermore, you and your colleagues are skilled.  The company in California does not need to give you detailed rules on how to do your work.  In fact, such rules would make you less useful and productive.  They merely tell you what they want and they leave it to you to figure out how to do it.  The information revolution means that corporations can and need to decentralize, to disperse their power and authority. 

The administrative state of rules and regulations that Theodore Roosevelt championed was a response to industrialization.  The industrial age is ending, as the President himself acknowledged.  Shouldn’t the administrative state be ending as well then?  Instead, the President proposes more rules and regulations.  

Everywhere we look, whether the streets of Cairo or New York City, offices in France or family rooms in America, the information revolution is putting more information and thus more power into the hands of individuals.  Everywhere that is but in the minds of people like the President who acknowledge that our case is new, but who cannot think or act anew.  It is striking how backward looking, how trapped in the past so-called progressives are.   I agree with you that they should be called regressives. 

It is true, of course, that the transfer of power to individuals that I just spoke of will never be complete.  Neither you nor I are arguing for some kind of absolute individualism.  As I noted in my previous letter, we acknowledge, for example, that governmental action is necessary to ensure that none have unfair advantage.  But this does not mean that government action and power must always be the same or must always grow.  Given the information revolution, the transformation that the President acknowledged, our real task is not to keep building up the centralized industrial age bureaucracy but to figure out what aspects of that bureaucracy we can do without and what might need to be preserved but changed. 

The transformation we are going through has the potential to enhance human freedom, but while the President acknowledges the transformation, he does not acknowledge its potential.  At Osawatomie, he presented it not as an opportunity but as a problem that only government could fix.  If Jefferson were alive today, I think he would see this potential for freedom as he once saw such potential in America’s abundant land.  Living on one's own land, Jefferson thought, was the best way to ensure that citizens would live free and be safe in the enjoyment of what they labored to achieve.  Our circumstances have changed.  The age of the family farm has passed for most of us.  But the age-old longing for freedom and justice that Jefferson sought to satisfy can find fulfillment still, I believe, in the new forms made possible by the latest transformation of our lives.  Indeed, that transformation can give fresh life to individual liberty.  We should not let it be smothered in rules, regulations, and thinking suited to a by-gone era. 

There is more to say about all this, Jean-Luc, as you know, and I look forward to our future correspondence.

Ohio Farmer

 

Enlightened and Patriotic Councils

To the Members of the 112^th Congress:

As we search for ways to restore constitutional self-government, our attention gravitates to questions of war and peace. Nothing is more urgent for a country than such questions, and yet what the Constitution says about war powers has been a source of controversy for almost as long as America has existed as a sovereign country.

The controversy seems to be rooted in the nature of the war power itself. What kind of power is it?  The political thinker John Locke, often consulted and quoted by the American Founders, wrote that "legislative power" is the power of a people to make the "established, settled, known law, allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them." As we know, Article I gives Congress "all legislative power herein granted." At the same time, Article II vests the president with the "executive Power," which is the power to give the law what Locke calls its "due execution." Is the war power a legislative or executive power?  

The Founders' answer seems to have been "neither" – or "both." Besides the legislative, executive, and judicial powers that we are all familiar with, there is another power of government that Locke describes as the "federative power." This "contains the power of war and peace, leagues and alliances, and all the transactions with all persons and communities [outside] the commonwealth." The federative power is something like the broad power of dealing with foreign affairs as a whole.

Our Constitution appears to divide what we might call the foreign affairs power – of which the war power is a part – between Congress and the president. On the one hand, Article I gives Congress the power to regulate commerce "with foreign Nations," "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations," and, of course, "[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

On the other hand, in Article II the president is "Commander in Chief of the Army and Navy of the United States," has "Power, by and with the Advice and Consent of the Senate, to make Treaties… and appoint Ambassadors, other public Ministers and Consuls," and "shall receive Ambassadors and other public Ministers."

So Congress generally seems to have the aspects of the foreign affairs power that are legislative in character while the president has those that are executive in nature. That is, Congress has the powers that relate to making rules that govern the legal status of the U.S. or its citizens vis-à-vis other countries. At the same time, the president's foreign affairs powers concern matters that, as Alexander Hamilton says in Federalist 70, require "[d]ecision, activity, secrecy, and dispatch."

When we are trying to understand a particular application of the war power, then, and where the letter of the Constitution does not resolve the issue, the principles of the Constitution seem to invite us to ask: Is this exercise of war power legislative or executive in character? For example, if the president were to use American troops in such a way as to initiate hostilities against another country, under the law of nations he would be changing the legal status of the U.S. in its relations with that country from peace to war, which is a legislative power that he does not possess. But as James Madison said at the Philadelphia Convention, if the president were to use troops to "repel a sudden attack," he would be using a power that requires "decision" and "dispatch," which could only be done by an executive.  We could use this same standard to judge many other exercises of the war power by the president and Congress.  

This standard might have helped Congress and the general public, for example, give more serious constitutional consideration to the President's actions in Libya some time back. Most of the criticism focused on whether the military intervention was wise, not on whether the President had the constitutional power to intervene without authorization from Congress. However delicate or difficult such questions may be, our most basic civic responsibility seems to oblige us to address them.

Contrast our relative silence with the constitutional seriousness of President James Madison's appeal to Congress and the American people concerning war with Britain in 1812. Madison did not decide the issue himself; he knew that he did not have the power. More importantly, he knew that the people and their representatives needed to have open constitutional deliberation on such a momentous question. Self-government required it. Here are his words:

Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events… is a solemn question which the Constitution wisely confides to the legislative department of the Government. In recommending it to their early deliberations I am happy in the assurance that the decision will be worthy the enlightened and patriotic councils of a virtuous, a free, and a powerful nation.

In our efforts to revive constitutional self-government in America, we – Congress and the American people – certainly must focus, as have many of these letters, on the proper foundation and extent of the federal government's powers in domestic affairs. But we must also strive to be "enlightened and patriotic councils" in constitutional questions of war and peace – none are more fundamental to our freedom.

Ohio Farmer

 

Our Promissory Note

To My Fellow Citizens:

Next Monday will mark the birthday of Martin Luther King, Jr. With the opening of his monument on the National Mall, Americans now have a day and a place to honor King's public life and legacy.

We can benefit ourselves on this occasion by taking a moment from our busy lives to call to mind King's most famous address, the 1963 "I Have a Dream" speech, delivered on the steps of the Lincoln Memorial. It has many memorable thoughts and phrases, but all of them are framed within the context of the opening lines, which declare:

we have come to our nation's capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

King's anchoring of his speech in the principles of the Declaration of Independence would make perfect sense to the Declaration's author. In the last significant letter Thomas Jefferson wrote less than two weeks before his death on July 4, 1826, he talked about the Declaration and his hope for America. Jefferson had been invited to come to Washington, D.C., for a 50^th anniversary reunion with the last remaining signers of the Declaration. He had to decline because of his poor health, but the invitation gave him one last chance to explain the significance of the Declaration: 

May it be to the world [he wrote] what I believe it will be, (to some parts sooner, to others later, but finally to all), the Signal of arousing men to… assume the blessings and security of self government…. All eyes are opened, or opening to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born, with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god. These are grounds of hope for others. For ourselves, let the annual return of this day forever refresh our recollections of these rights, and an undiminished devotion to them....

For Jefferson, the principles of the Declaration were not just the historical foundation of our break from Great Britain. They were the moral foundation for our future, which was to be the story of the unfolding and deepening of the Declaration’s principles in American society and politics. America, Jefferson hoped, would become more and more "Declarational" over time.

But that would only be possible if we continued to re-learn the "self-evident" truths on which our country is built. Those truths need to be learned and re-learned by every generation, precisely because they are "self-evident." This familiar phrase does not, as we are usually inclined to think, mean "obvious."  It does not mean "innate":  you don't just know a self-evident truth by being alive. If we did, how could we explain the fact that no society in history had been fully based on those truths until 1776?

"Self-evident" means something that contains the proof of its truth within itself. It is something that is obvious once you have been enlightened to it. For example, the familiar Pythagorean theorem in geometry ("a" squared + "b" squared = "c" squared) is a self-evident truth: you understand it once you've studied it in geometry class. Before then, it is incomprehensible. After that, it is clear and easy. 

The truths of the Declaration are like that. Our Founders were enlightened to them by experience and the study of great thinkers, and we have been enlightened to them by learning and re-learning them in each succeeding generation. That is both hopeful and fearful. It is hopeful because it means that anyone can in principle learn these truths; they are not limited to a particular time, place, or culture. They can be discovered and implemented by anyone at any time and in any place. It is fearful because every generation must be enlightened to them or they will be forgotten even by those who once knew them.

Abraham Lincoln understood these facts. Inside the Memorial in front of which King spoke are the famous words of the Gettysburg Address. In that address, Lincoln began by invoking 1776, when "our fathers brought forth, upon this continent, a new nation, conceived in liberty and dedicated to the proposition that 'all men are created equal.'"  Lincoln called equality a "proposition," rather than a "self-evident" truth because in the years before and during the Civil War, many people had forgotten or denied the principle of equality; some even called it a "self-evident lie."  For Lincoln, the great purpose of the Gettysburg Address and of the Civil War itself was to restore in the public understanding the self-evidence of those truths—to restore the promise of freedom for all. That is what he meant when he called for a "new birth of freedom": freedom was born in the Founding and had to be re-born during and after the war.

One hundred years after Lincoln's efforts, Americans still faced the challenge of restoring the American promise of freedom. As King said, he had come to redeem the "promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness." Like Jefferson and Lincoln before him, King called us to remember and re-learn the meaning of our Founding principles. This is something each generation needs to do, if we are to preserve and perpetuate the great American promise of freedom to all. So this coming Monday, let's honor the American life and legacy of Martin Luther King by using the day to "refresh our recollections" of these principles and restore our "undiminished devotion to them."  

Ohio Farmer

 

Prosperity and Freedom

To the Members of the 112^th Congress:

In the past few years, America's best minds have said about everything they could conceivably think of saying about the state of the economy.  But they don't seem to have achieved a meeting of the minds, and the economy still has a mind of its own, so maybe a few words can still profitably be said on the subject—in particular, about the relation of the economy to America's national security. What is the relation of our prosperity to our freedom?

In a speech he gave at West Point a couple of springs ago, the President said, "[A]t no time in human history has a nation of diminished economic vitality maintained its military and political primacy." There is an immediate surface plausibility in the President's words. It is clear, we say to ourselves, that economic prosperity is essential to the military strength that secures our freedom as a country. Whatever enhances America's commercial, financial, and industrial power increases its military potential.  

And the converse seems true, as well. We are pleased to hear the President's eagerness to maintain America's "political primacy," and to hear the realism with which he recognizes that this will depend on our military primacy. Military strength, we say to ourselves, is as essential to economic prosperity as it is to political primacy.  There can be no production without security; prosperity is the gift of freedom. Ninety-five percent of America's foreign trade, for example, comes and goes across the seas. We depend on the United States Navy to ensure the freedom of the seas that enables our maritime commerce and reciprocal trade to flourish. Because of this, the fact that we now have the smallest navy America has deployed in almost a century is a matter of concern, as is the President's apparent determination—shared with leaders in both parties—to continue to reduce American military power in general.

Many reasons are given for this bipartisan determination to reduce military expenditures. One of them has particularly to do with our theme of economics and military power. It is that America's security commitments have outstripped available economic resources—a mismatch between capabilities and commitments we understand some of the experts call "imperial overstretch." Some even suggest that this is what ails the American economy: that its fiscal problems arise from excessive spending on defense. Nonsense—if you will forgive our candor.

Cutting the entire budget for the Department of Defense would have little impact on the budget deficit and ultimately the national debt. We currently spend about 4.6 percent of America's Gross Domestic Product (GDP) on defense. Operational war costs are less than one percent of GDP. By 1945, at the end of World War II, America was spending almost 40 percent of GDP on defense. In peacetime over the past 60 years Americans spent on average 5.7 percent of GDP on defense. On the other side of the ledger, for all our economic woes, in 2007, America's GDP was $14.061 trillion; in 2010 it had increased to $14.870 trillion (not adjusted for inflation).

To give you some perspective on economic woes, in 1929, GDP was $103 billion; in 1933, it was $55 billion—a decline of 46 percent. The country's economy continued in the doldrums throughout the '30s, averaging a GDP of $77.5 billion, which is why the plausibility of the President's West Point remarks remains on the surface only. A nation whose "economic vitality" had been "diminished" more profoundly than at any time in its history immediately went on to fight and win the greatest war in history, preparing the way for the longest, most widely spread era of prosperity the country or the world has ever known. So there are some mysteries in the relationship between prosperity and freedom.

There is another way in which such reasoning is nonsense. The national debt that we are used to talking about is incommensurate with another much more important national debt. This is a debt by which we are ennobled and which we can never adequately repay. It is the debt each of us, enjoying the blessings of freedom each day, owes to those whose names we do not even know, who, from Valley Forge, to the beaches of Normandy, to the streets of Baghdad, offered and gave—and continue to offer and to give—the last full measure of devotion so that we can enjoy these blessings.

We can see how these two different national debts are incommensurate when we reflect that what we spend on national defense is in some ways entirely independent of economic considerations. The cost of providing for a successful defense of the country, no matter how high, will always pale in comparison with the loss of freedom, and all that comes with it, that is the cost of defeat. By the end of WWII, Americans were spending 86 percent of the federal budget on defense—perfectly sensibly.

Of course, we quite reasonably have never wanted to throw money at the military. But today, and in the days to come, we hope our elected representatives will not hesitate to say in public that Americans will be ashamed not to spend every cent necessary to equip their soldiers with ample—and even redundant—means to achieve victory with the least possible loss. If these expenditures should ever require us to be more self reliant at home and less dependent on this or that government assistance, remind us in cheerful tones that we should be grateful.  We should be grateful for the benefit to our characters and proud to share in our small way in the sacrifices of prosperity that may sometimes be necessary to preserve our freedom. And, who knows? In the mystery of human events, those very sacrifices, reminding us as they do that we are free people able to stand on our own two feet as Americans always have, may be one of the most important conditions for increasing both our prosperity and our freedom, down the road.

Ohio Farmer

Promises and Politics

To the Members of the 112^th Congress:

"The Pledge," in most political news stories today, refers to the Taxpayer Protection Pledge, promoted and monitored by Americans for Tax Reform (ATR). This group, headed for the entirety of its 26-year existence by Grover Norquist, invites candidates around the country—for the U.S. House and Senate, governorships, and the state legislatures—to promise to oppose any and all tax increases by signing the Taxpayer Protection Pledge. Only six Republicans in the House of Representatives and seven GOP senators have not signed it, compared to exactly three of the 246 elected Democrats on Capitol Hill who have. When ATR believes that a pledge-signer has supported a tax increase, or is about to, it is not bashful about reminding the politician and his electors about the broken promise.

When the "super committee" of six Democratic and six Republican members of Congress recently failed to reach a "grand bargain" on reducing the federal government's borrowing, many Democrats blamed the Taxpayer Protection Pledge. Without it, the argument went, those Republicans who were willing to raise taxes if it meant cutting spending could have worked out a deal with those Democrats who were willing to cut spending in order to raise taxes. Because no Republicans chose to violate the Taxpayer Protection Pledge all such deals became impossible. As Senator John Kerry (D - Mass.), one of the super committee members, complained, "Grover Norquist has been the 13th member of this committee without being there. I can't tell you how many times we hear about 'the pledge, the pledge.' Well all of us took a pledge to uphold the Constitution and to full and faithfully and well-execute our duties and I think that requires us to try and reach an agreement. So we have to compromise."

One critic of the Pledge attacked it by invoking Edmund Burke, the 18th-century British statesman and modern American conservative hero. His famous speech in 1774 laid out the nature and the limits of an elected politician’s obligations to those who elect him. "It is his duty to sacrifice his repose, his pleasure, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own," Burke argued. "But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living…. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion."

Therefore, according to Burke, it was pernicious for voters to issue "authoritative instructions"and "mandates" to their elected officials, in the expectation that the politicians would be "bound blindly and implicitly to obey, to vote and to argue for, though contrary to the clearest conviction of his judgment and conscience." The dots aren't hard to connect: Any Republican politician who takes and honors the Taxpayer Protection Pledge is blindly obeying voters' instructions rather than following his own judgment and conscience.

To use Edmund Burke against Grover Norquist in this way is an example of an argument that, as they say in the law schools, proves too much. It is certainly true that the idea of "representative"government should not be understood in a fanatically literal way. We don't "present" our opinions to our elected officials, and then insist they do no more than "re-present" them in the halls of government.

It doesn't follow from that premise, however, that correctly calibrating governors' democratic accountability to the governed means that citizens have no questions to ask of political candidates beyond whether they have good heads and hearts. It would be one thing if the Taxpayer Protection Pledge were a category unto itself, the only promise American politicians made to the voters. But, of course, lots of politicians make lots of promises about what they'll enact and oppose, perpetuate and eliminate. As a presidential candidate, for example, Barack Obama promised frequently and forcefully to close the Guantanamo Bay Detention Facility by the end of his first year in the White House. Arguments over that promise extend to whether such a closing would be advisable or dangerous, and whether President Obama should have done more to fulfill it. No one, however, took the position that a presidential candidate had no business telling the voters his intentions about an important policy question, and should have confined himself to saying that he would consider the future of Guantanamo carefully but owed it to the voters not to tip his hand.

We do nothing to gainsay Edmund Burke's greatness by noting that his political career unfolded when aristocracy was only beginning to yield to the advance of democracy. It is not surprising that he viewed democratic accountability in the context of aristocratic premises. The best should rule, as before, but with the new twist that the rulers were periodically answerable to the people rather than allowed to perpetuate their power on the basis of ancient traditions or unfalsifiable justifications like "divine right." During that era when the new claims of democracy were being slowly, reluctantly conceded, many believed that for rulers to descend to making specific promises they were expected to keep, or for voters to make equally specific demands, would have been vulgar and the beginning of a descent into mob rule.

The assumptions of that age are not the assumptions of this one. America has now had 183 years of vigorous, unapologetic democratic politics since Andrew Jackson's successful presidential campaign of 1828. The politicians who ask to govern us by our consent, expressed through our votes, can no longer expect to close the sale by offering their eminence and good judgment, with the policy details to be filled in after the votes are counted. Voters aren't shy about demanding specifics from politicians; the prospective office-seekers who considered such questions an affront have all gone into other lines of work. No candidate is obligated to take the Taxpayer Protection Pledge, as no voter is obligated to consider whether a candidate has signed, spurned, or even broken it. Given those undiminished possibilities for free democratic expression, there is no reason why one promise on one issue should be singled out as a threat to popular government… unless all promises on all issues are.

Ohio Farmer

The Shades at Osawatomie

To My Fellow Citizens:

On August 31, 1910, Theodore Roosevelt gave a revolutionary speech at Osawatomie, Kansas, and a couple of weeks ago President Barack Obama visited Osawatomie and wrapped himself in the mantle of Roosevelt's revolutionary progressivism. Thomas Jefferson saw it coming. 

Jefferson did not predict that Roosevelt would make a speech at Osawatomie. He merely predicted the subject of Roosevelt's speech. Jefferson feared that at some point social and economic change would call into question the character of the American republic, portending a revolution that would change it fundamentally. He feared this because he talked to a French peasant woman. 

Jefferson was then Ambassador to the Court of Louis XVI. Representing a poor government, Jefferson was not able to afford the display thought necessary for the French Court’s most elaborate ceremonies. So, one day, instead of attending such a ceremony, Jefferson took a walk in the countryside near Versailles. He happened upon an old peasant woman. Falling into conversation with her, he listened as she spoke of her difficulties. As Jefferson later wrote to a friend, he learned that she had no land and was not allowed onto the vast lands held by the nobility who used them only for sport, riding at their pleasure and hunting wild game. She was entirely dependent on the hand-outs and odd jobs the aristocrats deigned to give her. Her children, she told Jefferson, often went to bed hungry. 

Jefferson was appalled by the destitution of the woman. He told his friend that the critical difference between France—indeed the rest of the world—and America was that in America land was available to all who wished to work it. The land gave opportunity—equality and liberty—to all and secured to Americans the blessings of republican government. And so it would be, Jefferson wrote, until the land was used up. 

As it turned out, industrialization, not population growth, used up the land, so to speak. As America industrialized, people left their farms. As they did so, the wealth generated by industrialization spread to all but unequally. Individuals and corporations amassed great sums. Theodore Roosevelt and people like him, who called themselves Progressives, believed that the old limited national government championed by Jefferson was no longer adequate to these new circumstances. At Osawatomie, as the shade of Jefferson hovered over him, Roosevelt announced the New Nationalism. 

By the New Nationalism, Roosevelt meant a powerful president acting in the name and on the behalf of the people who would control the "special interests" (Roosevelt's term) to ensure equality of opportunity. At Osawatomie, in the spirit of Jefferson, Roosevelt spoke of "the triumph of a real democracy, . . . of an economic system under which each man shall be guaranteed the opportunity to show the best that there is in him." Roosevelt understood, as Jefferson did, that opportunity so understood satisfied the age-old longing for justice and at the same time encouraged our virtue—the best there is in us.

The revolution in our government foreseen by Jefferson and announced by Roosevelt did not concern its goal—equality of opportunity—but the means to achieve that goal. Jefferson as much as Roosevelt thought government should prevent monopolies. But beyond this Jefferson believed that liberty itself was equality of opportunity and limiting the power of government would maximize liberty. Roosevelt believed that the great wealth and power of individuals and corporations required a powerful central government to ensure equality of opportunity for everyone else. 

But the progressive revolution did not stop with the means our government used. Over time, gradually but inevitably, it sought to change its goal. How do we know that there is equality of opportunity? Is it enough to pass laws and impose regulations? If we do so, and inequalities persist or reappear, then perhaps government must do more. It must not simply ensure an equal playing field but a more equal score at the end of the game. 

This is the view President Obama expressed in his speech at Osawatomie. With the shades of Jefferson and Roosevelt hovering over him, he said that the fundamental issue was that inequality of outcome meant there could be no equality of opportunity.  "Gaping inequality," he announced, "gives lie to the promise that's at the very heart of America: that this is a place where you can make it if you try." 

Like Jefferson and Roosevelt, Obama sees equality of opportunity ("you can make it if you try") as the heart of America. Unlike his predecessors, however, he believes that inequality of outcome or wealth denies equality of opportunity. If it does, then to save the heart of America, the government must work to prevent inequality of outcome.

Let us note immediately that the President made no argument to prove that inequality in wealth, "gaping" or otherwise, reduces opportunity. He merely asserted what has become a Progressive dogma, one that revolutionizes the goal of our government as much as Roosevelt revolutionized the means.

What are we to make of these revolutions? Let us acknowledge that governmental action was and is necessary to ensure that none has unfair advantage. All agree on this. But let us also acknowledge the contradiction at the core of Roosevelt's revolution: restricting liberty cannot create opportunity. The power of government, therefore, should be as limited as possible, so the heart of America, opportunity for all, beats as strongly as possible. Let us acknowledge, finally, that a government that works to equalize outcomes, the hope of Obama's revolution, will need to exercise such power that it will imperil opportunity and thus both justice and virtue even more than Roosevelt's revolution did. This above all was the revolution Jefferson feared as he walked with the peasant woman and looked to the future.

Ohio Farmer

 

Equality and Opportunity

To My French Friend:

Yes, Jean-Luc, I did read the President's recent speech.  And I did notice that he referred to the same statistics from the Congressional Budget Office that I did in my last letter to you.  But did you notice the sleight of hand?  The President said that "over the last few decades, the average income of the top 1 percent has gone up by more than 250 percent," as the report indeed notes.  But then the President said "over the last decade, the incomes of most Americans have actually fallen by about 6 percent."  In other words, the President used two different standards to compare income (income over several decades and income over one decade) and presented them as if they were the same.  

As I noted in my letter to you, what the budget office found was that over the last few decades, the income of the poorest Americans increased by 18 percent and American households experienced an average increase of 62 percent in their wealth.   As for the time period that the President refers to, a Federal Reserve study found that the poorest Americans actually lost less in the recent recession than did the wealthiest and that income in the United States has actually become more equal over the past few years.  This should not surprise us.  If you owned a house, you lost a lot when the housing market collapsed.   If you didn't own a home, you lost much less. 

I will leave it to more subtle continental minds like yours to figure out how such manipulation can be a basis for bringing us together, a major theme of the President's speech, or how condemning morally those who disagree with you, as the President also did, contributes to that end.  For my part, I would rather consider a point that the President and I agree on, the importance of opportunity.   This consideration allows me as well to address your concern that what once made America great may be slipping away.

I did indeed consult the World Bank report you mentioned.  And it does indeed show that in the last four years we have fallen among countries in the ranking of ease of starting a business from third to thirteenth.  I was also surprised to confirm, as you noted, that the report shows that the tax burden on businesses in the United States, while lower than it is in France, is higher than it is in the United Kingdom, Uruguay, and even Romania, among other countries. 

This is important because, as the report points out, as taxes go up, the number of new businesses go down because it becomes too costly to start a business.  Not only does that make it hard for entrepreneurs (a fine French word!) like you to start businesses; it makes it harder for those out of work to find jobs, because no one is creating them.  

But there is more at stake than just new businesses and jobs, as important as those are.  What we are talking about—opportunity—is at the heart of our republican governments and way of life.  What good does it do to declare all created equal, if all do not have the opportunity to earn their daily bread and improve themselves through their own effort?  Without opportunity, our principles would have no practical effect. 

The President is right, therefore, to say that creating opportunity is critical to the success of our republican experiment.  How then do we create opportunity? 

The President wants to tax and then have the government spend on education, infrastructure, and research.  He wants more laws and regulations to prevent those he calls greedy from taking advantage of the rest of us.  Such increases in the power of government will create opportunities, he insists in his speech.  All of this is necessary, he tells us, because the old way does not work.  His proof, it seems, is his claim that while a few got richer, most got poorer. 

But as we have seen, he can make this claim only because he manipulated the statistics.  In fact, without the new taxing and laws and regulations that the President wants, American households got richer over the last few decades—on average 62 percent richer.  Moreover, the American economy that produced this wealth was not built on the Federal government’s spending on education, infrastructure, and research.  The Federal government historically has had little to do with education, and most infrastructure and research has been funded by the private sector. 

Through your frustrated efforts to start a business in a country with higher taxes and more regulations than America (and more unemployment!), I am sure, my friend, that you appreciate what will be the result of the President's plans.  We are already starting to see their bad effects.  The increased regulation already imposed on the financial industry has contributed to less financial support for new companies, the companies that create the most jobs. 

Why does the President not see this?  I cannot say for sure.  But he does seem more interested in making sure that no one has too much than in making sure that everyone has a chance to get more.  This means the President wants to limit opportunity to create more equality of outcome.  In doing so, he will only make more poverty for all. And by limiting opportunity, he will enfeeble our republican way of life. 

If I lack the skills of entrepreneurs like you, Jean-Luc, I share their hope and optimism, believing that my fellow citizens will not go where their President is trying to lead them.

Ohio Farmer

Caesars or Presidents

To My Fellow Citizens:

We have noted in these letters that the modern presidential campaign has become a long, long job interview, which favors applicants who are good at running for president but not necessarily those who are good at being president.  A vetting process that favors those who are good at electoral politics over those who are merely good at governance is obviously detrimental to America’s republican experiment. Serious as that problem is, it seems to me that the danger to constitutional government from modern presidential politics goes even deeper. 

We are about to observe the 100th anniversary of the presidential campaign of 1912.  That campaign stands as a key dividing line in American political history. Former president Theodore Roosevelt's electrifying campaign in 1912 as the nominee of the Progressive Party signaled the dawn of a new political era—the one we still live in. To get an idea how momentous was the change wrought in the 1912 campaign, it suffices to reflect that, in decisive respects, that campaign had a lot more in common with the 2008 presidential election than it did with the election of 1908. 

The core difference is that before 1912, presidential campaigns were conducted more by political parties than by individual candidates appealing directly to voters, and following a successful campaign, the president governed more as head of a party, as well. Teddy Roosevelt lost the 1912 election, and the Progressive Party never again really mattered, but its spirit—its Caesarian impatience with the mediating institutions of political parties and constitutional checks and balances—came to define the political framework America lives in to this day.

It is not simply, then, that we have different kinds of candidates than we did before 1912, but that they are running for a different kind of presidency.  TR urged Americans in 1912 to regard the president as "the steward of the public welfare."  This Caesarian conception of the presidency will not hesitate for a moment to ride roughshod over the impediments of constitutional government limited to securing the natural rights of the governed.

President William Howard Taft finished third behind TR and the 1912 Democratic nominee, Governor Woodrow Wilson of New Jersey.  Taft, as a result, has the unfortunate distinction of being the only American president to run for reelection and not receive even the silver medal for coming in second.  (He has the happier distinction of being the only president also to serve as the U.S. Supreme Court's Chief Justice, thereby heading two of the three constitutional branches in the course of a public career.)  Taft's defeat was not just a personal rebuke but a setback for the cause of preserving, as he put it, "all the checks and balances of a well-adjusted democratic, constitutional, representative government."  One hundred years later, the Tea Party's exertions argue that this cause is not defunct, while the Tea Party's grave challenges argue that the restoration of a constitutional order that has been ceding ground for a century will be, at best, an arduous endeavor.

It would be helpful, in that work, to have presidents who secured and held office with the circumspection that comes with being a guardian of the constitutional order, rather than the imperiousness that suits the "steward of the public welfare."  One of the consequences of 1912, however, is that the former kind of politician is less likely today to seek and win the presidency, and the latter is more so. 

As late as 1952, Dwight Eisenhower could "announce" his candidacy for the Republican presidential nomination with a single sentence in a letter that was made public while he was serving as NATO commander in Paris.  After stipulating that "under no circumstances" would he seek a political nomination, Ike wrote, "Of course, there is no question of the right of American citizens to organize in pursuit of their common convictions."  That opaque truism was all it took to send the signal: Eisenhower would run for president if the Republicans drafted him as their nominee.  The next year he took the oath of office.

It is impossible to imagine any presidential aspirant today even feigning such reticence.  It is quite telling that while politicians in the 19th century were said to "stand" for public office, the accurate formulation favored since early in the 20th century is that they "run" for office.  Every four years they run farther and faster. 

The rules of the game now require those who seek the presidency to: raise tens of millions of dollars in increments limited by law; spend the better part of two years giving speeches, shaking hands, and participating in debates and town hall meetings; and subject every detail of their personal and financial lives to inhuman scrutiny.  Little wonder that such a process attracts campaigners with Caesarian ambitions and the "arts of popularity" more than "characters preeminent for ability and virtue," as the Founders had hoped.

If we are not happy with that political process and its results – and we shouldn't be – we need to change them.  It won't be easy or quick, but it will be worth the effort—to ensure that the White House is not occupied by a Caesar but by a President who understands that he is filling a constitutional office that works within and respects "all the checks and balances of a well-adjusted democratic, constitutional, representative government."

Ohio Farmer

One People

To My Fellow Citizens:

Many advanced democratic countries have a big problem: stagnant or declining populations. Birth rates have dropped and the average age of citizens has risen. Unless something is done, the economic and financial strains on society could be disastrous.

One possible solution is immigration. But countries in Europe and Asia have struggled with the idea of immigration because they are not sure that they can take people from other parts of the world and still remain, for example, Danish or Japanese.

Is America any different? In the days after the 9-11 terrorist attacks, a television commercial aired that made a simple but profound point. One by one, people came onto the screen: they looked different, dressed differently, had different jobs, and were from different places around the country. But each one looked straight into the camera and said the same thing: "I am an American."

They were reminding us that we Americans are "one People," as the Declaration of Independence says in its opening line. It was a bold statement to make in 1776 considering that the Americans were divided into 13 often fractious and disunited colonies. What made Americans "one People"?

In the past, countries were united by a common tribe, race, or geography, or by being subservient to a common emperor. As emperors and kings faded away in modern times, so did empires and kingdoms. But people in newly democratic countries in Europe and Asia still tended to be tied together by common race, religion, or blood, or by the geographical lines drawn by former conquerors.

Was that true of America? In Federalist 2, John Jay says:

Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.

Jay was right: in our Founding era, Americans often shared similar ancestry, language, religion, type of government, and customs. We were certainly brought together by a common struggle in the Revolutionary War. Those things did help to unite us.

Yet it is also true that even among people who seemed so similar, Americans were very different from one another. They were made up of many different nationalities, denominations, and backgrounds. Underneath our commonalities and our differences, what made us the Declaration's "one People"?

As I recalled in a previous letter, Thomas Jefferson once described the Declaration of Independence as an "expression of the American mind." He didn't say the American "heart" or even the American "character"—but the American mind. That’s important. Our heart feels emotion; character is made up of habits and dispositions. But the mind holds our ideas and principles—the ideas and principles that shape our characters and govern our emotions and lead us to choose to live as we do. That is what unites Americans at the deepest level, binds us together as "one People," and makes us the distinctive people we are.

Americans do certainly have important emotions and habits in common. We are famous for loving our country, for example, in a way that strikes some other people as too exuberant. And we are known to be habitually optimistic: for an American, the glass is almost always half full. But those sentiments and attitudes are the products of the ruling principles that united us in 1776 and still do today. We love our country because it stands for freedom. We are optimistic because freedom makes us think that we can do anything we set our minds to.

This matters. It means that the newest immigrant can be just as American as someone whose ancestors came over on the Mayflower. In fact, new arrivals can be more American because it is sometimes easier for them to understand that American patriotism is not inherited; it cannot be passed down like property from generation to generation. It is born from an understanding of the country's principles and from conforming one's civic life to them. No one is more American just because his family has been living here for many generations; anyone—regardless of where he comes from or when; regardless of his race or religion or experience—can be an American if he embraces America's ruling principles.

That's why America has always been a place open to immigrants. A person doesn't have to "look" American to come here. He just needs to embrace the political consequences of the truths,

that all men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the pursuit of Happiness; that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

But he does need to embrace those truths. He has to want to be an American, not just someone who lives or works here.  Immigration has historically been a gift to America because it has always led to integration—to the newcomers becoming part of the "melting pot." Not that all our colorful differences in ancestry, religion, or customs melt away, but that we melt together morally and politically on the basis of the common principles that we all share as human beings, regardless of our race, religion, or background.

For good reason, immigration will continue to be a big issue in our national conversation. As we discuss it, let's remember the principles that should guide our thinking. Immigrants don't just bring new bodies, talents, and energy to the country. They can give us the opportunity to re-invigorate our American mind by reminding us all of the principles that make America what it is. They do this when they assume their American responsibility and become self-governing human beings who choose to live together according to the principles of liberty, equality, and the rule of law.

This is how our country renews itself in body and soul: by immigration and integration. It's how we become ever more the "one People" envisioned by our Founders.

Ohio Farmer

Rule by Experts

To the Members of the 112^th Congress:

Progressives originally wanted more democracy; now they’d like less of it, if you don't mind.

We have had occasion in these letters to mention President Obama's former director of the Office of Management and Budget, Peter Orszag. Orszag left the administration last year for the more lucrative position of Citigroup's vice chairman of global banking.

During moments of leisure from tightening the shackles forged by international capitalism, Orszag enjoys writing articles in his capacity as an adjunct senior fellow of the Council on Foreign Relations. We know of nothing that will oblige our grandchildren to remember Mr. Orszag, but we call him to your attention because in a recent article he has had the candor to express openly a significant and troubling inclination of American progressives.

In his words, the time has come "to counter the gridlock of our political institutions by making them a bit less democratic."  The problem is not that our politicians are ignoring the views of the people who elect them, but that they reflect those views all too reliably.  More and more Americans inhabit political cocoons, he writes.  They get their news and opinions exclusively from congenial sources – Democrats watch MSNBC and Republicans watch Fox – and even reside in towns and counties that are vividly red or blue, rather than in the purple jurisdictions more common a generation ago. 

The upshot is that elected representatives get to Congress and have no latitude to compromise, since their constituents demand absolute adherence to a rigid political ideology.  The polarization and gridlock that result could be surmounted if the electorate broke decisively in one direction or the other, electing a president and congressional majorities committed to a common agenda and viewpoint.  Democrats like Orszag wanted to believe that this was what happened in 2006 and 2008, but the 2010 midterm elections demonstrated that America remains, politically, a nation closely divided, one where neither party gets the upper hand in a decisive way for a prolonged period.

Believing that polarization is here to stay, Orszag wants to find a way for government to work despite it.  Getting government to "work," however, sounds remarkably similar to getting it to enact the unimplemented parts of the Obama agenda.  He cites the need for a climate change policy, and asserts that "virtually all responsible economists" agree with him that we need a bigger federal deficit for the next two years in order to stimulate the economy and lay the groundwork for policies that will reduce the deficit in conveniently distant decades. 

Orszag is not the only Democrat disaffected from democracy.  Governor Beverly Perdue of North Carolina recently suggested suspending congressional elections for two years as a way for voters to convey to congressmen that whatever decisions they make to effect economic recovery are ones "we won't hold … against them."  The governor's spokeswoman hastened to insist that her boss was "obviously using hyperbole" to draw attention to the "serious problem" of "politicians who focus on their own election instead of what's best for the people they serve."

Well, it's good to be reassured that the banana-republic step of suspending the people's ability to hold the legislature to account does not appear to be a Democrat project, but isn't it a bit discouraging to see prominent members of that party holding the incapacity of the people to govern themselves to be a self-evident truth?  To say that politicians face the mutually exclusive option of getting elected or doing what's best for the people means that the people are too ill-informed, short-sighted, or weak-minded to make wise governance an unassailable electoral advantage rather than a handicap.

Orszag is not using hyperbole, and his ideas about making our institutions "a bit" less democratic sound like they would leave them a lot less democratic.  He wants the Independent Payment Advisory Board (IPAB), the central reform mechanism of Obamacare (the Patient Protection and Affordable Care Act), to be the new template for governance generally.  Readers will recall that IPAB is, in Orszag's words, "an independent panel of medical experts" whose recommendations on controlling health care costs become law unless Congress and the president explicitly countermand them.  According to Obamacare, Congress cannot dismantle IPAB, no matter how much the medical experts outrage mere citizens, except in the distant future and by following an elaborate procedure that has no authority in a Constitution that vests "all legislative powers" in the elected national legislature.

IPAB has not even come on line yet and Orszag is already so pleased with it as an improvement on representative democracy that he would like to see new, IPAB-like commissions empowered to set federal policy in such obscure and insignificant areas as infrastructure and taxation.  He allows that government by commission would "reduce the power of elected officials and therefore make our government somewhat less accountable to voters."  But, darn it, since no one else has "come up with a practical proposal" to "circumvent legislative gridlock," Orszag sees no alternative to turning all the important questions facing the government over to panels of experts, and keeping Congress around only to intercede if the commissions come up with measures the people absolutely deplore.

Orszag repudiates a straw man when he urges Americans "to jettison the Civics 101 fairy tale about pure representative democracy" and embrace government by commission.  The logic of our constitutional system recognizes that while popular government can be rash, stubborn, or petty, any political architecture that protects against these tendencies by conferring autonomous power on a small minority purportedly blessed with exceptional wisdom or virtue sets up the temptation and probability of tyranny.  Thus, the Constitution's goal is to secure "a republican remedy for the diseases most incident to republican government," as Federalist 10 contended. 

This Madisonian approach is certainly aware of the need for "experts" in a well governed republic, but it seeks to improve democracy by elevating and refining it.  It creates a government in which all political power derives from and must answer to the people, but where the structure of the government and the national union is designed to give the nation every opportunity to embrace policies that are wise and not merely popular.  Presidential elections, for example, are held every four years rather than every four months, so that a president has the constitutional space to make decisions that contradict the people's momentary preferences, but which might be vindicated in the months or years before the next election is scheduled. 

Orszagian government, by contrast, seeks to improve upon democracy by constraining and circumventing it.   It is based on the belief that the most acute problem with American government is that experts lack the power their expertise deserves.  He advocates a constitutional system where rule by experts is the default option, saving us from having commissions whose recommendations "sit on a shelf collecting dust."

One reason to prefer Madison's solution to the problem of making democracy work over Orszag's is that it displays an astute sense that the abuse of power is an endemic political problem, one so old it's often rendered in Juvenal's Latin: Quis custodiet ipsos custodes?  Who will guard the guardians themselves?  If Orszag gets his way we will be forced to ask, where will we find the experts who know how to protect us from the experts?

Ohio Farmer

A Commercial Republic

To My Fellow Citizens:

The United States was founded as a republic, but there was a spirited debate concerning the kind of republic the new country would be. Thomas Jefferson advocated an agrarian republic based on self reliant yeoman freeholders. He believed that domestic manufactures engendered dependence and corruption, both of which would undermine the virtues necessary to sustain republican government.

Alexander Hamilton, on the other hand, argued for a commercial republic. Only such a system, he thought, could provide the necessary conditions for the security, prosperity, and liberty of American citizens. Over the years, many have argued that the Founders saw commerce as a means of channeling the passions of the people, implying that the American republic is based on the narrow self interest of citizens. But Hamilton's understanding was more elevated.

He saw a commercial republic as creating not only prosperous and free citizens but also virtuous ones. The obligations incurred through commerce and trade would, in Hamilton's view, habituate the citizens of the United States to the virtuous and law-abiding behavior necessary for self-government and provide opportunities for developing the excellence of the human intellect.

In addition, Hamilton believed that commerce would provide the prosperity necessary for American greatness. A commercial republic would not only create the military and naval power necessary to enable a limited republican government to protect the natural rights of its citizens to their lives, liberty, and property, but also offer a hospitable environment for the most high-minded citizens to achieve the honors—even fame—they were capable of deserving for their exertions on behalf of their country. As Hamilton wrote in Federalist 72, "the best security for the fidelity of mankind is to make their interests coincide with their duty."

Hamilton's view prevailed and the United States has risen to become the most prosperous and powerful nation in the history of the world. But recent ongoing economic crises have undermined confidence in the commercial republic that for so long created wealth and power for American citizens. The reason for these economic crises can be traced to the abandonment of the very virtues that Hamilton sought to instill in his fellow citizens.

The virtue necessary to sustain republican government has been replaced with a sense of entitlement and debased dependency. Many Americans have come to accept the Progressive or European social-democratic idea that the purpose of government is not to protect the equal natural rights of individual citizens—the rights invoked by the Declaration of Independence: to life, liberty, and the pursuit of happiness—but instead to adjudicate the distribution of goods and services among competing claimants.

Those who take this position view the United States, not as a community of individuals, but as an array of groups whose demands must be met. But since government produces nothing on its own, certain favored groups prosper at the expense of others. Progressives invoke the language of rights, but what they mean by the term are privileges or claims to resources that are granted by government.

The result has been an explosion of government spending on behalf of client groups that threatens the financial stability not only of the United States but also of a global economy that depends on America's financial stability.  Debt in and of itself is not the problem. As Hamilton proved, debt prudently managed on behalf of a government of limited power, can lubricate the wheels of commerce. But massive government spending to provide limitless entitlements for a dependent class of recipients produces not only economic problems but political and moral ones. The very concept of "entitlements" creates a dependency that is at odds with, indeed undermines, republican virtue.

At the same time, the U.S. government has pursued policies and imposed regulations tailor-made to destroy the spirit of entrepreneurship that fuels a commercial republic.  As a result, the American economy limps along, as businesses curtail hiring workers and avoid productive investment in the face of uncertainty about future economic policy. Like barnacles on a ship, government policies place a drag on the productive spirit of American citizens that is necessary to achieve the benefits of a commercial society.

In order to reap those benefits, it is necessary to reinvigorate that entrepreneurial spirit. This can only be done by reversing the culture of dependence that the demand for government-provided entitlements has engendered, which has separated interest from duty, contrary to Hamilton's admonition. The primary goal of American statesmanship today must be to reunite the interest and duty of citizens, in Hamilton's sense.

Ohio Farmer

Equality and Wealth

To My French Friend:

It was good to talk to you again, Jean-Luc, and to hear that you still have not given up.  You may be right that this is only because your stubbornness exceeds your good sense. But I find it admirable that, against all odds, you keep trying to start a business in France.   

Your perseverance is admirable in itself but even more admirable is the great good you will do, if you succeed.  New businesses create new jobs—all the new jobs between 1980 and 2005, according to one report I read recently—and that is what we need if unemployment rates are to fall in France, as well as the United States. 

It is disheartening to hear about the negative attitudes in France toward someone starting a business on his own.  But I have to admit it is not surprising. I think of France as a country where the state, in the name of the people, has played a large role in the economy and has actually owned, at least in part, many large firms.  This would almost make it a Frenchman’s duty to work for one of those government directed large firms.  A strange duty, it seems to me. 

But what you describe suggests an attitude more troubling still.  It is as if your fellow citizens resent or even find immoral someone breaking free to follow his ideas and ambition.  If that is the prevailing view there, no wonder laws and regulations in France make it so difficult for someone to exercise what James Madison called our "unequal faculties for acquiring property." 

We have had a different attitude in the United States.  We admire Bill Gates or Steve Jobs—college dropouts—who from almost nothing built vast personal fortunes but also wealth for many others, including the thousands employed in companies they created.  

I hope we don't lose our admiration for those who help others like this, but I fear we might.  Perhaps you have heard about the recent finding that over the past couple of decades the income of the very wealthiest Americans grew many times more than the wealth of the poorest Americans.  This report on growing income inequality has caused some comment, as you can imagine, for Americans value equality as do the French.  

Two things have struck me in these comments.  First, none of the comments I have seen noted that the income of the poorest Americans increased by 18 per cent during the period covered by the report.   Even the poorest Americans, then, got wealthier, although their wealth did not increase as fast as did that of the wealthiest.  Indeed, the report shows that American households experienced an average increase of 62 per cent in their wealth.   

Such an increase in wealth should be a cause for congratulation.  But the attitude revealed in some comments about the report has been different and worrying.  It was something like what you have experienced in France.  One columnist wrote that the difference in the increase in wealth between the poorest and wealthiest amounted to the wealthiest stealing from the poorest.  Even a business magazine echoed this attitude when it wrote that the wealthiest made out like bandits.  

How could the difference in income be the result of theft?  The only way this makes sense is if we think that somehow originally, we all had the same wealth and that wealth does not increase.  Thus, if I end up with more, it must be that I stole yours.  This would be one way to understand the equality that Frenchmen and Americans value, but it has not been the way we Americans have traditionally thought about equality. 

If Americans have thought that we all started equally, it was in equal poverty and with an equal chance to escape it.  Thus, we have not resented but admired a Benjamin Franklin arriving in Philadelphia from Boston almost penniless and building a prosperous life for himself and his family, giving work to others in the businesses he created, benefiting the citizens of Philadelphia with his many public projects and his public service—made possible by his wealth—and benefiting all of mankind with his example and his inventions.   Above all, we have admired and honored Lincoln, hard-working and self-taught, struggling to rise from the poverty into which he was born, becoming a successful lawyer and then our greatest president, benefiting his fellow Americans beyond all others. 

I hope that Americans don't lose this understanding of equality and that they continue to admire those that strive.  I hope Frenchmen come to share this view and that they and Americans vote to create the circumstances in which you and people like you can prosper.  And I hope you persevere, my friend, and that you become as great a benefactor to your citizens and all mankind as those I have mentioned.  

Ohio Farmer

Presidents and Presidential Debates

To My Fellow Citizens:

The 2012 presidential election is still more than a year away, and the Republicans seeking their party’s nomination have already held – well, no one's quite sure anymore how many debates they've held.  Governor Rick Perry of Texas was, for a few weeks after he declared his candidacy, ahead in many national opinion surveys and described as the front-runner in news stories.  His performances in the debates since he got into the race, however, have been widely regarded as unimpressive and harmful to his prospects for the nomination. 

Perry himself conceded after one performance, "Debates are not my strong suit."  His forensic troubles remind us that running for president is really, really difficult.  Perry has been elected governor of the country's second-most populous state three times, something that a man who wasn't very good at politics could never have done.  But presidential campaigning has caused other accomplished politicians – Bob Dole and Bob Kerrey, for example – to appear out of their depth.

What’s so strange about the growing importance of debates in presidential campaigns is that debating – even defined loosely as appearing poised, serious, imperturbable, and well-informed in what amounts to a competitive group press-conference – doesn't correspond to anything a president ever does once elected.  An American president does not, like a British prime minister, have to defend his policies to critics in legislative chambers.  Presidents talk a lot in public, of course, but always in highly controlled settings that allow them to confine their remarks to the subjects they want to talk about, and address them in ways of their own choosing.  Saying we elected Smith president because he’s such a good debater, then, is a little like saying that we chose Jones to be our quarterback because he's such a good ice skater.

Presidential debates are a political institution with a history only 50 years long.  In 1960 Vice President Richard Nixon and Senator John Kennedy held four televised debates, the first of which was widely considered decisive.  Kennedy won and Nixon lost for reasons having more to do with stagecraft than statecraft.  Kennedy appeared "confident, disciplined, and calm," according to the political historian Michael Barone, while Nixon "was nervous and ill at ease, slouching and sweating."  Kennedy's dark gray suit contrasted nicely on the nation's black-and-white televisions with the light-colored screens used as a backdrop in the Chicago television studio.  Nixon's lighter suit blended into that background, drawing more attention to his five-o'clock shadow, since he had chosen to apply heavy makeup rather than shave before the start of the debate.  All in all, it sounds like a better procedure for selecting a talk-show host than the nation's chief executive.

There were no debates between the major party nominees again until 1976, but we’ve had at least one such encounter in each of the eight presidential elections since then.  At this point presidential debates have been grafted onto the American political process; it’s very hard to imagine a presidential election ever again taking place without them.  And because debates are important in the general election campaign, they are necessarily important in the nomination process.  If Republicans come to the conclusion that debates really aren’t Rick Perry's strong suit, they will have to think hard about nominating him, knowing that Barack Obama held his own against Hillary Clinton and John McCain in these forums in 2008, and the debates are likely to be important in what could be a close contest in 2012. 

Debates have become so important to modern presidential politics not because they help us understand what a candidate thinks or will do, but because we hope they help us understand who he is.  We wait for the unscripted moments where the politician, unable to rely on speechwriters or consultants, reveals his principles and character.  The problem with this hope is, as the old saying goes, that sincerity is so important because once you learn how to fake it, you can get away with anything.  If debates are supposed to let us see the person behind the politician's mask, they will give an advantage to politicians who are good at fashioning a special mask just for the debates, one that allows them to reveal their constructed "authentic" self.

Regardless of whether or not Governor Perry should be nominated or elected, then, there is something about his situation that makes one fear for our experiment in self-government.  Imagine one of those diagrams with overlapping circles, one circle containing the list of all the Americans who would be good presidential candidates, and the other the list of everyone who would be a good president.  It's dangerous for the health of the republic if those two circles overlap less and less every four years.  The culmination of that trend would be for the "skill set" that makes someone a good presidential candidate to have nothing to do with the qualities that make someone a good president.  It's fair to say that a part of the disappointment with President Obama – even and perhaps especially among people who were enthused about his candidacy in 2008 – is the disquieting thought that running for president turned out to be the one part of being president that this fellow is really good at.  If we've reached the point where the one thing has nothing to do with the other, then America has a bigger problem than a flawed president.  We have a flawed system for picking presidents, one that will only occasionally and by accident leave us with a good one.

Ohio Farmer

One and Many

To the Members of the 112^th Congress:

Many thoughtful citizens think that Washington is broken – that the federal government is not working as it should. It is not working, in part, because it is working too much. It has gone beyond the Constitution and reached too far into what is properly the business of the states.

A couple of weeks ago, I speculated about some possible reforms that might help begin to return the federal government to its proper scope. But no single policy proposal will bring federal-state relations back into balance.  For that we must recover something of our old understanding of the principles that created the balance in the first place.

As James Madison famously wrote in Federalist 39, our government is "neither wholly federal, nor wholly national." It is something new. Before, countries had been either what Madison calls "confederal" or "consolidated" – either loose associations of sovereign states (like the European Union today) or countries held together by a single, central government. America set out, paradoxically, to combine these seemingly irreconcilable principles – to be many, and at the same time to be one.

Despite what a few continue to think, America is not a confederation. The 13 original states were never separate, independent countries with complete authority over their domestic and foreign affairs. Even from the beginning, as Madison says, the Union had certain powers; most importantly, the American people existed as “one people” from the Revolution on, as the Declaration of Independence states.

On the other hand – contrary to what so many elected and appointed officials have for so long supposed – we are also not one big, consolidated mass (something to keep in mind when the Electoral College makes its quadrennial claim on our political attention). The American people are "the Citizens of each State" as Article IV of the Constitution describes them. This means that the states are not simply administrative districts of the federal government that exist to carry out federal programs. They are real, living, distinct political societies. We are always Americans first, but for some purposes we are 50 different peoples with different needs, interests, and ways.  We are citizens of the United States with a direct relation to the federal government, and we are citizens of our own states with a direct relation to our state government.

Following this principle, we the people, through the Constitution, empower the federal government to handle certain tasks like foreign policy, national security, coining money, and regulating commerce. These are areas in which the American people are and must be tied to each other politically through a single, national government. The United States must speak with one voice in foreign affairs, and a vital national economy requires a common currency and commercial regulations.

As the Tenth Amendment makes clear, however, the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states (or to us, the people). Basically, states are supposed to be in charge of everything not handed over to the federal government – things that affect everyday life like criminal law, education, speed limits, and even sewers. These are areas in which the people of the different states really are different societies that have different interests and identities. Fifty-five miles per hour may make more sense in Rhode Island than in Montana. What children need to learn and how they should do it depend a lot on the character and needs of the place where they live.

In the last 30 years, we’ve rediscovered that leaving states to design solutions to their problems is a smart way to make policy. It lets solutions be tailored to particular needs, and other states can see what works and what doesn’t. So Congress stopped trying to bribe the states to force all their citizens to drive 55 mph.

But the federal government continues to overreach, because too few elected and appointed officials have any regard for federalism as a principle in its own right. Federalism is one of America’s great principles of freedom. Vital state governments are an essential part of robust self-government in America. Our Declaration of Independence establishes the basic principles of justice for all government in America, federal and state alike. The Constitution then gives the federal government as much power – and only as much power – as the American people need to govern themselves justly on national issues. It leaves the people in each state to manage their particular affairs through their own governments.

This federalism makes sense in a country that is united morally by our fundamental principles of liberty and equality but is distinguished by a huge variety of passions, interests, needs, and traditions that are associated in many instances with the history and geography of the states. There has always been and will always be disagreement about what falls within the purview of the national government and what falls to the states. But these disagreements will be much more fruitful when we remember that we Americans set out from the beginning to be one and many at the same time.

Ohio Farmer

Constitutionalism and Credit

To My Fellow Citizens:

In my first letter, I spoke of the need for a constitutional conversation.  I called upon citizens as much as our elected representatives to reflect on “the limitations and principles of the Constitution.”  Perhaps the most important requirement for such a conversation is the recognition that the Constitution is itself a limitation on the actions of the people and their government and that such a limitation is good.

The Constitution is a limitation because it establishes the border between legitimate and illegitimate political action.  It specifies what we may or may not do in our political life.  The people are sovereign, the ultimate power in the land, and may amend the Constitution, of course.  But however it may change, its stipulations impose limits on the people and their government.  The federal Constitution does this for the people as a whole and the federal government.  State constitutions impose limits on state governments and the people acting as the sovereign power in each state.   Living within these limits is what we mean by the rule of law.

Why do the sovereign people accept this limitation on their power?  Why should officials in their government accept the limitation?  In the 1830s, as mob violence spread across America, Abraham Lincoln warned his fellow citizens that joining a mob, ignoring the rule of law, even to do an evident good, such as punishing a heinous murderer, posed a grave danger.   Those who had acted beyond the limit of the law or took the law into their own hands one day could just as easily become the victim of such action another day.  Politicians who assumed the power to do whatever they believed was good for the country, whether allowed by the Constitution or not, taught their opponents to act similarly, to do things those who first acted outside the law were bound to find harmful.  Ignoring the Constitution or the rule of law might appear an expedient way to do good but was just as likely to produce harm.

The harm of ignoring the law was not just this or that harmful action, however, for even lawful action might produce harm.  The greater harm was that ignoring the rule of law bred a spirit of lawlessness.  In such a situation, citizen would be less able to trust fellow citizen, since no accepted rules would guide their actions.  Not trusting each other, citizens would look only to themselves.  In due course, their public and then private lives would be impoverished.  They would come to see too late that accepting limitations on their power, living within the rule of law, was the basis of all the goods they enjoyed because it was the basis of the common good.

The conjunction of the good and the limits that make it possible brings me to the current demonstrations over the financial crisis.  Let me say immediately that the demonstrations themselves are not the problem.  Those gathering in public to express their views have a right to do so, and if legally exercised, this action should receive the support even of those who disagree with them.  The problem is in the views the demonstrators express.

The demonstrators claim that we are suffering now because of the greed of the financiers and politicians who run the world financial system.  Undoubtedly, there are greedy financiers and politicians.  But if they were the cause of the financial crisis, the crisis would be constant.  The real cause of the crisis is not, to paraphrase the poet, in our financiers and politicians, but in ourselves.  We, the people, are the sovereign power in the country and, ultimately, financiers and politicians can do only what we let them do.

What we let them do was to let us, as a nation and individuals, live beyond our means, to live beyond the limits of what we could afford.  It is good to own a home, for example, but it is not good to buy one with easy credit, made available by financiers with the encouragement of politicians, that one cannot afford.  Both nations and individuals go bankrupt when they live too long this way. 

But the bankruptcy may not be financial only.  In the early days of our republic, many argued that excessive credit was a bad thing.  They did so precisely because they believed that someone who lived on such credit showed that he would not accept limits, could not impose them on himself and was thus in a sense unable to govern himself.   Self-government requires self-imposed limits, financially and constitutionally.

Financial recovery will come, slowly perhaps but certainly.  Constitutional recovery, more difficult and more needful, is less certain.  Most needful of all—if both recoveries are to endure to the limit possible for human achievement—will be a recovery of our willingness to live within our limits.

Ohio Farmer

Federalism--and Cheese Factories on the Moon

To the Members of the 112^th Congress:

I considered last week how liberalism depends on crisscrossing dollars blackening the skies above the fruited plains—how under liberalism the federal government takes money from Peter to send it across the amber waves of grain to Paul, and all Paul's cousins, aunts, uncles, and nieces, and back again to Peter, and invites them all to believe that in the process the dollars have somehow magically increased in number.

In truth, however, this liberal poker game cannot help being a zero-sum game: the dollars you start with will be the same as the dollars you end with. And when the central government plays the zero-sum game of taking money here and awarding it there, elected legislators from the various states and congressional districts in the country have tremendous incentives to minimize the amount of dollars their states and districts send to Washington, D.C., and maximize the number they receive from there.  In this perverse game, though party affiliations may divide them, American politicians are united in the need to present themselves to their voters as agents who adeptly enrich the Americans who elect them at the expense of all other Americans.  Phil Gramm, a conservative Republican who represented Texas in the U.S. Senate from 1984 to 2002, once said that while he would oppose a federal program to build a cheese factory on the moon, "if the government decided to institute the policy, it would be my objective to see that a Texas contractor builds this celestial cheese plant, that the milk comes from Texas cows, and that the Earth distribution center is located in Texas."

Such jockeying for advantage by senators from 50 states and representatives from 435 districts will tend towards an equilibrium where each state and district sends exactly as much money to the federal government as each receives from it.  At that point, of course, the involvement of the federal government becomes completely pointless – every jurisdiction winds up exactly where it started out.

The fiscal logic of Bill Buckley's suggested welfare reform, which we mused about in last week's letter ("Congress shall appropriate funds for social welfare only for the benefit of those states whose per capita income is below the national average"), is that some states would be net importers of federally reallocated dollars and others would be net exporters.  Poor states would get help and rich states would render it.  Any other alternative allows states more affluent than the nation generally to be net importers if their senators and representatives are especially aggressive or cunning, or if their bureaucrats are especially skilled at reading the fine print of federal appropriations laws. 

A nation where federal welfare programs were limited to states with incomes below the national average would have much smaller welfare programs. Smaller welfare programs would mean lower federal expenditures.  Lower federal expenditures would allow tax cuts that did not increase the federal deficit.  This, in turn, would leave to the wealthier states dollars with which to finance welfare programs they design and administer internally.  The dollars over the skies of New York, California, and other prosperous states would be ones launched from within their borders.

The political logic of Buckley's reform is that it discourages the wrong kind of competition within federalism and encourages the right kind.  The wrong kind is where the public officials in one state compete to come up with ways to use the federal government to help its residents at the expense of Americans living in the other 49 states.  That sort of competition sustains rather than penalizes bad governance.

The right kind of competition aims to provide citizens with choices among 50 different sets of taxes, regulations, and quantities and qualities of government services.  People voting with their feet will signal which approaches they consider most and least attractive.  Since different people want different things, various different arrangements of taxes and regulations, etc., will flourish.  No one, however, will seek to live or do business in states that specialize in combining shoddy, wasteful, ineffective public services with high taxes and burdensome regulations. 

The automotive industry, by the same token, does not seek to offer the car every driver will want, but manufactures different products for those who care most about luxury, performance, design, price, fuel efficiency, or reliability.  What it doesn't do – or didn't until the GM and Chrysler bailouts – is to build ugly, unreliable, overpriced lemons and then rely on the government to rescue enterprises car buyers have rejected.  Clearing the skies, by simplifying and streamlining modern federal-state relations along the lines Buckley recommended, might be one way of  advancing federalism's original and best purpose: to give Americans the kind of government they want, and enlist them in the republican enterprise of securing it.

On the other hand, before creating yet another program that takes money from some states and sends it to others, Congress might consider whether it would be better to leave the money where it is in the first place. Let the people in the states decide for themselves how to use it, as the Founders intended. If you do, you might find yourselves taxing and spending as the Constitution envisions: not for the benefit of one part of the country or another, but for the "General Welfare" of us all.

Ohio Farmer

Federalism--and the Liberal Poker Game

To the Members of the 112^th Congress:

People understand that when six friends call it a night and get up from the poker table, some have won and some have lost but the total number of dollars in all six wallets is exactly the same as when they sat down.  Liberalism needs people to believe that what is true in a living room becomes magically inoperative in a nation—that when over 100 million households, as opposed to half-a-dozen individuals, pass an enormous but still finite number of dollars back and forth, somehow everyone can come out ahead.

In our last letter we considered the constitutional principles of American federalism. In this letter, let us consider an imaginative analysis of the actual working of our federal system, in the hands of the liberalism that has largely determined the relationship between the national government and the states since the New Deal. This is the liberalism that, rubbing its hands together, looks upon the world in confidence that there is a government program for everything—ideally a federal government program (think Fannie Mae and Solyndra, if you like).

Over 50 years ago, the late William F. Buckley, Jr., wrote that the ultimate effect of thousands of government subsidies—to consumers of this and producers of that—was to guarantee that "the skies are black with crisscrossing dollars."  He described this "purposeless pell mell" as the essence of "liberalism on the wing."

The flocks of dollars migrating pell mell in every direction led Buckley to consider possible reforms, the first one of which aimed at improving welfare programs. We do not here advocate this reform, but share with you Mr. Buckley's idea because of the light it sheds on one aspect of American federalism today: "Congress," Mr. Buckley reformingly suggests, "shall appropriate funds for social welfare only for the benefit of those states whose per capita income is below the national average."  This limitation, Buckley reasoned, would significantly reduce "the ongoing incoherence" of the crisscrossing dollars that are blackening the skies above the fruited plains.

One of Buckley's purposes was to curtail welfare by introducing means testing: "You do not construct relief programs for the benefit of a Rockefeller.  By the same token, you should not construct relief programs for the benefit of New York State." The broader ambition, however, was to place two conservative goals in one another's service by reinvigorating federalism while curtailing social welfare programs.  Buckley understood that although the disordered, wasteful, and ungainly blackening of the sky with crisscrossing dollars served no comprehensible governmental purpose, it was vital to liberalism politically.  According to "liberal economic doctrine," he wrote, "the dollar is virtuously deployed as the distance increases between where it is collected and where it is spent."  The successful proselytization of this doctrine will be realized when the public assumes a "dollar that issues out of Washington, D.C. is spontaneously generated."  

In other words, liberalism requires people to believe that when they get up after a night of poker, they all go home with more money in their wallet than when they came.

Buckley's proposed reform was meant to disabuse people of this fantasy.  Suppose the 21,780 residents of Ashland, Ohio (at the time of the 2010 census) have to vote on a $21,780,000 project to equip the local high school with an Olympic-sized pool, an indoor track, a gymnastic center, and racquetball courts.  (A public school in Kansas City, Missouri added these facilities 20 years ago, but only when ordered to do so by a federal judge to settle a school segregation lawsuit.)  If they must absorb a tax increase of $10,000 per person, the project is going to have trouble securing majority support.  If, however, the state of Ohio announces it will fund these improvements to Ashland High, a tax increase of $1.89 on each of the 11,536,504 residents of Ohio will cover the costs.  And if the federal government takes over the project, it can be financed by an imperceptible 7-cent tax increase on each of the 308,745,538 Americans.

If the relation between the city of Ashland and the rest of the United States were the same as that between the city of Rome and the rest of the Roman Empire, this arrangement could work.  But Ashland is happily one of thousands of such localities in a republic.  Any federal program to add palatial features to Ashland's public schools will only win approval if it is part of a reciprocal arrangement:  the 300 million or so Americans who don't live in Ashland will contribute to enhance Ashland's school only if the people of Ashland agree to help pay for enhancing theirs. 

The trouble is that there are a lot of public high schools in America.  By the time the 7 cents is rung up to pay for swanky additions to each one, there's a good chance the people of Ashland are going to wind up right back where they started, paying $10,000 apiece for their upgraded high school.  Instead of paying it directly and simply, however, they'll throw the money into a pot in the center of a national table, and 308 million other Americans will each take a cut.

If you think this is an odd way to build a high school swimming pool, you won't be surprised at the results that follow when the federal government decides to build cheese factories on the moon, a possibility we will contemplate in next week's letter, when we continue this story.

Ohio Farmer

Federalism and the Constitution

To the Members of the 112^th Congress:

Governor Rick Perry, shortly before beginning his quest for the presidency, told one audience,

Our friends in New York passed a statute that said marriage can be between two people of the same sex. And you know what?  That’s New York, and that’s their business, and that’s fine with me.  That is their call. If you believe in the 10th Amendment, stay out of their business.

Discussing abortion with some journalists a few days later, he reiterated, “You either have to believe in the 10th Amendment or you don’t.  You can’t believe in the 10th Amendment for a few issues and then [for] something that doesn’t suit you say, 'We’d rather not have states decide that.'" By the time Perry announced his presidential candidacy he had come to discover theretofore hidden wisdom in the adage that a foolish consistency is the hobgoblin of little minds. After being criticized by groups opposed to same-sex marriage and abortion, he declared himself in favor of amending the Constitution to prohibit the former and restrict the latter.

One need not conclude that Governor Perry had it right the first time to concede that he had a point.  That point is that conservatives can’t credibly offer themselves as the restorers of constitutional federalism at the same time they insist that every policy goal important within their own coalition must be settled on a national basis rather than a federal one.

This question divided two of the most conservative Supreme Court justices in 2005. According to Antonin Scalia, the federal government, in its efforts to enforce federal laws that outlawed the use of marijuana and which recognized no medical exceptions, had a constitutional right to ignore and effectively overrule a state law permitting the medicinal use of that substance.  In some circumstances, he wrote, federal "regulation of an intrastate activity" such as growing marijuana in conformity with a state law for use in reducing the side effects of chemotherapy, "may be essential to a comprehensive regulation of interstate commerce." In this instance, Scalia wrote, "Drugs like marijuana are fungible commodities." As a result, “marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market – and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State."

In disagreeing with Justice Scalia and the Court’s majority, Justice Clarence Thomas took a position much closer to Perry’s initial one. The authorities arrested and prosecuted the plaintiffs in the case (Gonzales v. Raich) for violating a federal law, the Controlled Substance Act, by using homegrown marijuana “that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the Federal Government is no longer one of limited and enumerated powers.”  The power conferred on Congress by the Constitution to "regulate commerce among the several states" must be interpreted and applied, Thomas insisted, based on how those ideas were understood by the Americans who wrote them. Thus,

Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

It’s worth noting that as recently as 1919 Congress and the states believed that the federal government's power to regulate interstate commerce did not necessarily extend to alcoholic beverages, another intoxicating substance used for medicinal and recreational purposes. It was, as a result, thought necessary to amend the Constitution to ban "the manufacture, sale or transportation of intoxicating liquors" in order for Congress to acquire the authority to supersede regulations previously exercised solely by state and local governments. So widely was Prohibition considered a debacle that the nation took the extraordinary step of amending the Constitution again, just 14 years later, to de-nationalize and re-federalize the regulation of alcoholic beverages.

There are reasons, then, to believe that the tensions in Governor Perry’s views on federalism are ones he comes by honestly. It would be very useful to have a rule drawing a bright line between where the states’ proper authority ends and the federal government’s begins.  The 10th Amendment – "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" – is probably not that rule. Court decisions and legal scholars have, for the most part, treated the amendment as a tautology, one stipulating that the federal government must not do that which the federal government must not do.

Even if conservatives can’t find or draw the bright line that makes sense of federalism, however, they do not have to think of federal power on the principle of the Cole Porter song that became popular during the New Deal – "Anything Goes." The New Deal sensibility viewed the involvement of the federal government as the preferred and almost automatic option for addressing any social problem, placing the burden of proof on those who opposed each new expansion of the federal authority to show, specifically, how it exceeded the federal government’s proper sphere. 

Perry, Scalia, and Thomas—though they may disagree in some instances about what it means in practice — all appear to agree with the opposite view, as expressed by James Madison in Federalist 45:

The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.… The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

The challenge, then, is not to come up with a clear, simple rule that fixes the federal-state boundary. It is to reestablish the pre-New Deal presumption that the logic of the Constitution places the high burden of proof on those who advocate, rather than those who oppose, federal government activism.  In the absence of a compelling case that protecting the lives, liberty, and property of the people requires such activism, constitutional conservatives will seek to forge a consensus against it, in courthouses, legislative chambers, coffee shops… and polling booths.

Ohio Farmer

Apples of Gold in Pictures of Silver

To the Members of the 112^th Congress:

The country has quietly acknowledged another Constitution Day. September 17 is much less vivid in the American imagination than its political soul mate, the Fourth of July. On the Fourth, as we familiarly call it, we get jubilation: hot dogs, fireworks! On the Seventeenth—and no one would presume such familiarity as to call it the Seventeenth—if we observe the occasion at all, we get sober reflection (if we are on practically any college campus, federal law actually compels us to observe the day, as if it were punishment for our civic transgressions). But the two dates bring to mind each year events that are joined to one another forever in American history.

Independence Day will always look forward to its consummation on Constitution Day, and Constitution Day will always be rooted in the principles famously proclaimed on Independence Day. The days are as inseparable in their political significance as are the Declaration of Independence and the Constitution, which tower above all other documents in the American story.

When the American Revolutionaries declared independence on July 4, 1776, they proclaimed to the world the American understanding of the principles of lawful government, beginning with the self evident truth that "all men are created equal." To paraphrase Alexander Hamilton, this was one of those primary truths, or first principles, upon which all subsequent American political reasonings must depend. An immediate inference from this primary truth is that the just powers of government are derived, not from the divine right of kings, but from the consent of the governed. And the legitimate purpose of government is not to win glory for the king but to secure the equal natural rights of the governed. Eleven years later, it was in light of those principles, and for their sake, that delegates to the Constitutional Convention on September 17, 1787, signed the Constitution that resulted from their summer-long reasonings and recommended it to the states in hopes of forming "a more perfect Union." Americans had to be a constitutional people already in order to conceive of the Constitution. But such a people was a novelty. As James Madison writes in The Federalist #53,

The important distinction so well understood in America between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed  by any other country.

Some scores of years down the American road, on the eve of his great trial and the greatest crisis of the Union and the Constitution, Abraham Lincoln meditated on the relation between the Union and the Constitution and the Declaration. He had in mind a beautiful passage from Proverbs (25:11)—"a word fitly spoken is like apples of gold in pictures of silver"—as he wrote a private note to himself sometime after his election as president in November, 1860, and before his inauguration in March, 1861. He reflected on the blessings enjoyed by the United States—our "free government" and "great prosperity." "All this," he writes, "is not the result of accident."

It has a philosophical cause. Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of "Liberty to all"—the principle that clears the path for all—gives hope to all—and, by consequence, enterprize, and industry to all.

The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government, and consequent prosperity.…

The assertion of that principle, at that time, was the word, "fitly spoken" which has proved an "apple of gold" to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it.

What a blessing to us, as Lincoln said, that the American Revolutionaries asserted that principle as they did. What a blessing that the generation of the framing and ratification acted as they did to establish a "more perfect Union" to vindicate and secure that principle. In the period of the American Founding, from the Revolution to the establishment of the Constitution, Americans displayed statesmanship unsurpassed in the history of human freedom. Any freedom and prosperity we enjoy today is, as Lincoln understood in his time of constitutional crisis, a legacy of that statesmanship—an inheritance of apples of gold in pictures of silver.

It is a hallmark of this Congress to take the Constitution seriously, and it is a widely perceived constitutional crisis of our own that led to the election of such a Congress. If we want to pass on to our children undiminished the freedom and prosperity we have been so fortunate to inherit, we will have to display constitutional statesmanship worthy of the founders and of Lincoln. We should take heart from their example and from the rich legacy they bequeathed to us, which makes our task much easier than it might be.

Ohio Farmer

Congress and the Constitution

To the Members of the 112^th Congress:

Constitution Day approaches, the day on which we annually commemorate the signing of the Constitution on September 17, 1787, in Independence Hall in Philadelphia.  Americans—constitutional people that we are—should celebrate. After declaring our independence in 1776, the first action that "We the People" took was to give ourselves constitutions in our various states. Then we created our first national constitution, the Articles of Confederation. A few years later we replaced the Articles with the Constitution we still have today. We are not the oldest country in the world, but our written Constitution has endured longer than that of any other people. That fact is worth not only celebrating, but pondering.

This is especially important for members of Congress. As these letters have had occasion to observe, Congress is at the very heart of our experiment in constitutional self-government. In the Constitution, Congress comes first: it is Article I. Congress holds the law-making power without which the president has much less to do and the federal courts nothing at all.

Congress also has the greatest responsibility for interpreting our Constitution. Most people think that it is the job of the Supreme Court to tell us what the Constitution means. It is true, as Alexander Hamilton wrote in The Federalist #78, that "it is the proper and peculiar province of the courts to say what the law is," but many people have misinterpreted this passage. Hamilton does not say, and does not mean, that the Supreme Court is the only part of the federal government with the authority to interpret the Constitution, or that its interpretations are automatically supreme over Congress. He is simply defending the power of the federal courts to interpret the Constitution in order to decide the legal case in front of them, as courts must do. As he says in the essay, he is defending the independence of the federal courts, not their supremacy.

In fact, of all the branches, Congress has the primary authority to interpret the Constitution. Like the president or the Supreme Court, Congress receives its power from the Constitution.  Just as the president has no authority to act against the Constitution, you in Congress have no authority to pass legislation that violates it. So—as the 112^th Congress has distinguished itself by recognizing—every time you consider a bill, the first question you must ask yourself is not: "Do my constituents like it?" or even "Is it a good idea?" but "Is this Constitutional?" That's not a matter of partisan politics; it's a matter of legitimate authority.

In asking the very question, "Is this bill constitutional?" members of Congress are interpreting the Constitution. You can take that duty seriously or unseriously, but you cannot avoid it. In making ordinary law, Congress necessarily makes a judgment on the meaning of the "Supreme Law of the Land." Unlike the other branches, however, Congress is the first place for these judgments. The president does not have to consider the constitutionality of a bill until it reaches his desk; the Supreme Court does not have to think about it unless and until a case reaches its bar. You must weigh it while the legislation is being drafted, while it is being examined in committee, and while it is being debated on the floor.  A bill should never make it out of committee, much less Congress, without the most serious constitutional deliberation.

This is why it is so heartening that the 112^th Congress began by reading the document that enumerates its powers, and why it is so important that bills cite their constitutional source of authority. It means that Congress is taking seriously its duty to interpret our Constitution.

In doing that, you are restoring an old tradition that had almost been forgotten. Since the beginning of the Republic, Congress has been the place for our nation's great constitutional debates. Consider the disputes in the 19^th century over the national bank, or the tariff, or the power of Congress to prohibit slavery in the Western Territories. Or in the 20^th century over regulating industry, establishing Social Security, or passing the War Powers Resolution. At each of these moments, it has been Congress that engaged in the most serious and searching debate on the meaning of the Constitution.

That constitutional deliberation must continue in Congress if we are going to restore the American experiment in self-government. For it is in Congress where the American people most fully govern themselves: where the common rights and responsibilities of the American people are submitted to law, and where the variety of the legitimate interests of the American people are most fully represented. When people's representatives engage in constitutional deliberation, the American people engage in it too.

This is a day to remember that if the Constitution is going to endure—if the American people are going to continue to be a constitutional people—Congress must be the place where the Constitution is most deeply studied, interpreted, and lived out. Only then will the habits and principles of constitutional government be restored in our law.

Happy Constitution Day.

Ohio Farmer

Regime of Liberty

To the Members of the 112^th Congress:

9-11 changed everything:  so many have said.  But as we reflect on that day, it is good to recall what has not changed in the ten intervening years. 

Seasons have come and gone.  Leaves have turned color in New England's fall; flowers bloomed in the desert southwest with the spring rain.  Snow has piled high in the western mountains and filled rivers and reservoirs.  Drought has beset new areas, as it ended in others.  Torrential rains have brought flood waters; hurricanes have wreaked havoc; earthquakes shaken the West, the East, and points in between.  And the land has brought forth harvest after harvest.

Couples have fallen in love; babies have been born; the young have aged; some of the old, the famous and the unknown alike, have passed away, disease and time taking their toll.  But as always, the population of the United States has increased steadily, by more than 30 million.   Over 11 million people not born citizens became citizens.  All of them, like the millions who have come to us one way or another throughout our history, were drawn by the hope of a better life.

We have held two Presidential elections; over 130 elections to the Senate; over 1700 elections to the House of Representatives; and almost countless elections of Governors, state legislatures, judges, district attorneys, sheriffs, school boards, municipal commissions, and numerous other offices of public trust.  Some of these elections were barely contested, others bitterly fought, all part of the oldest continuing tradition of democratic politics known to history.

All of these events and many others have unfolded since 9-11, following a pattern unbroken since our Republic came into existence.  They manifest the unending concerns of the American people and of the republican government of, for, and by the people that has been ours for over 200 years.

Like floods, hurricanes and droughts, enemies remain part of our life as a people.  Among our current foes are those who oppose us because they do not accept the idea of the sovereignty of the people.  Only God, they believe, can be sovereign or all-powerful.  God must rule, therefore, not the will of the people.  Calling the people sovereign is blasphemous, and blasphemers must be punished or destroyed. 

Americans know that on this earth the rule of God always means only the rule of men, who claim to act in God's name and with his unlimited power and act merely in their own self-interest.  Americans reject such tyranny.  They long ago concluded that an all-powerful God may be disappointed in what His creatures do but could not be threatened by their exercise of his gift of freedom.  We suspect that those who kill and destroy in the name of a supposedly threatened God actually kill and destroy to defend their own privileges or their fragile sense of self-righteousness. 

In attacking the rule of the people, our current enemies are like those we have confronted and defeated before.  Nazis and Marxists similarly disparaged the sovereignty of the people, in favor of rule by a supposed master race or master class.  Not only did these former enemies disparage American principles, they disdained the American people.  They thought us cowards or too soft and divided to defend ourselves.  Our current foes made the same mistake.

It is understandable that our enemies underestimate the resolve and power of the people.  We do on occasion ourselves.  But when we do, we should recall what Thomas Jefferson understood, something else that has not changed.  A regime resting on the sovereignty of the people, a regime of liberty, will release immense energy and creative force.  More important, only such a regime can satisfy the age-old longing for justice—a human longing that will not be denied.  That is the true source of our power and our resilience.  It is in the light of this fact that we should contemplate the demands of peoples across the Middle East, especially the young, for governments based on the sovereignty of the people.  A sign of the weakness of our current enemies, of their impending defeat, is not their death but the rejection of their ideas by their own children.

As for ourselves, we should remember that government of, for, and by the people has never been easy, but it is best.  And it will endure and prosper, as will the people it serves.

Ohio Farmer

Changing Direction

To the Members of the 112^th Congress:

Much good has been done in Washington recently.  I do not refer to the details of the debt reduction agreement, some of which we have already noted, but to the change it signifies—a change of course for the country. Turning around a fleet of aircraft carriers is child's play compared to turning around the ship of state, but I believe we see before our eyes the signs of a great, ponderous movement of America in the right direction. We owe this hopeful movement largely to the determination of the constitutional conservatives within the GOP and to the good judgment of the new Speaker of the House of Representatives.

If you wonder why liberals are in a funk, why the President's approval ratings are hitting rock-bottom, why he signed off on the debt reduction agreement in virtual secrecy, why he is being criticized openly by progressives and even being compared to the feckless Jimmy Carter, why there is disarray within the Democratic Party, you need look no further than to those who elected a GOP majority in the House, the courage of the Representatives who were elected, and the prudence of Speaker Boehner.  He got almost everything he could reasonably have hoped for in the debt reduction agreement, producing the most radical reorientation of government in our generation. President Obama and the Democrats agreed to massive spending cuts, with more to come, and no tax increases.

This is a strategic and tactical disaster for the progressives and the Democrats, but, far more important is that the debt ceiling debate exposed what Speaker Boehner calls "the arrogant habits of Washington" and opened fundamental political and constitutional questions.  The debate in Washington is shifting away from the favors government might bestow to the question of the proper role of government. As satisfying as his political victory must be, Boehner should be most encouraged by the opening now created to begin a broader conversation about big-government liberalism—really limitless-government liberalism—and why it must be reined in.

If those who brought this about remain resolute, there is a chance of bringing American government back within the bounds of the Constitution.  Boehner and his Republican supporters are beginning to disprove an assumption held by progressives and liberals (and the media) since the New Deal: that government will always grow in size and scope, that all spending increases are permanent. This is a historic change, a movement toward re-establishing public recognition that there are some things it is better not to ask government to do (see Constitutional Lines). The ear of the public is now listening to the argument for limited self-government. If their elected representatives and other public leaders can continue to explain why limiting the power of the federal government is a good thing, we have the opportunity to form public sentiment into a durable governing consensus.

During the debate over the debt ceiling, much was said about how our government is so divided that it is dysfunctional, and how the solution to the perceived problem is bi-partisanship. Some went so far as to assert that the purpose of government is efficiency. Others argued or implied that a parliamentary system would be preferable to the constitutional one we have. After all, there are problems in the world, and our government is not solving them. 

We continue to hear such assertions on a daily basis, but they miss the point. The fact is that our Constitution builds in division (see The Sense of the People); it deliberately makes it difficult to form majorities, and even more difficult to hold them. The Constitution's purpose is not efficiency.  Our constitutional government is not unified, as is, for example, the British Parliamentary regime (we note in passing that the British prime minister speaks for the government, while our president speaks for his administration, only a part of the government). With its federalism, separation of powers, bi-cameralism, and other inventions of prudence, our republican regime intentionally divides, checks, and balances power, so that,

in the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.

Of course, this means that large issues cannot be quickly resolved. Changing direction in our constitutional regime is wonderfully and deliberately complicated.

The easiest and quickest way to form part of our constitutional majority is through the House of Representatives.  Should we be surprised that the new majority in the House—formed but two years into the majority that won the presidency and both branches of Congress for the Democrats—should assert itself?  And should we be surprised that the President's response is to ask this newest majority to become bi-partisan (read "Democrat")?  Politics is not rocket science.

The election of Ronald Reagan in 1980, along with the first Republican Senate majority since 1954, alerted us to divisions in the American electorate that had been muffled during the prior fifty years. Since then noisy debates have continued, with Republicans losing the Senate, then regaining it, losing the presidency, then winning the House, then losing it, and so on. We will need more than a few electoral cycles—and continued conversation and persuasion from the Republicans—to see whether the determination to limit government will take root in public opinion and become the principle of a new governing majority in American politics. In the meantime, let the divisions and the arguments for and against constitutional limits continue. Public reflection and constitutional deliberation is our strength, not our weakness.

Ohio Farmer

Constitutional Lines

To the Members of the 112^th Congress:

We have observed in these letters that the recent debt ceiling debate reflected deep divisions in Washington, D.C., but that those divisions, in turn, reflected the citizenry’s ambivalence about how big government should be, how much it should do, and how much it should tax, borrow, and regulate.  The first phase of the debt ceiling debate ended with legislation to raise the nation's legal borrowing authority by $900 billion and to cut planned federal spending over the next decade by a little more than that amount.  Thus, Congress and the president achieved Speaker of the House John Boehner's goal to match any debt ceiling increase, at least dollar-for-dollar, by deficit reductions.

The legislation also sets in motion a second phase, where a "super committee" of six members of the House of Representatives (three from each party) and six senators (also three from each party) will endeavor to reduce the nation's deficit spending over the next ten years by a further $1.5 trillion.  If the committee agrees on a plan by November 23, 2011, Congress approves it in an up-or-down vote without the possibility of offering amendments by December 23, 2011, and the president signs it, the debt ceiling will be increased by $1.5 trillion.  If the committee can't agree on a plan, or submits one the Congress votes down or the president vetoes, the debt ceiling will be increased by $1.2 trillion, and automatic reductions of federal spending by the same amount over the next decade will take effect – spending cuts evenly divided between discretionary domestic programs and national defense spending.

It is remarkable that, three years after the Democrats' across-the-board victories in the 2008 elections, deficit reduction has become the top item on the national political agenda.  The most important cause of this change in the political weather is the emergence of the Tea Party movement, which took shape in 2009 and propelled Republican gains in the elections of 2010.  That movement remains disparate – it has no headquarters, no single leader, and no agreed upon platform.  Yet some core ideas do connect all of the Tea Party's factions and actions. One friendly observer described the Tea Party essence as "populist constitutionalism," since its "divergent groups agree that the federal government has, over the last several decades, stepped further and further outside of the bounds of the Constitution."  Some of the movement's prominent figures describe themselves as "constitutional conservatives."

The endeavor to re-establish limits to the government's sphere of action and authority is highly laudable, and fully consistent with the logic and spirit of the American founding.  That undertaking will, however, be an intellectual challenge.  Reasonable patriots may disagree about the location of the line the authors of the Constitution drew separating what the government may do from what it must not do.  They may disagree, as well, about whether the logic of the Constitution countenances informal adjustments to the location of the government's boundaries over time, or demands formal adjustments only, using one of the procedures for amending the Constitution specified in its fifth article. 

For example, the power of Congress to declare war, specified in Article I, has fallen into disuse.  America hasn't declared war against any nation since 1941, yet has been involved in a number of wars over the past 70 years, some of them large and prolonged.  Does constitutional conservatism, rightly understood, entail retroactively designating all of these wars – including Korea, Vietnam, Operation Desert Storm, Iraq, and Afghanistan – illegitimate for never having been formally declared?  If so, then either Congress must declare war to authorize future martial actions, or the nation must amend the Constitution to give explicit legitimacy to the kinds of authorizations Congress has come to rely on, such as the Tonkin Gulf resolution that was the legal basis for the war in Vietnam.  If not, then resolutions and authorizations that fall short of formal declarations of war have acquired a de facto constitutionality: They aren’t mentioned in the Constitution, seem not to have been envisioned or favored by the Constitution’s authors, have not been the subject of any constitutional amendment, yet have gained acceptance as the way the federal government arrives at decisions about military actions.

The fact that there are disputes about the location of the line between what the government may and may not do, and about whether that line is bright and tight, or wide with shades of gray, does not invalidate the constitutional conservative argument that erasing any such line renders America a very different kind of republic.  James Q. Wilson, one of the preeminent American political scientists of the last half century, helps us understand this. The ultimate meaning of the triumph of the New Deal, according to him, is the collapse of the "legitimacy barrier."  Since its fall, he argued, "political conflict [has taken] a very different form.  New programs need not await the advent of a crisis or an extraordinary majority, because no program is any longer 'new'—it is seen, rather, as an extension, a modification, or an enlargement of something the government is already doing.  Since there is virtually nothing the government has not tried to do, there is little it cannot be asked to do."

The correct label for the alternative to limited government is not big government, but unlimited government.  The destruction of all legitimacy barriers creates a new constitutional logic in which government grows, not just very big, but limitlessly big.  All the forces – political, economic, and judicial – that might constrain it are rendered ineffectual.

This deformation of our republic has gone on so long, and acquired so much inertial strength, that the Tea Party movement's mission is politically as well as intellectually audacious.  We have had occasion to note in these letters Abraham Lincoln's argument that "public sentiment is everything" in American democracy: "With public sentiment, nothing can fail; without it nothing can succeed.  Consequently, he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions.  He makes statutes and decisions possible or impossible to be executed."

The ultimate goal of constitutional conservatism is to mold public sentiment into a broad, durable consensus in favor of rebuilding legitimacy barriers in American government.  This is not a task that will be accomplished by one legislative fight over the debt ceiling, or in one or two election cycles.  Conservatives, constitutional and otherwise, sometimes speak as though the establishment and perpetuation of the New Deal is the result of some kind of coup d'état.  The fact is, we have this bloated government because we, the people, have shown our favor to the expansion of government's activities far more reliably than to their contraction.  The success of constitutional conservatism will depend on exercising the statesmanship that carefully leads the people to set aside their acquired tolerance for a government that purports to have a program for every problem, and rediscover their older apprehensions that any government strong enough to give you anything you want is also strong enough to take away anything you have.

Ohio Farmer

In Search of Monsters

To the Members of the 112^th Congress:

"Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States." This is the first sentence in President Obama's recently issued Presidential Study Directive on Mass Atrocities.  Is it true?

It seems that there have always been, and until human nature changes there will always be, monstrous tyrants in the world doing monstrous things to anyone they can get in the grip of their claws. Whole nations seem capable of becoming bloodthirsty mobs.  Some rather nasty tyrants have been in the headlines lately.  Presumably Americans, who don’t like tyranny of any degree and who began our progress in the world proclaiming the natural right to overthrow tyrants, are especially opposed to tyranny that is atrocious and genocidal.  We could probably get 100% of sane Americans to agree that it is desirable to prevent it. But does this make preventing it a "core national security interest" and a "core moral responsibility" of the country?  

If men were angels there would be no atrocities to trouble us, but until men become angels, to implement this Directive will require endless American intervention across the sinful and suffering world.  America would have to become the "universal landlord," to use a colorful Shakespearean phrase, and this would be neither morally desirable nor strategically feasible, even assuming we were determined to exert all our means to this end.  If—unmindful of these moral and strategic truths—we actually meant what we say in the Directive, we would need urgently and radically to increase American spending on our armed forces.  We are certainly not going to do that. To the contrary, the President and his entire administration have taken pains to make clear that they intend to reduce American military power.  The President issued the Directive at the very time when he was emphatically making known his willingness to cut American defense spending drastically as part of his domestic negotiations over the debt ceiling. So, we do not mean what we say in this Directive, and everyone can see that. America is announcing its obligation to intervene to prevent evil in the world at the very same time that it is diminishing its ability to do anything about it. This is not "moral responsibility" but the height of moral irresponsibility.  It is moralistic boastfulness.

Given America's deteriorating defense posture, the President's Directive seems perfectly calculated to achieve moral bankruptcy in the eyes of the world to complement our actual bankruptcy at home.  From the victims of tyrants and their sympathizers it will bring resentment as they see us giving mere lip service to our moralistic commitment. From the tyrants—who are not in the habit of paying heed to weakness—it will bring increasing contempt for our boastful limp-wristed moralizing that speaks loudly and carries no stick.  

The President’s Directive also represents a further subordination of American foreign policy to the dictates of international institutions, especially the United Nations.  There is nothing morally responsible about submitting America's actions in the world to the judgment of this body.  Many of its influential members are the very tyrannies committing the atrocities the President wants to make pronouncements about.

There is an old saying about the world of nations. In that world, "the strong do what they will; the weak suffer what they must." This is not a cynical principle, but a candid observation of the facts. It is an expression of moral and strategic modesty. When you are weak, you are in no position to prevent injustices in the world, even injustices to yourself. If America wants to do any good in the world, for itself or anyone else, it is paramount that we be strong. Thus in its infancy, when the United States was weak, George Washington in his famous Farewell Address looked forward to a time when America would be strong enough to have "command of its own fortunes," and when  "we may choose peace or war, as our interest, guided by justice, shall counsel."

Within the memory of the older generation in America, the United States became the most powerful nation on earth, and it remains so.  But this is no cause for such boastful and empty pronouncements as the President's Directive. Especially as we recklessly fritter away the strength we have acquired with such effort and good fortune.

If we might more modestly suggest what is "our core moral responsibility," to ourselves and to mankind, we would say as we did in an earlier letter: It is to succeed in our own experiment in freedom. If we can show by the enduring success of our experiment that free government can be good government, this will be the greatest benefit Americans can bestow on their fellow human beings—our own political well being will be a constant act of philanthropy. 

Americans should intervene in the world when intervening enhances the prospects of the American experiment. To commit to more than that betrays America's national security interest and our core moral responsibility to ourselves and our fellow human beings. Much better than the boastful posturing of the President's Directive are the modest words of John Quincy Adams: America "goes not abroad, in search of monsters to destroy. She is the well-wisher to the freedom and independence of all [but]…the champion and vindicator only of her own."  If we vindicate our own freedom by securing it and using it well, it will be, as it has been from the beginning, a blessing and an inspiration to the world. It is as true today as it was when newly elected President Thomas Jefferson said it in his first inaugural: we are "the world's best hope."

Ohio Farmer

War and the American Character

To the Members of the 112^th Congress:

Can a free, democratic people possess the martial virtues needed to defend their interests in the hard world?  Early observers of the American republic doubted it. Some believed that a commercial people like the Americans were not cut out for war. Some thought that the American Constitution and federalism further disabled the country from waging war successfully.

That great student of America, Alexis de Tocqueville, thought that "The most important of all the actions that can mark the life of a people is war." (We are inclined to think that the most important of a people's actions necessarily take place in the peace achieved by war, but let’s set that aside for another letter.) Tocqueville's famous study of America had led him in the 1830s to the conclusion that "in the midst of a great war," confusions in America's Federal and state constitutions would cause either liberty or the American Union to crumble. American republicanism, he thought, would be saved only by geography: far from the rest of the dangerous world, it was the "great good fortune of the United States…not to have hit upon a federal constitution that enables it to endure a great war, but rather to be so situated that it need not fear such a war."

The many failures of American arms during the War of 1812 seemed to have validated Tocqueville's view, but only a decade after he wrote, American success during the war against Mexico suggested that there may be more to be said on the question. Americans are, indeed, a people who prefer peace and the prosperity that comes with it, but if our history so far is any indication, we seem to be a people who are not necessarily spoiled by those conditions. When aroused to action, Americans have traditionally responded with alacrity and courage, as they did after Pearl Harbor and again after 9/11. And contrary to Tocqueville’s expectations, the Federal Constitution has enabled the United States to wage war successfully without destroying liberty at home.

We approach the tenth anniversary of the terrorist attacks of September 11, 2001.  America has been waging war for a decade. Our experience in this war confirms a long-standing conviction of the American people.  From the time of the American Revolution, Americans have acted on the fundamental belief that the virtues needed for war are not the exclusive property of a professional military establishment—a "standing army"—but can be found in the citizens of the republic at large. Today’s American military is clearly “professional” in the sense that service members are long-term volunteers, but those who serve understand themselves to be every bit the citizen soldiers their forebears were during World War II. This is a force of republican citizens motivated by a deep sense of duty and loyalty to their fellow citizens.

After 9/11, many Americans who could have avoided military service chose to enlist in the military and to fight the wars on which the United States has embarked over the past ten years. It is a tribute to the character of Americans—citizens of all backgrounds—that many chose to forego comfort, safety, and livelihood to engage America's enemies.

The cost has been high. Nearly 4500 Americans have died in Iraq and another nearly 1200 have given the last full measure of devotion in Afghanistan. In the most recent war news, details continue to emerge of the loss of 30 Americans, including 17 Navy SEALs, in a helicopter crash in Afghanistan.  Many thousands more have been wounded. Yet even as casualties were rising during the darkest days in Iraq before the "surge" took effect, the services—including those whose members routinely face the greatest danger in the kind of war we are now fighting, the Army and Marines—were meeting their recruiting requirements while retaining large numbers of those eligible to leave the service. These numbers speak eloquently to the martial character of the American people.

The United States is fortunate to be defended by such men as the SEALs who gave their lives in Afghanistan. The quality of today's American military as a whole is extraordinary, and these SEALs and the other "special operators" like them are by consensus the very "best of the best." We mourn their deaths—and the deaths of all who serve the good cause of our country. In honor to this cause, let us mourn them as the heroes they are, and not treat them as some in the country once treated those who served in Vietnam: as "victims."

Our warriors, brought to manhood in the bosom of the American Republic, understand—as we their fellow citizens sometimes forget—that war will always be with us. Civilized peoples will need to be prepared for war so long as savagery and barbarism exist in the world. We can defeat the barbarians and savages when they threaten, but, human nature being what it is, they will always arise among us again in one form or another.

So long as there are people who will kill for gain and power, America will need soldiers who will kill to stop them. But this requires honesty about war and its costs. When we send our fellow citizens into war we must have a clear idea of what we are asking them to do, and must do all in our power to equip them to succeed. Above all, we must do our part to keep the country they serve worthy of their sacrifices.

Ohio Farmer

Words and Politics

To the Members of the 112th Congress:

Everyone across the political spectrum has been rightly celebrating the one grace note of the recent protracted battle in Washington over raising the debt ceiling—the moment when Arizona Representative Gabrielle Giffords appeared on the House floor, still recovering from her grievous wounds, to cast a vote on the climactic legislation. 

Giffords' welcome presence revived discussion of "civility" in our political life, a respectable term that had been deployed in the most uncivil way against raucous Tea Party activists in the moments after Giffords' shooting in January.  Then in the heat of the debt ceiling battle, leading journalists and office holders who have been most sanctimonious about civility called the Tea Party "terrorists." It should go without saying that civility is important to "civil society," but it should be equally noted that a high rhetorical pitch is especially endemic to democratic forms of government that put a premium on serious public argument over essential questions of justice and policy.  There is an opportunity here for the Tea Party to turn this attack on its head, and to break new rhetorical ground in Washington.

The fervency of Tea Party rhetoric about potentially tyrannical government is nothing especially new or different in American politics; nor is there anything new in critics using extreme language to attack the Tea Party's supposed extremism.  John Adams and Thomas Jefferson, who first fought each other with extreme bitterness and then conducted one of the most edifying correspondences between statesmen in human history, might well find the current discussion of civility in politics to be frivolous and unserious.  Jefferson's supporters charged Adams with wanting to refasten British monarchy on America, while Adams' supporters alleged that Jefferson's election would mean the importation of the French guillotine and the blood of revolutionary terror running through every American town. 

Our tender censors of political discourse would exhaust their vocabulary of outrage if faced with the harshness of public discourse at earlier periods of our history, not to mention the ways the hot tempers of political argument spilled over into actual violence.  The famous duel between Alexander Hamilton and Aaron Burr was a rare but not unheard of thing in the early years of our republic; as nastily as our politicians can speak today, at least no one has been assaulted in a Capitol chamber like Senator Charles Sumner in 1856, when Rep. Preston Brooks beat Sumner savagely with a cane in the heat of the bitter debate over the Kansas-Nebraska Act.  Nor have we seen mobs descending on newspaper offices and shooting editors as occurred in Alton, Illinois in the famous case of Elijah Lovejoy in 1837—the event which inspired the teaching of Lincoln's first great speech at the Young Men’s Lyceum the following year.

It may not simply be a lack of historical perspective, however, that has led to the current focus on civility in politics.  There is no doubt that changes in modern mass media have amplified our political discord.  In two generations we have gone from a media world of mostly print and radio to 24-hour television news and the always-on, unfiltered anarchy of the Internet.  Perhaps this may amount to a qualitative change in the effect of political rhetoric, just as the invention of movable type 500 years ago was a socially and politically disruptive mass media technology.  Like movable type and cheap books five centuries ago, our all-encompassing high tech mass media world is here to stay.  As the kids say, deal with it.

There is one aspect of political rhetoric, however, that office holders have within their power to change, and that change might help remove the sense many citizens have that our political class is remote from us.  When elected officials arrive in Washington, they very quickly pick up a way of talking that is not found in any other walk of life.  It comes in two forms.  First is the language of "comity," the way in which our senators and representatives habitually refer to their bitter political opponents as "my good friend from the great state of Colorado," and so forth.  In a few cases, this language expresses a true friendship across party lines, but it is usually a lie, and everyone watching on C-SPAN knows it is a lie. 

This language probably is an import from the British parliamentary procedure of referring to the "right honorable gentleman from Blaby," or some other specific constituency, in the House of Commons debates, but the formality of assuming honor in one's opponents is a different thing than asserting friendship where none exists.  This language of comity probably serves a useful purpose in keeping political discourse more temperate, but why not drop the pretence and use more neutral language—"the representative from New Jersey," "the senator from New Mexico," even "the honorable representative from New Jersey"?

Second, elected officials in Washington always lapse quickly into a Capitol Hill jargon that subtly reinforces some bad tendencies of modern government in ways that are almost unnoticed, but which contribute to the peoples' dislike of our political class.  Members of the House, in particular, speak of "my constituents" back home in the district.  But speaking of your fellow citizens as "constituents" abets the notion that your primary job is to pry as many goodies from Washington as you can for your "constituents." If the Tea Party caucus really wants to mark themselves out as a different kind of political force, they should think about banishing the term "constituents," and instead speak of citizens—a term which emphasizes our political equality.  (By the way, like the "right honorable gentleman" usage, this particular formulation is also an import from Britain, and it conveys the sense that our elected officials are our masters more than our representatives.)

In a similar vein, Tea Party caucus members should try not to use Capitol Hill jargon, which most members, especially new ones, adopt to convey the air of insider-sophistication.  Some of the special terms of art on Capitol Hill, like "budget reconciliation" and so forth, are unavoidable, but other phrases could benefit from Chruchill's rule of linguistic simplification.  For example, don’t speak of using an "expedited process" to consider budget issues; instead, say "fast track." Then the fact that nothing is ever fast in Congress will be revealed with some embarrassment for the process-oriented insiders.

If Tea Partiers actually speak differently as well as thinking differently, it will mark them out even more as a reforming force in Washington.  And if they do that, their critics will continue to call them names, mostly short, non-jargony names that are easy to make out.  That will be another sign of their impact.

Ohio Farmer

The Sense of the People

To the Members of the 112th Congress:

In the negotiations over increasing the national debt ceiling, one fact is so obvious it has barely been mentioned: America has a government that can be, and currently is, divided. A Democratic president and Senate majority leader sit at the table with a Republican Speaker of the House.

Were the configuration otherwise, as it was between the 2008 and 2010 elections when Democrats controlled the House of Representatives as well as the Senate and the presidency, the debt ceiling debate would probably not be taking place at all. When Democratic majorities in both houses of Congress passed an increase in the debt ceiling in 2010, Republican legislators made some critical speeches but the bill moved swiftly to President Obama's desk for signature.

The possibility of divided government inheres in a constitutional republic where both houses of a bicameral legislature and the head of the executive branch are all elected by the people, but not by the same people at the same time. As our civics textbooks teach us, each Representative is elected for two years by voters in one of the 435 congressional districts. Senators are elected every six years, state-by-state. Because those six-year terms are staggered, only one third of the Senate faces the voters in any given election, while the entire membership of the House does. Presidents are elected every four years by the entire, constitutionally organized, national electorate.

Divisions like America's could never occur in a parliamentary democracy where the people elect the entire legislature at once. The party that wins a majority forms a government, and the prime minister – a member of the legislature, as are all the cabinet members – submits legislation that his party invariably passes. Such systems have been described as "dictatorships punctuated by elections."

More than a century ago, the American Progressives began their historic assault on our constitutional system, yearning for the clarity and dispatch of a parliamentary system. Woodrow Wilson, for example, sought sweeping reforms that would "make self-government among us a straightforward thing of simple method, single, unstinted power, and clear responsibility." H.L. Mencken, Wilson's contemporary, offered a less celebratory expression of the same idea: "Democracy is the theory that the common people know what they want, and deserve to get it good and hard."

One strand of the political philosophy woven into the Constitution is that sometimes the people don't know what they want, and other times they think they do, only to wind up regretting their "settled" opinions after some reassessment. The Constitution's authors believed, as one of them stated in Federalist 63, that "where the concurrence of separate and dissimilar bodies [such as the House and Senate] is required in every public act," the republic is best prepared to navigate "particular moments in public affairs when the people . . . may call for measures which they themselves will afterwards be the most ready to lament and condemn." The objective, as we have had several occasions to observe in these letters, is that "the cool and deliberate sense of the community" will "ultimately prevail."

Each party would clearly prefer to deal with the debt ceiling, and the nation's long-term fiscal problems, on its own terms, with both houses of Congress and the presidency under its control. If the Democrats had their way, that would mean higher taxes, especially on the rich; more borrowing, especially until the unemployment rate is much lower; and few spending cuts, especially from domestic programs. If Republicans controlled both ends of Pennsylvania Avenue, they would emphasize spending cuts, especially to domestic programs; less borrowing; tax reforms to apply lower, simpler tax rates to a broader, more vigorous tax base; and regulatory reforms to stimulate economic growth.

Which approach best reflects "the will of the people"? That may be a question that doesn't, at least for the moment, really have an answer. It's not as though either party's philosophy has been hidden over the past years, or undergone profound changes. The voters knew what they were getting when they gave Republicans control over all the federal elected branches from 2002 to 2006, and then when they disliked the results, and chose to check a Republican president with a Democratic House and Senate. The voters knew, or should have known, what they were getting when they empowered Democrats to run everything in 2008, and then again two years later when they decided to return the Republicans to a majority in the House to curtail the Democrats' policy-making latitude.

It would be fair to say, in other words, that the electorate has serious misgivings about both the Democrats' "big government" approach and the Republicans' "limited government" one. After signing up for either, the people quickly succumb to buyer's remorse and avail themselves of the opportunity to weaken or impede the "mandate" they conferred an election or two ago.

Americans didn't used to hedge their political bets this way. From 1900 to 1980 the White House, Senate, and House of Representatives were controlled by the same party for a total of 56 years, 70% of the time. Those 56 years included 14 consecutive years of Democratic control, from 1932 to 1946, when the New Deal was launched, and eight more from 1960 to 1968, which saw the beginning of the Great Society.

By the time the ballots from the 2012 election are counted, the same party will have controlled both houses of Congress and the presidency for only 8 of the preceding 32 years, or 25% of the time. This new era, in which divided government is the rule rather than the exception, was ushered in by the election of Ronald Reagan to the presidency, and GOP victories that gave the party its first Senate majority since 1954.

It's hard to believe that these two developments – the emergence of a credible conservative opposition to the governmental activism promoted by FDR and LBJ, and the beginning of a long era in which partisan majorities are rare and transient – are coincidental. Roosevelt and Johnson spoke to and for an American majority that liked the benefactions big government bestowed. Reagan spoke to and for a majority grown skeptical about the taxes, borrowing, and regulatory intrusions big government required.

That skepticism was sufficient to slow the growth of big government, but not to dismantle the New Deal/Great Society. For the past thirty-one years the American people have straddled an untenable position: voting in favor of most of what big government does, but against most of what big government requires. The debate in Washington over the debt ceiling is an echo of the debate, across America, over the proper scope and cost of government, a debate that seeks a resolution it has not yet found. The cool and deliberate sense of the national community will ultimately prevail, but it must first settle on one or the other of two alternatives that are fundamentally opposed.

Ohio Farmer

Willful Majorities or Constitutional Majorities

To the Members of the 112th Congress:

The 2012 elections loom in the near distance, and the presidential race could well be tighter than in 2008. So pundits, professors, and some politicians express concern, as they do every four years, that the candidate who wins the majority of the national popular vote might not win a majority of the Electoral College vote. I know this is a mathematical possibility; I think it has happened four times in 56 presidential elections. But does this possibility somehow violate the principles of fundamental fairness, disenfranchise the American voter, and bring disgrace to American democracy?  This is what is alleged every four years by those who advocate overturning the Electoral College. 

By the testimony of the Framers of the Constitution themselves, designing the office of the presidency was the most difficult task they faced. They began with the idea of having an executive chosen by the national legislature; they considered having him chosen by state legislatures, state governors, directly by the people, by special electors, and by various combinations of these methods. The mode of selection was a question inseparable from other questions: what powers to be granted to the office, the term of office, the question of reeligibility, whether the executive should be single or plural. These questions were also related to the foundations, powers, and structures of the other branches. And all these questions were related to the overarching question of how to construct a government that would best secure the safety and happiness of the people. 

After weeks of deliberations, the Framers came up with a mode of selecting the president that has managed to provide for the relatively seamless transition of government for over two hundred years.  Aside from this commendable record, the Electoral College seems to have other desirable effects. It discourages regional parties, moderating local interests by inducing them to seek a national and federal base; it provides protections for minorities, beneficently affects the character of majorities formed in selecting a president, and makes the president beholden not to the passions of a numerical majority, but to the Constitution.  In all these ways, the history of the Electoral College has justified Alexander Hamilton’s conclusion that, if this mode of selecting a president is not perfect, it is nonetheless "excellent." 

Dismissing all these interesting ingredients of our constitutional politics, opponents of the Electoral College demand simple national majoritarianism in the selection of our presidents.  But they recognize that they do not themselves have the constitutional majority necessary to amend the Constitution.  So, with no apparent sense of irony—dubbing themselves now the “National Popular Vote” movement (NPV)—they have devised a way of nullifying the Electoral College by substituting a constitutionally dubious, potentially minority vote for the constitutional majority required in the amendment process.  The NPV has launched a movement to persuade states representing 270 electoral votes—the number it takes to win the presidency under the current electoral college system—to agree through a “compact” to award all their electoral votes to the presidential candidate who wins the popular vote nationwide.  

Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont, Washington state, and the District of Columbia have already agreed to this compact. A bill to make California part of the compact (AB 459) has just been approved by the California legislature and awaits the signature of Governor Jerry Brown. If California’s 55 electoral votes are to be added to the compacting states, they will be about half way to the 270 votes needed to activate the compact. In each of the states participating in the compact, the majority vote of the states’ citizens is to be dismissed—or, actually, reversed—if it disagrees with the majority vote of the nations’ citizens. If a candidate wins a state but loses the national popular vote, this compact requires the state to allocate its electoral votes not to the candidate who wins in the state, but to the candidate who loses—some democracy!  

The NPV seeks constitutional authority for its effort in Article II, Section 1, of the Constitution, which says regarding the election of the President:  “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”  Their ambitious reading of this article shows the respect for the Constitution that one would expect from a movement seeking to undermine the constitutional requirements for elections by circumventing the constitutional requirements for amendments. 

As to Article I, Section 10, of the Constitution, dealing with interstate compacts, the National Popular Vote movement dismisses it as irrelevant. This is what the Constitution says:  “No State shall, without the consent of Congress…enter into Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay” (emphasis added). But the NPV argues that their “compact” is none of Congress’s business.  Do you think presidential elections are none of your business? 

We Americans are a constitutional people. From the beginning, we insisted that our politics must be answerable to the consent of the governed, and we devised constitutional ways of constructing and shaping our authoritative consent so that our choices would not reflect mere willful majorities but would reflect the cool and deliberate and just sense of the community.  If we are to change the electoral system in a fundamental way, we should engage, not in constitutional trickery, but in the constitutional deliberation provided for the purpose—as we have done several times in the past.  We should always be skeptical of attempts to circumvent provisions very deliberately put into the Constitution, just because a loud interest group of the moment finds them inconvenient. Where populist passion seeks to circumvent the Constitution in order to remove a constitutional check on populist passion, we should be all the more skeptical. 

Ohio Farmer

The Just Powers of Government

To the Members of the 112^th Congress:

In the last letter, I considered why and how it is that in the American logic of freedom, the just powers of government are derived from the consent of the governed. In this letter, I am concerned with a current development in our politics that threatens dangerously to remove our government from our consent. If the letter seems painfully burdened with acronyms, please forgive the fact as a vice inseparable from the subject.

Several lawsuits have been filed against the Patient Protection and Affordable Care Act (PPACA or "Obamacare") since it was enacted in March 2010.  The ones that have worked their way into the federal court system so far contest the law's "individual mandate," which subjects people to monetary fines if they fail or refuse to enroll in a health insurance policy.  The lawsuits' question, which the court and the people must consider, is whether the legitimate powers of the federal government respect or traduce the inalienable rights of the people by requiring them to buy a financial product from a private vendor.

One lawsuit against PPACA raises a different and equally important question: Does the law violate the constitutional principle of separation of powers?  The Goldwater Institute challenges, specifically, the constitutionality of PPACA's "Independent Payment Advisory Board" (IPAB). The Board is the law's chief mechanism for bending the medical cost curve downward by reducing the growth rate of Medicare outlays to the rate at which the Gross Domestic Product increases, plus one percent.  IPAB's 15 members will be appointed by the president and confirmed by the Senate.  Since it won’t adjust the premiums or deductibles paid by Americans enrolled in Medicare, IPAB's power derives from its mandate to set the rates at which Medicare reimburses doctors for the various services or procedures they perform.

IPAB's power is buttressed by PPACA's extraordinary protections for it, whose constitutionality is at issue.  Even though IPAB is an executive branch agency, its "legislative proposals" – the PPACA uses the term repeatedly – become law unless Congress passes a bill that cuts medical spending by an amount equal to the IPAB proposal. They become law, that is, if Congress does nothing.  If Congress tries to do something, its alternative can prevail over the IPAB proposal only if the former garners a three-fifths majority in the Senate.  The law makes no provision for citizens, such as doctors, to challenge IPAB's determinations administratively or judicially.  Furthermore, PPACA asserts the right to dictate what future Congresses may do, and when: IPAB can only be abolished, according to its provisions, by legislation introduced and enacted between February 1, 2017 and August 15, 2017.  Even if enacted in that small window, the abolition cannot take effect until 2020.

Peter Orszag, President Obama's director of the Office of Management and Budget at the time PPACA was enacted, said, "I believe [IPAB] is the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve."  He was speaking approvingly.  Democratic congressman Pete Stark, who got a 90% rating from the liberal Americans for Democratic Action in 2010, made the same point about IPAB far less fondly, calling it "an unprecedented abrogation of Congressional authority to an unelected, unaccountable body of so-called experts."

In a nation founded upon the principle that governments derive their just powers from the consent of the governed, the decision by Congress to yield so much of its sovereignty to an unelected, unaccountable body is really a decision to yield the people's sovereignty for them.  Thus, if PPACA withstands all its challenges in federal courts, an outraged public could elect a ferociously anti-IPAB Congress in 2012 and 2014 – to no avail whatsoever.  The Board remains beyond the voters' reach until after the 2016 elections – and then only for a 6½-month period, after which the door slams shut again, bolted against meddling by mere citizens for the duration of the republic.  

Like most bad ideas, IPAB is the elaboration of a less bad idea.  Its predecessors include such bodies as the Base Realignment and Closure Commission, which drew up lists of military bases for the Pentagon to close, lists that Congress could accept or reject in their entirety, but could not add to or subtract from.  If Congress did nothing, the BRAC proposal was enacted. 

"Stop us before we pander again," seems to be the legislative principle embedded in these commissions.   Or do you think that is an unfair assessment?  It seems to me that when Congress voluntarily surrenders some of its legislative power to a commission, it is admitting that rendering good government as good politics is too daunting and risky.  Wise and judicious policies, you seem to be saying, might prove to be too hard to explain to the voters; or they might be criticized by a political opponent in a 30-second television ad.  Better, then, to leave the tough calls to commissioners who derive their powers from the consent of the governed in arcane, impenetrable ways.  

Once entrenched, it is doubtful that government of the people by the commissions will ever be dislodged.  The threat comes not only from the prospect that the commissioners' power will tend to corrupt them, but from the citizenry's passive acquiescence in the attenuation of their own sovereignty.  At the heart of the American experiment is the belief that democratic government can also be good government.  If it turns out that only philosopher-kings, benevolent dictators, or unaccountable experts can provide good government, the experiment will have failed. 

IPAB, then, is not just outrageous, it is contemptible.  By out-sourcing its legislative power Congress is saying that it doesn't trust the people to make wise decisions, and doesn't trust itself to explain such decisions to them.  If IPAB stands unchallenged, the American polity will have suffered a grievous blow.

Ohio Farmer

The American Mind

To the Members of the 112th Congress:

We saw in the last letter that the revolutionary principles Americans declared to the world on July 4, 1776—the principles that gave rise to a New Order of the Ages when, in support of them, the American people pledged their lives, fortunes and sacred honor—were not "new principles . . . never before thought of." They were principles already well understood by the American people, who were in the midst of a historic conversation about the principles of political freedom, a conversation that gave birth to what Jefferson called "the American mind."  The Declaration of Independence expressed in bold American terms the logic of political freedom that had become the common sense of the American people.

One essential ingredient of this logic of freedom, which is still very much part of American common sense, was the idea that, because human beings are equal and free by nature, legitimate government can only arise from the consent of the governed. A nation dedicated to the proposition that all men are created equal will—if circumstances permit—be under a "government of the people, by the people, for the people." In other words, the principle of equality gives rise most naturally to a democratic or republican form of government. James Madison expressed this idea in Federalist 39, where he considered whether the government proposed under the new constitution would be "strictly republican." "It is evident," he wrote, "that no other form would be reconcilable with the genius of the people of America . . . [or] with the fundamental principles of the Revolution."

Because of our conviction that consent is the foundation of legitimate government, we are concerned in every election that the election be fairly conducted, truly expressing the choice or consent of the people. But although consent is the only foundation of legitimate government, it does not follow that all governments founded on consent deserve the respect of freedom’s partisans. The Founders did not suppose that a tyranny must be submitted to by a minority just because a majority elected it. That would mean asking those who are to be oppressed by a majority to accept their oppression with equanimity—as the rightful expression of the noble principles of democracy.  It would be to tell oppressed peoples everywhere to cease their struggles for their natural rights as soon as they learn they are outnumbered. What could be more slavish?

These days this point has particular relevance to the various uprisings—some apparently supported by majorities—across the Arab world. These uprisings and rebellions are typically against various forms of tyranny, but they often seem to possess the potential to replace one tyranny with another. How would Jefferson’s “American mind” think about such human events?  It would begin, I think, by acknowledging that majority rule is the natural authoritative expression of the consent of the governed; in the same breath, it would observe that free government is instituted to secure the rights of all the people, not just the majority.  The very purpose of free government thus sets limits to what even a majority may rightly do.

Jefferson, in his first inaugural address, expressed this idea with characteristic felicity when he urged his countrymen to "bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law must protect, and to violate would be oppression." The will of the majority must be exercised within the bounds of that moral order which legitimates majority rule itself.  A thousand tyrants are no more palatable than one.  Majority rule and minority rights are therefore inseparable principles of free government. Being bound to respect minority rights does not detract from the majority’s right to rule; it dignifies it. Americans are partisans of free government, but this does not make them partisans of elective despotism, at home or abroad. Oppressive majorities deserve no more respect from us than any other oppressors.

This leads to another ingredient of the logic of political freedom or of American common sense—the idea of "equal law," which Jefferson mentioned in his first inaugural. As we have noted, the idea of human equality and freedom carries with it the recognition of human rationality; it also contains within it recognition of the limits of human rationality.  Because human beings are by nature rational beings, one man may not rightly rule over another as he may rightly rule over a non-rational being (a dog or a horse, for example).  But also, because no man is all-knowing or all-good—that is, because human reason is limited and fallible and subject to human passions—one human being may never rightly subject himself to the unrestrained will or unlimited power of another. This is what Madison meant when he wrote that "government... [is] the greatest of all reflections on human nature."

If men were angels [he wrote], no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.

Human nature or human equality—the fact that human beings are neither angels nor mindless brutes—gives rise to the idea of constitutional or limited government. This is a political constitution that conforms to the natural constitution of man. Because human beings possess reason, their consent can give rise to legitimate government; because human reason is fallible and subject sometimes to unreasonable passions, human government must be subject to law.

It required much experience, reflection, and study for the American revolutionaries and founders to equip the American mind so that its common sense might establish free government that would be good government. Their exertions have left a rich legacy to us, making it easier—though never easy!—for us to ensure that America will continue to be what the revolutionaries and founders rightly thought it was at its inception—"the world’s best hope."

Ohio Farmer

Novus Ordo Seclorum

To the Members of the 112th Congress:

America will always have the honor of being the first nation on earth to dedicate itself to the self evident truth that all men are created equal, as it did in declaring independence on July 4, 1776. In that dedication truly was created a New Order of the Ages—a Novus Ordo Seclorum as we say on the Great Seal of the United States. Let us take the occasion of this Independence Day to continue our reflections on what this means. What does it tell us about the foundations, forms, and purposes of American politics? What does it require of us—deserve from us?

Lincoln called the idea of equality the central idea of the American political experiment, from which all its other ideas radiate. It is, he wrote, “an abstract truth, applicable to all men and all times”; it is a philosophical idea about human nature and the just relations of each human being to all others. The revolutionary and founding generation of Americans expressed this idea of human equality in a variety of ways. The familiar language of the Declaration of Independence is "that all men are created equal." To express the same idea, the Virginia Declaration of Rights (June 12, 1776) stated that "all men are by nature equally free and independent." The Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts (March 2, 1780) stated that "All men are born free and equal."

To say that all men are by nature equal is to say that human beings are not naturally subordinated one to another: Whatever the many differences may be among human beings, no man is by nature a master; no man is by nature a slave. This is what Jefferson’s vivid metaphor meant, which we quoted in the last letter: "the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God." Of this revolutionary idea, at the heart of the Declaration and at the heart of the American experiment in self-government, Lincoln wrote on the eve of Civil War, “that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.” And so it has proven to be: a powerful rebuke and a stumbling block to every form of tyranny and oppression—whether of race, class, or religion, whether home grown or foreign born—that has raised its head over the past two centuries.

Human beings, then, are naturally free as they are naturally equal. It is from this human equality and freedom that the founders derived the idea that government could only be justly founded on consent. Because human beings are not by nature subordinated to one another—that is, because they are equal and free—their consent must be obtained before any human being may rightfully exercise authority over them. It is the voluntary consent of the people that gives authority to government. Only a being possessing reason—a being who can distinguish right from wrong—is capable of voluntary consent. This is why the deepest root of American politics is in the fact, as Thomas Jefferson put it in the Virginia Statute for Religious Liberty, “that Almighty God hath created the mind free.”

Government among free and equal men is formed, the American Founders would say, by social contract or social compact. In the words of the Massachusetts Constitution of 1780: "The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people." The American body-politic is a voluntary association begun when, in the last words of the Declaration of Independence, "for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge[d] to each other our Lives, our Fortunes, and our sacred Honor." This is the political community that new citizens enter into when they become citizens. To take on the responsibilities of such citizenship, it is necessary—for citizens old and new—to understand the principles on which this citizenship is based. So it is a useful tradition, as the Fourth of July comes around each year, to reflect again—and again—on the American political principles famously declared to the world on the original Independence Day.

As Thomas Jefferson wrote late in life, in drafting the Declaration of Independence he had not meant to proclaim any "new principles, or new arguments, never before thought of," but merely to express "the American mind." The Declaration contains a stunning summation of the principles of free government; but it was only because the American people already understood these principles that it was possible to establish a government based upon them. Similarly, only if we are capable of understanding these principles will we be able to preserve and perpetuate, maybe even to strengthen and improve, the free institutions—the Novus Ordo Seclorum—that began to arise from them in 1776.  For our own sake and for the sake of the cause to which our country was dedicated on that original Fourth of July, let us take this occasion to renew our dedication to that cause and its noble principles. No one else can do it for us. It will do a world of good. And it is a cause worthy of the last full measure of devotion.
Happy Fourth.

Ohio Farmer

A City Upon a Hill

To the Members of the 112th Congress:

 Is America exceptional? Is it unique among the nations? If so, what makes it so? And what are the implications of the fact? These are not policy questions, but questions about ideas and historical circumstances that are at the foundation of policies. They are the kinds of questions, it seems, that you and other elected and appointed public officials are often compelled for no particularly good reason to answer, as was the president a short time ago. Perhaps this may sometimes seem a tedious requirement of your job, especially when journalists asking the questions have no interest other than ginning up a headline. And so it is understandable if on occasion you reach for plausible sounding formulas in the hope that they will not cause a headline of an undesirable sort. But your answers can matter a great deal. They can be an opportunity to shape the public’s sentiments and opinions in a way that helps free government remain good government.  Answering such questions—even when they haven’t been asked—has in the course of our history given an opportunity for America’s greatest statesmen in small or large ways to strengthen the capacity of their fellow citizens to govern themselves. On the other hand, there is hardly a greater mischief that can be done to the people than to give them bad answers to such questions.

In my last letter I took the liberty of questioning the notion, recently espoused by some leading public officials, that America is exceptional because its principles give it a special right and responsibility to lead. This is a confusion, I argued, if an understandable confusion, of a genuine American exceptionalism that is older than America itself—namely, the idea of America as an example to the world—“a city upon a hill,” as John Winthrop said to the future Massachusetts Bay colonists.  By 1776, when the thirteen colonies assumed their separate and equal station among the powers of the earth as the United States of America, they did so proclaiming principles that made America truly exceptional.  “We hold these truths to be self evident,” they declared, “that all men are created equal, that they are endowed by their creator with certain inalienable rights,” including life, liberty, and the pursuit of happiness. No people on earth had ever based the authority of their laws on such an assertion. So the historic effort to establish government upon this principle was in truth an unprecedented and exceptional—a then unique—experiment in self government.

As Thomas Jefferson put it in his last surviving letter, written just before he died fifty years to the day after July 4, 1776, the American idea of equality meant “that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.” America was exceptional in founding our politics on what is least exceptional about us, on what we share with all other human beings at all times and in all places, rather than on any accidents of birth or circumstance that separate us.  For this reason, Jefferson thought that the principles proclaimed in the Declaration not only gave hope to all Americans but were “grounds of hope for others,” everywhere and always.

The experiment of living up to these principles is the American experiment—the effort generation after generation to rise to equality, as Lincoln put it. So long as America remains America, it will be the country first dedicated to this proposition that all men are created equal, and ever aspiring to rise to its demands. Lincoln, echoing Jefferson, called the American idea the “principle of ‘Liberty to all’—the principle that clears the path for all—gives hope to all—and, by consequence, enterprise, and industry to all.”

The American experiment claimed to be an exceptional experiment not only because of its principles, but because conditions here in America were more favorable to the experiment in self-government than anywhere else in the world. The Founders’ America really was a land of opportunity as had never been known in the world before. The United States, as the saying then had it, became “the best poor man’s country on earth.”  Ordinary people, secure in their equal liberty and therefore full of hope and enterprise, could farm their own land and enjoy in peace the bread of their labor; and for the first time in human history, they or their children could aspire without limit to great things—even to the Presidency of the United States. If the experiment in self government fails here, our Founders thought, that failure might be taken as a strong proof that, contrary to American assertions, human beings are not made to govern themselves.

Just as Jefferson and Lincoln hoped, the example of America has helped spread the blessings of liberty to other peoples. Many countries now claim equality as the principle of their politics.  May they live up to those principles, as we hope to do ourselves!

Here in America, when we succeed in living up to our principles, we do something more important than establishing our right to lead.  We establish our worthiness to lead, whenever our interest guided by our justice should require. To rise to these principles, we must understand them. And since we are not born understanding them, we arrange as best we can to learn them from one another—sometimes by listening to our politicians talk about our country—and to hand them down to our children. Can there be a more propitious occasion to refresh our understanding than the annual approach of the Fourth of July?  Let us return to these themes next week.

Ohio Farmer

"American Leadership"?

To the Members of the 112th Congress:

Does America have a unique right and duty to lead the rest of the world?  Many decent, patriotic citizens, with no wish to be boastful or presumptuous, and without probing the question too hard, might be inclined in some general way to answer in the affirmative. And if these citizens have been heeding the pronouncements of their elected and appointed representatives recently, they may be forgiven for getting the impression that their affirmative should be emphatic.

“The world is counting on us,” Secretary of State Clinton said a few months ago.  “The United States can, must and will lead in the new century.”  Secretary of Defense Gates made a similar point when talking about the defense budget, reiterating his “fundamental belief” that “America does have a special position and set of responsibilities on this planet.”  Congressman Paul Ryan echoed the sentiment in a recent speech about the effects of America’s deficit and debt on our place in the world.  “We must lead,” he said, “and a central element of maintaining American leadership is the promotion of our moral principles.” 

One advantage the American Founders hoped for from a large and diverse representative republic was that our elected and appointed representatives might “refine and enlarge the public views” when they chose to honor a subject with their attention. But we all know that there is a relentless demand for public officials to make public pronouncements, and it is not surprising when under such pressure their pronouncements do not always display the wisdom or even the good sense we might hope for. Still, these letters optimistically take the speech of our public officials seriously, in the determined hope that they too will take it seriously and not wantonly strew sound bites around in the word-cluttered world.  So when, in the interest of the public views, we take seriously the sentiments quoted above, we can’t help wondering whether they could use a little more refining and enlarging.

If we follow the logic of the argument, and we are not sure we do, America is to be understood to have this right and responsibility to lead because of some combination of its power and its principles, and it would appear that its power in some way and some degree flows from its principles.  The happy reflection occurs to us that America’s principles are more broadly shared today than when they were declared over two and a quarter centuries ago to the world of hereditary monarchs and aristocracies of Europe.  Regimes of political and economic freedom like America’s have become the practice in many places around the world.  If our principles confer a right to lead, then wouldn’t many other nations have that right as well?

But, it might be said, these other nations do not have our power.  It is our power, then, that uniquely qualifies us to lead.  Does this not come uncomfortably close to the distasteful claim that might makes right?  What could be further from our principles?  This is a claim for bullies and tyrants, not for a free people. 

Our power and principles cannot be separated, it might be argued.  We are most powerful when we are most principled, and the unique combination of our power and principles makes us uniquely fit to lead.  There is surely something appealing—and true!—in the idea that “right makes might.” When Americans appealed in 1776 “to the supreme judge of the world for the rectitude of our intentions,” we were acknowledging that our justice would be an ally in our struggle for independence and in all else we could hope to do as a nation. But everyone knows that adherence to principle can also be costly, that it can and often does, therefore, decrease one’s power and may even take one’s life.  Adherence to principle despite the cost is noble, but nobility is not the same as power.  We are most noble, perhaps, but not necessarily most powerful, when we are most principled.

There is another way in which adherence to our principles makes us less powerful, at least relatively.  The most fundamental principle of our politics is the idea of human equality. From this principle we derive our commitment to human freedom.  Human freedom, political and economic, leads in turn to greater wealth and, to the extent that wealth is power, to greater power.  As our principles become more widely shared around the world—our constant hope—others will become more wealthy and powerful, too.  So, the more widely our principles spread, the more our power will decline relative to others, diminishing our capacity to lead. 

The notion that America has a unique right and responsibility to lead the rest of the world thus seems in various ways to be factually problematic; seems to tend toward the unwelcome view that might makes right; and seems at best confused or disheartening about the relationship between power and principle. One cannot help thinking that, under the constant and almost irresistible pressure to say something, our nation’s spokesmen have spoken on this subject more from reflex than reflection.  It is always regrettable when those who should be refining the public views muddy the waters a bit instead. But the reflex was understandable, arising as it seems to do from an idea, if a confused idea, of an age old American theme—the theme of American exceptionalism, which we will take up in earnest in our next letter.   

Ohio Farmer

Political Success and Governmental Failure

To the Members of the 112^th Congress:

In his first debate with Stephen Douglas in 1858, Abraham Lincoln said, "In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed."

Seven score and 13 years after those debates we are now engaged in a great political contest over whether the welfare state established by the New Deal and built up continuously since 1932 can long endure. Its growth over the past eight decades and the financial crisis confronting it today suggest the need to qualify Lincoln’s rule: Public sentiment may ensure political success for a policy, but it does not rule out governmental failure.  Indeed, a policy can be a governmental failure precisely because it is a political success.

It is our pride as Americans that our government must answer to our consent. If we insist on consenting to bad government, it will be very hard for a democratic government to be good. When Lincoln was speaking of public sentiment, he knew that it was a public he had to persuade to do the right thing, a public with many strong inclinations to do the wrong thing. His point was that this is the most important job a politician has in a democracy—to persuade the people to do the right thing.

In a New York Times public opinion poll last year, 76 percent of all respondents agreed that “the benefits from government programs such as Social Security and Medicare [are] worth the costs of those programs.”  Even 62 percent of those who said they support the “tea party” movement thought so!  It’s hardly a surprise that public sentiment supports these programs, the mainstays of our welfare state.

The governmental problem is that the benefits of these programs are not only worth what they cost, but worth far more than they cost.  According to a recent study, a husband and wife, each born in 1915 and each earning the average wage during their working years, would have retired in 1980 having paid a total of $190,000 in Social Security taxes and $15,600 in Medicare taxes.  That couple could expect to receive, on average, $446,000 in Social Security benefits and $132,000 in Medicare benefits.  Depending on health and longevity, some couples received more and some less but the average benefits from the two programs would have totaled $578,000.

We shouldn’t be surprised that government programs become highly popular when, in effect, they hand out $372,400 checks rather than gold watches to new retirees. Being popular isn’t the same as being sustainable, however, and the popularity of Social Security and Medicare has gone a long way to help them become unsustainable.  The New Deal’s architects and advocates believed that rapid economic and population growth would make it possible to perpetuate social insurance programs’ large windfalls.  There’s no prospect, however, for the economic growth that would allow the federal government to pay out in the first half of the 21st century the kind of social insurance benefits that Americans came to expect in the second half of the 20th.  And as to population, everyone knows that people these days are having fewer children or, in many more cases now than in the past, none at all. As a result, we see the formation of a demographic bulge, with a disproportionately large number of older people receiving benefits from social insurance programs and a disproportionately small number of younger people paying taxes to finance those benefits.

We have no choice, then, but to address the financial imbalances built into our welfare state. The Democratic Party, defined since 1932 by championing the cause of an ever-larger welfare state, wants government spending to be the independent variable that determines tax levels.  The Republican Party, home to New Deal opponents in the 1930s and New Deal skeptics ever since, wants government spending to be the dependent variable determined by taxes.  Democrats hope that when push comes to shove, and we can no longer borrow our way out of the welfare state’s rickety financing, the people will come to the conclusion that large reductions in welfare state benefits are unthinkable, and they will support the large, widely applied tax increases that will certainly be needed to continue and expand our social insurance programs. Republicans have the opposite hope—that when voters come to realize the size of the tax increases needed to sustain our welfare state they will, at long last, be amenable to the kind of big reductions in government spending that have been ballot box losers for nearly a century.

America’s welfare state has grown for the past 80 years because people like its benefits.  There are two reasons it hasn’t grown even faster.  The lesser one is that people had some qualms, now largely forgotten, about the legitimacy of having the government redistribute wealth from some people to others.  The more politically consequential reason is that people like getting what the welfare state provides much more than they like paying for what it costs.

The Democratic Party has worked hard for many years to reassure people that generous welfare state benefits really are compatible with modest taxes, or ones that only very rich people and large corporations will have to worry about. There are two problems with this reassurance. First, it’s not true: a welfare state like the comprehensive ones in most European countries requires the kind of heavy, widely applied taxes common in Europe. Second, the fact that Democrats have always gravitated to the far-fetched argument that we can have New York’s social welfare system and South Dakota’s taxes suggests they’re afraid that most Americans won’t vote for the comprehensive welfare state Democrats advocate if the price is shown in big print on the first page, rather than buried in a footnote. Those fears form the foundation of the Republicans’ hopes that the welfare state we’ll end up with—if its costs are honestly reckoned and realistically shared—will be much smaller (and much smarter) than the one we have now.

We Americans celebrate our capacity to govern ourselves. Here certainly is a test of our capacity. The government can’t solve this problem without the help of the people, because the right government can’t get elected unless we the people are wise enough to elect those who are committed to make the choices that are necessary. Are we? Can we be persuaded to be?

Ohio Farmer

The Lost Art of Legislation

To the Members of the 112^th Congress:

One of the head-scratching moments of the congressional debate leading up to the passage last year of the Patient Protection and Affordable Care Act (otherwise known as “Obamacare”) was then-House Speaker Nancy Pelosi’s response when asked about the contents of the 2,000-page draft law [see Ohio Farmer Letter, "Reconstitutionalizing America"].  You recall that Speaker Pelosi said, “We have to pass the bill so you can see what’s in it.”  She was not alone with this thought.  Senator Max Baucus, chairman of the Senate Finance Committee that had key jurisdiction over the health care bill, said something similar: “I don’t think you want me to waste my time to read every page of the health care bill. You know why? It’s statutory language.  We hire experts.”

Both comments generated considerable ridicule, especially from people who opposed the legislation.  But both comments bring to light a fundamental fact of modern American government: Congress no longer “legislates” (that is, passes binding universal laws) in the way the Founders intended when they wrote the Constitution.  Instead, Congress passes general statutes containing policy goals, but delegates the power to write the actual operating laws to executive branch administrators and independent agencies.  In practical terms, this means that the executive branch and independent administrative agencies, rather than Congress, actually determine the details—the real law as it will operate on citizens.  This might be acceptable except that the process of administrative government is increasingly arbitrary, and arbitrary government is the very definition of lawlessness. 

Some short sections of the health care law will require hundreds of pages of detailed regulations, which administrative experts are going to spend the next several years working out.  Sen. Baucus is right: the statutory language does not tell you how the law will operate in practice.  The 2,000 page statute will grow to perhaps 30,000 pages by the time the administrative agencies finish filling in the blanks.  Here is another wrinkle: the health care law shows that Congress is now passing “laws” that cannot take effect as written, because they are so woefully incomplete.

Two recent news items highlight this problem.  First, the health care law contains a number of mandates on insurance companies and businesses intended to correct what are widely regarded as abuses of the private marketplace for insurance and health services.  Yet the Department of Health and Human Services is handing out “waivers”—exemptions from the letter of the law—like Halloween candy to labor unions, big businesses (McDonald’s), small businesses (boutique restaurants in San Francisco), and several of the large insurance companies who are thought to be part of the problem.  The health care law’s waiver process is like telling the traffic police that they get to set a “safe” speed limit, but then allowing them to decide that different motorists get to drive at different speeds.  We’re no longer equal under the law when a government administrator can decide who has to obey a law and who doesn’t.  Prior to this moment, federal government waivers tended to be applied only to state and local governments in their implementation of federally-funded programs like welfare or highway construction or public education.  Now the government is extending waivers to private citizens and their businesses, treating equal people unequally.

The second news item ringing alarm bells is the decision of the National Labor Relations Board (NLRB) ordering the Boeing aircraft company to build its new Dreamliner airplane in Washington state, rather than South Carolina, where Boeing has already spent over $1 billion building a new assembly line for the Dreamliner [see Ohio Farmer Letter, "The Spirit of Checks and Balances"].  The NLRB based its decision on a clause in the Wagner Act that says private companies may not “retaliate” against labor unions, and argues that locating aircraft production in a non-union state amounts to “retaliation” against the unions that have struck Boeing three times in the last decade in Washington state.  The “retaliation” clause has never been interpreted this way before; and, in any case, we should be asking why an independent agency—the NLRB—gets to enforce the law, rather than the Justice Department, an executive department politically accountable to the President, working through the ordinary federal court system.   The NLRB was set up to provide labor unions a privileged position in our legal order, but it means that any company might be prohibited from moving or expanding from a unionized state to a right-to-work state.  It is doubtful Congress meant the statute to be construed this way when it was passed, or that any Congress would consent to such a construction.  As a practical matter the Boeing case is likely to be isolated, but that just makes the Boeing precedent all the more troubling, as it reveals our labor law to be arbitrary.  And the NLRB is hardly alone in this style of unaccountable government that blurs the separation of powers between the branches.  The Environmental Protection Agency operates in a similar fashion, and the new financial regulations of the Dodd-Frank law passed in response to the banking crisis of 2008 will also be determined by the administrative organs of government.

It may be necessary for Congress to delegate the working out of many details to administrative agencies.  But this practice has come with the high cost of degrading the deliberative function of Congress’s lawmaking power.  The easy delegation of the details is why many large laws are rushed to passage in a less than transparent manner.  True debate and deliberation has atrophied.  This slow abdication of legislative responsibility on the part of Congress started many decades ago, and is no simple matter to fix.  As a general principle members of Congress ought to refuse to vote for statutes that delegate large amounts of the real lawmaking to another branch.  If the health care law’s perverse consequences (such as the possibility that, without a waiver, McDonald’s would have had to drop health insurance for all its employees) were laid at the feet of Congress, then Congress would write laws more carefully, or move more quickly to amend them as they should.  In one word, is this not a good occasion for Congress to assume more responsibility for its actions?

Ohio Farmer

The Spirit of Checks and Balances

To the Members of the 112th Congress:

Senator Harry Reid of Nevada recently stated that the National Labor Relations Board, the regulatory agency established by the 1935 National Labor Relations Act, was “created in the same spirit of checks and balances” as the U.S. Constitution itself. NLRB “acts as a check on employers and employees alike,” said Reid. “It safeguards employees’ rights to unionize or not to unionize, if they so choose, it mediates allegations of unfair labor practices, and it does all this independent of any outside influence.”

Reid was defending NLRB’s decision to issue a complaint against Boeing, the aircraft manufacturer, for opening a new production facility in South Carolina to produce its latest commercial aircraft, the 787 “Dreamliner.” The NLRB filed its complaint, which is similar to an indictment in criminal court, because its acting general counsel contends that the company decided to open the South Carolina plant in order to threaten the International Association of Machinists, the union representing workers at Boeing’s 787 plant in Seattle, Washington.

The reasoning is that Boeing was attempting to punish IAM for going out on strike in the past, and intimidate it from going out on strike in the future, by opening a new facility to produce the 787 in a state where only 2.8% of private-sector employees are union members. Such an action, the complaint alleges, unlawfully discriminates against those Seattle workers represented by the union. Demonstrating a nice gift for irony, NLRB insists that it does not seek to prohibit Boeing from running its South Carolina factory, only to prevent the company from illegally intimidating IAM. The NLRB remedy, however, is to require Boeing to open and operate a second, unionized 787 factory in Seattle – one that would, of course, turn the non-unionized plant in South Carolina into a hugely expensive redundancy.

Reid’s argument could be considered a faint, though distorted, echo of the assertion in Federalist 51 that the Constitution’s “policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” In classical economic thought, of course, the defect of better motives in private affairs is supplied when individuals seeking their own benefit wind up inadvertently improving the lives of others by offering goods and services that are of higher quality or sold at lower prices than those provided by their competitors. As Adam Smith wrote in The Wealth of Nations, “It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our necessities but of their advantages.”

When he suggests that it is a logical extension of the American founding to have a government agency tell a company where it may and must locate its factories and offices, Reid is reflecting the New Deal idea that market competition was no longer a sufficient restraint on powerful industrial enterprises. The economist John Kenneth Galbraith argued for the same view in American Capitalism: regulatory agencies and labor unions imparted to our economic system the benefits of “countervailing power.” Such entities would offset the dominance of giant corporations in markets that were, Galbraith argued, theoretically but not effectively free.

Galbraith and Reid notwithstanding, for a federal agency to lay the groundwork to order a private company to build its products here and not there is contrary to, not consistent with, the logic of the American founding. For one thing, the Constitution protects both the ability of the individual states to govern their internal affairs, and the free flow of commerce between the states. States are prohibited, for example, from levying duties on goods “imported” from other states of the Union. The Constitution was, in this sense, the original North American Free Trade Agreement.

When Congress amended the National Labor Relations Act in 1947, it explicitly authorized state governments to enact “right-to-work” laws, which stipulate that private employers may not fire employees who refuse to join a union or pay union dues. Since a labor union is a kind of cartel, where sellers of labor agree not to compete against one another, right-to-work laws have generally had the intended effect of preventing unions from forming and growing. Since 1947, twenty-two states, including South Carolina but not Washington, have enacted such laws.

Since right-to-work provisions are legal, and the free flow of commerce between states is constitutional, it’s hard to see how the NLRB’s proposed course of action can be wise. If the agency winds up forcing Boeing to build production facilities in Washington, when the company would rather build them in South Carolina, it will nullify Boeing’s right to choose how to run its business, and South Carolina’s right to choose how to run its state.

There are other problems with Reid’s position. Although the Constitution states, “All legislative powers herein granted shall be vested in a Congress of the United States,” Reid means to restrain Congress when he describes NLRB, an entity created by Congress, as an agency that does its work “independent of any outside influence.” The outside influence he resents is Congress itself, or at least its Republican members. For Republicans in Congress to object to NLRB’s course of action concerning Boeing is “inappropriate … disgraceful and dangerous.”

Reid does not, apparently, have a gift for irony. He is outraged that elected members of Congress are objecting to an NLRB inspector bringing a complaint about the violation of NLRB rules before an NLRB administrative law judge – because of the threat such political “interference” poses to the “spirit of checks and balances.” The genius of the Constitution was to separate legislative, executive, and judicial powers. The genius of the New Deal was to combine them in agencies whose employees and friends want to keep them independent from – politics. Independent, that is, of democratic self-government. Independent, in other words, from the people.

“Which Side Are You On?” asks the anthem of the American labor movement. We know which side Harry Reid is on, and it isn’t James Madison’s.

Ohio Farmer

The Commerce Clause

To the Members of the 112^th Congress: 

Are there any limits, in principle, remaining on federal power in America?  We have seen in these letters that there are elected and appointed officials and citizens in the country who would answer, for all practical purposes: “No.” We have also seen that the question is not closed and that it is not just for lawyers or judges to decide; it belongs to all the people, and to all three branches of government.  Let us reflect on one path our nation took that, over the course of a couple of generations, made assertions of unlimited federal power commonplace in America; and let us consider some recent decisions by the courts that remind us that the constitutional conversation is not over. 

Much of the current debate over federal authority (including the lawsuit over the Patient Protection and Affordable Care Act—PPACA or Obamacare) turns on how much power Congress has under the Commerce Clause, which states that “Congress shall have Power to . . . regulate Commerce . . . among the several States.”  The Founders inserted the Commerce Clause into the Constitution to correct a deficiency in the Articles of Confederation, which led states to impose duties on goods from other states, or goods which traveled through their states.  James Madison lamented that, in some cases, it was cheaper to buy goods from Great Britain than from a neighboring state given the taxes and duties that the states were placing on the goods.  The Commerce Clause was intended to give Congress the authority to facilitate the free flow of goods among the states. 

In the late 19^th and early 20th century, states began to regulate areas like working conditions, hours, and crop production and pricing, but Progressives argued that federal regulation was necessary to bring about more reforms.  Many of these policies enjoyed (and continue to enjoy) some measure of popular support. But there was a problem for those who wished to implement the policies at the federal level: the Constitution provided no general authority to regulate businesses.  And so, Progressives and New Dealers in Congress and the White House turned to the Commerce Clause.   

For a time, Progressives and New Dealers were politically successful in promoting their agenda in Congress and the White House, but they had less success in the courts, which found that, while Congress had authority to regulate some local activities that affected interstate commerce, the authority was limited. With retirements, replacements, and threats of court packing, the Court’s position changed over time.  By 1942, the Court decided a case in a way that many believed spelled the end of any limitation on federal authority.  In Wickard v. Filburn, the Court found that the federal government could regulate wheat grown by a farmer for personal consumption under the theory that such local activity, when aggregated, could substantially affect interstate commerce.  

After Wickard, Congress passed innumerable regulations covering business and non-business activity alike based upon the Commerce Clause and the theory that, when aggregated, just about any activity could substantially affect commerce.  Over the course of decades, presidents of both parties signed legislation based upon expanding notions of federal authority, and on the popularity of the underlying legislative policy, and the courts acceded to the enterprise. But the constitutional conversation continued. In the mid-1990s, the Supreme Court struck down the Gun Free School Zones Act, finding that the federal government does not have a general police power to regulate the non-economic act of carrying a gun in a school zone.  Next, the Court struck down a provision of the Violence Against Women Act (VAWA), which permitted individuals to sue their alleged attackers for gender motivated violence.  The Court again found that non-economic violent actions could not be aggregated to establish a substantial connection to interstate commerce. 

Both of these bills were popular, passing Congress with overwhelming majorities.  And why not? Very few would argue in the abstract against banning guns at schools or prohibiting gender-motivated violence.  Given the popularity of the legislation, the Court’s decisions were first widely attacked, but over time they began to receive acceptance in quarters where few expected it. A constitutional conversation was kindled, between the branches—and among the people. Some feminists, for example, who chastised the Court for striking down VAWA, recognized that they did not like the idea of a federal government with unrestricted regulatory authority over their lives.  Citizens and their representatives began to talk not merely about whether the policy objectives sought by Congress were desirable, but whether the federal government was empowered to act in that sphere at all. 

Which brings us back to Obamacare.  Is it bad policy?  That is a very important question. But whatever we might think about that, let us not fail to give our full and best attention to the separate and even more important question: Is it constitutional?  Even the courts that have upheld the act have recognized that there is something unprecedented at play.  Never before has Congress ordered citizens to buy something, and penalized them for failing to do so. If this is permitted, what are the limits? Congress doesn’t have the power to pass any law it wants; it has the powers given to it by the American people through our Constitution—nothing less, but also nothing more. Limits matter. A law based on the assumption that the commerce power is unlimited violates the basic principle of constitutional self-government.

What limits are there to federal authority? This should be the focus of our constitutional conversation.

Ohio Farmer

A Decent Respect

To the Members of the 112^th Congress:

Following the killing of Osama bin Laden on the orders of the President of the United States, some prominent European politicians, clerics, and journalists condemned the act. Americans, many of whom continue publicly to applaud bin Laden’s death, were likened to “Muslims celebrating in the Gaza Strip” following the attacks on America on September 11, 2001. What should Americans think of such criticisms? How, more generally, should we regard the opinions of the peoples and governments of other nations?

To take the second question first, the natural American place to begin a response seems to be with the Declaration that announced our independence to the world in 1776, a declaration that was offered out of “a decent respect to the opinions of mankind,” which “requires that [Americans] should declare the causes which impel them to the separation [from Great Britain].” Declaring the causes of our actions—giving reasons for them—was an act of respect for the opinions of mankind because it treated mankind as if their opinions could respond to reasons. This was a hopeful view of the human condition. It did honor to human nature and imposed expectations on human capacities.

The central idea proclaimed in the declaration—the main reason for our action—was the self evident truth that “all men are created equal,” that is, that all men everywhere and at all times possess by nature equal rights to life, liberty, and the pursuit of happiness. Of course, this was an idea that seemed self-evidently untrue to the hereditary monarchs and nobility of Europe. So America showed its first respect for the opinions of mankind by disagreeing with most of them!—and in the same breath telling the peoples of the world how they might show greater respect for themselves, by recognizing and asserting the rights of their own humanity. 

Americans were keenly aware how difficult it would be to live up to the principle they were proclaiming—how heroic and continuous an effort would be required of themselves or any people that aspired to rise to equality. This very difficulty is partly what makes it such an “honorable determination  . . . to rest all our political experiments on the capacity of mankind for self-government.”  As I have written in an earlier letter, “Any people that wished to be free, including the Americans, would have to demonstrate this capacity for themselves, and continue to demonstrate it each generation.”  What could be more honorable to human nature? What could show greater respect to mankind and their opinions?

The American experiment claims to be a glorious experiment because it aims, for the first time in human history, to make actual the potential for self government that we Americans insist human beings have by nature. This is what the founders meant when they soberly—and by no means arrogantly—reflected on the fact that it seems to have been reserved to “the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice.”

The greatest respect Americans can show for the opinions of mankind is to take responsibility for being the kind of self governing people we invite all people to be. Taking such responsibility may require, in the sometimes hard course of human events, the killing of the bin Ladens of this world. As I said in my last letter, our men who killed bin Laden were “armed above all with the authority of the people of the United States.  That is what dignified their violence and distinguished it from the brutality authored by their target.” How can the “authority of the people”—us—dignify such an act, raise it above the barbarism and savagery of bin Laden and all who support him and cheer him on? Only, I think, if “we the people” are the people we claimed to be, insisted on being, at our beginning—a people claiming the right to govern ourselves, as we proclaim and respect the same right for all other human beings; a people doing everything in our power to cultivate in ourselves the capacities necessary to vindicate this natural human right.  

Such a people will conduct themselves so that an attack upon them could never in truth be said to be a blessing to mankind; so that if they are compelled to some harsh measure like the killing of bin Laden, the world may truly be said to be better off because of it.  Such a people will arrange the political affairs of their land so that no one could with justice wish for the displacement of their rule by that of an enemy.  They will be neither self-aggrandizing nor self-sacrificing.  They will approach the world, in Washington’s words, as their "interest, guided by justice, shall counsel."

Such a people will understand that politics, though it must sometimes resort to harsh necessities like the killing of bin Ladens, is in the final analysis not reducible to such necessities.  Even Sun Tzu, that great teacher of the art of war, understood that "[t]hose who excel in war [must] first cultivate their own humanity and justice," that war is conducted ultimately for the sake of peace.  Closer to home, our own John Adams offered his American version of that human wisdom, when he reflected , “I must study Politicks and War that my sons may have liberty to study Mathematicks and Philosophy.” The successful practice of the arts of necessity—which are forced upon us by the needs of mere life—seems to be a necessary condition for the flourishing of the arts of freedom—which we pursue because they prepare us to deserve, by using well, "the blessings of liberty."

What about the more particular question, about American rejoicings at the killing of bin Laden? Of course, no self-respecting, self-governing people will condone dancing in the street to celebrate cruel necessities. Nor would it be a proud moment for such a people to make these cruel necessities applause lines in campaign rallies. But only a good people—a people able to take responsibility for choosing right over wrong—can be a self-governing people, and the world will be a sad place when good people can no longer rejoice at the triumph, however small and incomplete, of good over evil.

Ohio Farmer

Our Justice

To the Members of the 112^th Congress:

The attackers would come out of the forest, sweeping across a settlement or isolated homestead, killing and burning as they went.  Depending on their strength, the attackers might move far into settled territory or simply withdraw after the destruction of one settler family.  But sooner or later they would disappear into the wilderness from which they had come. 

The settlers fortified their homes and formed militias to defend themselves.  But the attackers struck without warning and, if they withdrew quickly, could avoid the organized defense of the settlers.  It became necessary, then, to attack the attackers.  They seldom stood and fought in the European way.  They preferred ambush and skirmish, so the settlers fought this way too.  They also attacked their enemy’s settlements, destroying crops and inhabitants, old and young, male and female.  Sometimes the enemy could be found not too far away.  Other times it was necessary to track them deep into the wilderness.

This was a brutal business, not the almost gentlemanly endeavor that organized eighteenth-century warfare aspired to.  Its necessity did not disguise its brutality or even excuse all instances of it.     

This kind of fighting began shortly after the founding of the first settlements and continued episodically for 100 years or so after the founding of the nation.  That such fighting was part of the American experience and has become part of it again can tell us something about “who we are,” a phrase President Obama has used more than once when discussing the killing of bin Laden. 

First, those in frontier settlements open to attack had an immediate experience of perhaps the most basic account we offer of ourselves.  We join together for our common defense and common good, since no individual or single family is alone sufficient to achieve such ends.  The frontier militia consisting of all able-bodied men was a direct expression of this idea, embodying in a more effective form the right of every individual to self-defense.  More broadly, we hold, all legitimate government rests on the same idea.  The government has only the authority that we give it.

Much has changed in the more than 200 years since the founding of the United States, but this elemental idea about the relationship of citizens to their government has not changed.   Those who killed bin Laden carried weapons but were armed above all with the authority of the people of the United States.  That is what dignified their violence and distinguished it from the brutality authored by their target.

The killing of bin Laden was not only authorized; it was also just.  It may turn out that bin Laden was still involved in active plotting against the United States.  If so, his killing was an act of self-defense, no less necessary and just than the raids Americans carried out against their enemies in the forested wilderness long ago. 

But whether or not bin Laden was plotting against us, his death was still just.  It was an act of revenge; and revenge, giving someone what he deserves, is a form of justice.  We may hope that bin Laden’s death will discourage others from continuing his work, but that was not the point of killing bin Laden.  Revenge, even more than self-defense, is an assertion of self-worth.  Its principal audience is not those on whom vengeance falls, but those in whose name vengeance is carried out.  It is their statement above all to themselves that they are not the sort to be affronted or assaulted.  “The world is what it is,” the poet has written, “and those who are nothing or allow themselves to become nothing have no place in it.”  Those who take revenge testify that they are something rather than nothing.  The more dogged and unrelenting the pursuit in the wilderness, the more spectacular its culmination, the greater is the testimony of who they are. 

The good of revenge requires something more elemental still.  Taking revenge takes courage.  It took courage to authorize the attack.  It took courage to carry it out.  Courage is perhaps the most elemental virtue but without it, there can be no others.  It is what holds an individual as well as a nation together in the face of life’s dangers.  Done in our name, with our authority, the killing of bin Laden should encourage us for the dangers we yet face.

Ohio Farmer

The Course of Human Events

To the Members of the 112^th Congress:

How endlessly interesting and full of surprises is the course of human events. For the past two weeks, in hundreds of Congressional districts throughout the 50 states, we citizens witnessed lawmakers of both parties, on recess, engaging their constituents in conversations about the nation’s business in town hall meetings and other forums. The President was hosting his own town hall meetings, from Virginia to Facebook headquarters in California, and conducting interviews with local television stations in cities across the country. The central issue was the budget of the United States Government for the fiscal year 2012, and the conversation was shaped primarily by two competing proposals for that budget, the one put forward by President Obama on February 14, the other put forward in early April by the House Budget Committee chaired by Representative Paul Ryan (R-Wis.) and approved by the House on April 15. In light of the country’s debt and deficit crises, barring surprises in the course of human events, this looked likely to be the big issue of the coming months, leading up to the 2012 elections.

The issue is urgent and complicated (to say the least!) and the conversations were lively. For the most part, they seemed like a healthy spectacle of James Madison’s extended republic at work: a wide variety of contending interests and opinions jostling with one another in a robust American way, from which one might reasonably hope that eventually the “cool and deliberate sense” of the community would make some progress toward the public good.  Certainly—you not being angels, and this being free, democratic politics—one could witness displays among the lawmakers of what Publius called “talents for low intrigue and the little arts of popularity.” I needn’t name names here, and can put it down to an excess of zeal to please us, the people. And as for us citizens, in more than one instance, unfortunately, some of us became so animated that we had to be removed from the premises by the police.  In fairness to the parties involved in these cases, those who had to be removed seemed to be on one side of the issue. But similar behavior, certainly, could be attributed to those on the other side on other occasions. We are, after all, “the people,” and no more angelic than our elected representatives, and sometimes our democratic behavior does not reflect very well on our human nature.

One of the hopes of these letters is to connect our contemporary political conversation with the tradition of American political discourse that has enriched our politics for over two centuries. In this instance, it may be helpful to observe that, by our less than angelic behavior, we merely confirm Publius’s observation, that in “cases of great national discussion” we should not be surprised if a “torrent of angry and malignant passions will be let loose,” or that the opposing parties “mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.”  

Maybe our political passions will be calmed somewhat by the wise and beautiful lessons of moderation offered by Alexander Hamilton (a man himself perhaps not always moderate) in Federalist 1: 

So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists.

James Madison adds his own moderating wisdom in Federalist 37:

It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it.

Our civic moderation might be further strengthened by the reminder we received on Sunday night that, whatever the lively differences among ourselves in our pursuit of happiness, we are at war—and have been ever since that surprising turn in the course of human events on September 11, 2001.  Whatever our differences, we join past generations of Americans, going back to the Revolutionary generation, in mutually pledging to one another "our lives, our fortunes, and our sacred honor." The sacrifices of many patriots teach us constantly that this is no vagrant commitment, that there is some enduring thing in our country for the sake of which Americans make such a pledge, generation after generation, each to all and all to each. They teach us to summon the better angels of our nature to our national conversations as we pursue our happiness in freedom.

A young Abraham Lincoln instructed a group of high school students over 170 years ago that "[w]e find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us." Like Lincoln, our generation of Americans inherited these blessings of liberty. There is no greater earthly bequest we can have received. It is our greatest duty and our highest honor as Americans to pass on this inheritance unimpaired—indeed, strengthened and improved in every way possible, to our children. This seems to me to be what our great national conversation is about.  Let’s rise to the seriousness of the question. 

Ohio Farmer

A Republic If We Can Keep It

To the Members of the 112^th Congress:

That America is emphatically an “experiment” in self government is a prominent theme of these letters. It is a noble experiment. We are honorably determined to stake the fate of our country on the capacity of Americans to govern themselves, knowing full well that this capacity is a rare and difficult thing for human beings to achieve and maintain. The capacity to govern ourselves is the capacity to set reasonable limits for ourselves. Our greatest act of self government in this sense was the act by which “we, the people” submitted our sovereign power to the Constitution, which is at once our creation and the Supreme Law over us.  We have seen in earlier letters various ways in which the Progressive project—which produced the New Deal, the Great Society, and their contemporary successors—aims to replace the Constitution with a “living constitution,” removing in principle all limits on what government might do or how it might do it. This has been the great challenge to self government for the past century. It remains the great challenge for us. It has not been, and it will not be, easy to meet it.

In his speech on April 13 at George Washington University, President Obama explained in his own way why this is the case. “You see,” he said, by way of explaining America’s deficit problem, “most Americans tend to dislike government spending in the abstract, but like the stuff that it buys.” Here, I think, the President is saying essentially what former Speaker of the House of Representatives, Thomas P. “Tip” O’Neill, meant by his most quoted maxim: “All politics is local.” The Progressive agenda counts on the fact that we Americans like the stuff government spending buys, just as Tip O’Neill counted on all politics being local. 

Whenever it was that O’Neill uttered that nugget, he was speaking as a politician, not a political scientist.  A Democrat who won his first election—to the Massachusetts legislature—in 1936, the year voters endorsed the New Deal by overwhelmingly reelecting President Franklin Roosevelt, O’Neill won his last election—to a 17th term in Congress—in 1984, the year Ronald Reagan won his landslide reelection by challenging the propriety and feasibility of continuing the New Deal’s commitment to activist government.  In saying that all politics was local, O’Neill was pushing back against Reaganism, insisting that even if Americans had become dubious about activist government in general, they were still good New Dealers when it came to the particular benefits their own towns and neighborhoods could receive from government programs.  Like Tip O’Neill, President Obama thinks—and not without reason—that Americans will be good New Dealers when push comes to shove. They will like the “stuff” they can get from government so much that, despite their self governing inclinations, they will not be able to resist making themselves more and more dependent on government. 

Reagan and O’Neill, the two antagonists of the 1980s, fought to a draw.  Government spending on social programs grew more slowly under Reagan than under any other modern president, but he was never able to make good on the promise, announced in his first inaugural address, “to curb the size and influence of the Federal establishment.”  At the same time, the nation remained so wary of government’s ambitions that two years after O’Neill’s death a Democratic president, at the start of his own reelection campaign, found it necessary to declare, “The era of big government is over.” 

This political ambivalence, in which Americans have been constitutionalists in principle but Progressives in practice (recognizing the dangers of unlimited government in the abstract, but liking “the stuff that it buys”) has been durable, but there are signs it is becoming untenable.  At the “local” level, the New York Times reported last year that many bond market experts “fear that as states struggle with their growing debts, investors could decide not to buy the debt of the weakest state or local governments,” which “would force a crisis, since states cannot operate if they cannot borrow.”  The crisis seems most formidable in states like California, Illinois, New Jersey and New York—“blue” states, where big government remains very popular.  

At the national level, we read of numbers that tend to numb the minds of even the most public-spirited citizens: the Congressional Budget Office recently forecast that the path charted in President Obama’s 2012 budget would require the federal government to borrow $9.5 trillion over the next ten years.  Federal government debt held by the public equaled 36% of the U.S. Gross Domestic Product in 2007, before the recession began, and 62% of GDP in 2010.  By 2021 (just ten years from now), according to the CBO’s scenario, it will equal 87% of GDP, $20.8 trillion, a level most economists believe would be debilitating, especially since the forces increasing federal deficits are likely to be even stronger in the third decade of this century than in the second.  To cite just one problem, CBO projects interest payments on the national debt will rise from 1.7% of GDP in 2012 to 3.9% in 2021, by which time they will exceed $900 billion per year. That’s just the interest, as the President reminded us. 

It will not be easy for Americans to be constitutionalists in theory and Progressives in practice if our elected government cannot pay its bills.  If the lenders it depends on grow deeply skeptical about its ability to raise taxes or control spending, they will refuse to buy government bonds.  (The manager of the world’s largest bond fund recently reduced the percentage of its holdings in U.S. government-issued debt to zero.)  Less drastically, lenders will demand a costly interest premium to offset the risk of default by state and local governments, or of inflation sponsored by a federal government to reduce its debt by devaluing the currency.  At some point, the question becomes, not whether people like it when the government gives things to us and does things for us—as the President knows, both logic and experience demonstrate conclusively that we do—the crucial question becomes whether people like Progressive government’s endeavors enough to pay for them.  

If we don’t, if it becomes democratically impossible either to raise the taxes necessary to fund the government’s operations, or to reduce the scope of its activities to a level that can be accommodated by the taxes the people are willing to pay, then the Progressive project collapses.  The people will no longer mediate the disparity between what they demand from government and what they surrender to it.  Instead, decisive power over governance will pass to the lenders who keep public-sector operations afloat.   

Such a result would be a financial debacle.  The hard choices the people and their elected representatives now refuse to make will, in retrospect, be far easier than the policy changes an unsentimental bond market insists on as the price for further credit.  But the political failure will be even more deplorable.  In the well-known anecdote already recalled in these letters and sure to be noted again, Benjamin Franklin, upon being asked after the final meeting at Independence Hall in 1787 what kind of government the constitutional convention had fashioned, is supposed to have said, “A republic, if you can keep it.”  It is to America’s credit that we have kept the republic, and in many ways strengthened and improved it, for 224 years.  But we won’t be able to keep it for many more years if we do not return to our self governing ways. 

Ohio Farmer

"The Kind of Country We Believe In"

To the Members of the 112^th Congress:

On Wednesday last in his speech at George Washington University, President Obama observed that Americans are engaged in “one of the most important debates we can have.” It is specifically a debate about “the size and role of government,” but more generally, in the President’s words, it is about “the kind of country that we believe in.” He almost begins to sound like an Ohio Farmer!  But seriously, it seems to me that the President is right about this and that it behooves us to take him and his words seriously—and to expect him to take himself seriously.  This is not a time for sound bites and talking points, when words, as we all know is so often the case, are wielded as mere partisan weapons or are uttered to be forgotten.

The President tells us that he wants to “keep the dream of our founding alive” and “pass it on to our children.” He invites Americans to be “patriotic,” to have a “sense of responsibility—to each other and to our country.”  This all sounds pretty appealing—where is the debate? I think we find it in what the President means by this “sense of responsibility.”  

Americans, he says, have always “put faith in free markets and free enterprise”; “we are rugged individualists, a self-reliant people with a healthy skepticism of too much government.” Amen. But, he adds immediately, America is also a country with federal programs “which guarantee us health care and a measure of basic income after a lifetime of hard work . . . [protect] us against unexpected job loss . . . [and provide] care for millions of seniors in nursing homes, poor children, [and] those with disabilities.”  America, he takes great trouble to emphasize, “would not be a great country without these commitments.”

It is in these “commitments” that the President locates our “responsibility” as citizens. He would enlist our patriotism in upholding these commitments, without which he thinks America would not be great.  Here, to speak plainly, the President’s “vision for America” (as he calls it) departs radically and self-consciously from the Founders’ America and from all of American history until America was transformed by the New Deal and the Great Society beyond anything the Founders would recognize. In the President’s vision, it is the New Deal and the Great Society that made America great, made it the kind of country he believes in.

All Americans are aware that decent medical care, good jobs, comfortable homes, and college educations are widely desired, and that countries are generally regarded as successful when, like America, they manage to make such desired things widely available. But all Americans also know that the Founders never supposed that the federal government should “guarantee” these and countless other social and economic goods as “rights” or “entitlements.” It was the great triumph of the New Deal, extended by the Great Society, to establish these widely desired things as a new kind of rights—rights created by the state—as part of what Franklin Roosevelt called a “new constitutional order.”

None of these New Deal or Great Society “rights” was obtained by actually amending the Constitution. They were assertions of what Progressives think of as the “living constitution,” that is a constitution that is subject to continual change as leaders with “vision” see where the path of Progress leads. In this Progressive notion of a living constitution there is practically no limit to the “size and role of government.”  

So successful have the Progressives been that hardly anyone in either party batted a law-abiding eye at the constitutionally shocking financial bailouts and rewriting of the bankruptcy law in just the past few years. The very idea of the rule of law disappears in the shadow of the living constitution. This is why supporters of the President’s health care plan have reacted with stunned incredulity when asked where in the Constitution is the authority to enact such a plan.  This is also why it is a substantial—though very incomplete—political victory just to raise that question.  The great debate is between defenders of the Constitution and advocates of the living constitution, which renders the Constitution meaningless.  The question of the size and role of government will be decided by the more fundamental debate.

Since the President raises the subject, is it really these New Deal commitments that make America great?  Or would America enable itself to recover some of its greatness if it could free itself somewhat from the shackles of these commitments? These “commitments” teach an increasing number of Americans to wake every day looking to the federal government to take care of their basic needs and angrily resenting their country and their fellow citizens if they don’t get what they want in a hurry. President Obama invites us to celebrate this dependency as our greatness.  In his “vision,” the more power we give the federal government—the more Americans are made dependent on the federal government—the greater we are as a people and a country.  There is much willfulness in that vision. These Progressive “rights” and “entitlements” teach Americans, very successfully, to think of themselves as organized interests—according to their jobs, race, gender, age, infirmities, and so on—interest groups clamoring incessantly for government to use its power over other citizens to better secure the “rights” of the interests.  Is this a “sense of responsibility” that a great country could take pride in?

Ohio Farmer

A Republican Form of Government

To the Members of the 112^th Congress:

“The United States shall guarantee to every State in this Union a Republican Form of Government.” So asserts the fourth section of Article IV of the Constitution.   

The Supreme Court has had few occasions since 1789 to flesh out the meaning of that guarantee.  It is clear that the Constitution prohibits any state or locality from regressing to feudalism – no Duchess of the Dakotas or Count of Mount Kisco will exercise political power over Americans.  Beyond that, the Court said in 1849 that it was up to Congress, not the judiciary, to determine the criteria by which any state’s government could be deemed insufficiently republican. 

As is true of most questions before America’s officials and citizens, the Federalist Papers are invaluable to comprehending this matter of republicanism.  In Federalist 10, James Madison discusses the problem of faction, which he defines as “a number of citizens . . . 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.”  The “latent causes of faction” are “sown in the nature of man,” Madison warned, with the result that the “instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished.” 

Madison argued that the great danger was a faction comprising a majority of the electorate – whether united by a sectional, commercial, or religious interest – because it could operate democratically, winning a series of free and fair elections, even while disdaining the concerns and curtailing the rights of all citizens not belonging to that faction.  He was more sanguine about a faction comprising a minority of the citizenry, because, he thought, the majority would be able to “defeat its sinister views by regular vote,” rendering the faction “unable to execute and mask its violence under the forms of the Constitution.” 

Here Madison may have been too optimistic. The lessons of recent American politics suggest that minority factions can be more dangerous than he imagined.  The modern phenomenon he failed to anticipate was a government entrusted with so many responsibilities, and so much power and money, that it becomes a faction unto itself, with its own passions and interests adverse to the rights of other citizens.  Those in the control room have both the motive and means to steer the ship of state in directions advantageous to themselves, rather than ones preferred by the passengers who employ them.   

The number and complexity of the issues being managed by government, at all levels, reach a point where the regular vote of the majority no longer prevails against the government faction.  California, for example, boasts some 7,000 governmental entities – cities, counties, and “special purpose districts.” Even the most responsible voters cannot possibly keep up with the daily changing minutiae being managed by these agencies.  Americans who already have lives and jobs are not in a position to turn citizenship into a full time career. Among the respects in which all men are created equal is that everyone's week contains exactly 168 hours, regardless of how many public hearings your air quality management district schedules, or how many reports it makes available on its website. 

Government employees, protected by strong unions and formidable civil service rules, have become an especially powerful and, in many cases, especially dangerous faction.  In California, the power of those unions over one of the state’s political parties is practically irresistible.  And because they devote money and resources to low-turnout elections for school boards and transit districts, public employee unions have often been able to effect a travesty of collective bargaining – vigorous representation of their interests on both sides of the negotiating table.  The recent debate about public sector unions in Wisconsin, led one chagrined citizen to reflect, “It’s not democracy when citizens lose control over the pay and benefits of the people who work for them.” Madison would agree. 

Guaranteeing every state a republican form of government appears to be one of the Constitution’s less difficult assignments.  The harder part is to make sure that American government at every level is republican not just in form but in content.  Are the people’s elected representatives in charge of the government, or do life-tenured civil servants constitute a permanent government, one that can humor voters and legislators with token concessions, knowing it has all the expertise and time needed to out-maneuver and out-last intrusive voters and their representatives?  That is the constitutional question of our age. 

The fury and hysteria of the demonstrators opposed to the Wisconsin restrictions on public-employee unions inadvertently revealed the permanent government’s assumption that mere politicians elected by mere voters had no moral authority to challenge the public employees’ long-standing and cozy arrangements.  The ongoing debates over public unions in Wisconsin, Ohio, and several other states are about fiscal solvency but they concern, even more fundamentally, the future of the republican form of government in America.  We know from the relentless demonstrations in the streets of the Wisconsin city named after James Madison that the permanent government will go to great lengths to defend its prerogatives.  Will the citizenry do what is necessary to reclaim its sovereign control over the res publica – the matters that properly belong to the public? 

Ohio Farmer

America and the World

To the Members of the 112th Congress:

America, on the president’s orders, has intervened militarily in Libya; the president has given a speech explaining the intervention and the manner of it; the country and the world debate the matter as events unfold; the outcome remains uncertain.  In his speech, the president insisted that, because the Libyan people faced "the prospect of violence on a horrific scale," America had a responsibility to act. "To brush aside...our responsibilities to our fellow human beings under such circumstances would have been a betrayal of who we are.” 

These letters are particularly concerned with “who we are” as a people and what this requires of our politics, domestic and foreign. So I leave aside for now the many other interesting and important questions swirling around the president’s words and deeds, including his deference to the United Nations and his neglect of the United States Congress. 

What does “who we are” tell us about how we should act toward the rest of the world? The president doesn’t say much about what it is that makes us who we are, though he seems now to be affirming, on behalf of our fellow human beings, a kind of American exceptionalism, about which he had been studiously ambiguous in the past. We might begin to think about who we are by considering the two most important ideas in American political life.  The first is found in the Declaration of Independence, which was cited in the last letter and will surely be cited often in future letters—the idea that “all men are created equal.” The second is derived from this idea and is found in the opening phrase of the Constitution: it is the idea of consent expressed in the familiar words, “We the People of the United States.”  These are words and ideas, not to conjure with, but to consider carefully as events demand our attention and action at home and abroad. As long as Americans are Americans, these ideas will certainly continue to be essential ingredients of who we are. So what do they tell us about us? 

The immediate practical purpose of the Declaration was to establish the right of the colonists to separate from the British Empire and its hereditary monarchy.  In this case, declaring all men equal meant that God did not give one man or his family a divine right to rule other men.  Human equality meant that government derived its powers justly only from “the consent of the governed.”  The claim that men were equal meant that not the accident of birth but the deliberate consent of men—“We the People”— was the only rightful basis for government. 

The Declaration had a larger purpose, a broader reach, than the dispute between Great Britain and the United States of America.  Its declaration of human equality denied not only a right to rule based on birth but a right to rule based on race or religion.  Declaring all men equal meant that a common humanity was more fundamental than the accidents of race or religion that separated human beings.  

The universality of this founding principle explains something of the claim the world has on American sympathies.  Having based our national life on the equality of all men, we recognize that in principle any human being is a potential citizen of the United States. We feel an affinity with people around the world, especially those struggling for freedom or stricken by natural or manmade disasters.  In our common humanity, we believe somehow that our hopes and fortunes are tied to theirs.  These feelings can give rise to a sense of obligation that seems to be what President Obama has in mind—our “responsibilities to our fellow human beings,” which he invokes when he says it would be a betrayal of who we are if we didn’t intervene in the way he chose to do in Libya. 

But in fact, of course, only Americans are American citizens.  Our revolution began with a universal claim about human equality, but it culminated necessarily in the establishment of a particular nation.  “We the People of the United States” are distinct from the other peoples of the world not by birth, race, or religion, but by the deliberate act of establishing ourselves as a different people.  By this act of consent, the people of the United States committed themselves to each other, as distinct from all the others who live outside the bond of citizenship.  In a world where freedom was scarce and tyranny commonplace (a world, in this respect, very like the one in which we continue to abide), we committed ourselves to establishing our own freedom and preserving the blessings of liberty in the United States, not to assisting the democratic aspirations of others or their recovery from disaster, however sympathetic we may be to the plight of our fellow men and however eager we may be to help them. 

No model or mathematical formula can help us strike the proper balance between what we owe to our fellow men and what we owe to ourselves.  Such balance is a matter for judgment and deliberation, as circumstances arise.  This judgment will take into account the diverging claims of equality and consent, the former what Americans share with other peoples, the latter how we distinguished ourselves from them.  These two American principles temper each other as we deliberate about how we as a people should act in a dangerous world of potential fellow citizens. 

Our deliberations will be well served by reflecting that the American founders thought the best thing Americans could do for the rest of the world was to succeed in our own experiment in freedom. As the founders thought of it, the American cause—the cause of liberty— is the cause of mankind.  If we could show by the success of our experiment that free government could be good government, this would be the greatest gift Americans could give to their fellow human beings—our own political well being would be a constant act of philanthropy.  America’s success would be cause for all men to rejoice. By the same token, failure of the American experiment in freedom would “deserve to be considered as the general misfortune of mankind.”  

From this point of view, Americans should want to know how our intervention in Libya enhances the prospects of the American experiment. If it does, the world will be a better place. If it doesn’t, it betrays America’s primary responsibility to our fellow human beings.

Ohio Farmer

Capacities of Mankind

To the Members of the 112th Congress:

In recent weeks, the course of human events—from Tunisia, to Libya, to Egypt, to Syria—reminds Americans once again that tyranny is common in the world, that it is hard to remove, and that it is even harder to replace it with freedom and good government. We Americans, of every political stripe, generally like to consider ourselves enemies of tyranny and friends of freedom in the world. Of course, we have lots of debates among ourselves (and with others) about what this means and what this requires of American foreign policy. These debates have been rekindled lately, and I take this occasion to recollect that America came into existence by overthrowing a tyranny and that we have had our own struggles replacing it with freedom and good government.

Our success in these struggles—to the extent that we have met with success—is due to moral and political habits and dispositions that arise from principles that must be learned. These principles and dispositions are the most essential conditions of freedom. Everything else is secondary. Without them, you might exchange an unpopular for a popular tyranny, an incompetent and destitute tyranny for a competent and wealthy one. But you will never have free government.

America began its experiment in freedom with what has become and will forever remain the most characteristic and defining American affirmation:  “We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights.”  The truth of human equality and liberty was asserted against all tyrannies—whether of race, class, or religion, one, few, or many.

That men throughout history tyrannized one another in an infinite variety of ways was not proof to the American founders that human beings do not possess equal rights by nature—rather it was proof of how rare and difficult a thing it is to secure them.  It is proof of the philosophic rigor, the moral discipline, the political sagacity, and the beneficence of opportunity that are required for reflection and free choice to prevail over ignorance, prejudice, accident, and force.

Proclaiming that all men everywhere and at all times possess by nature equal rights to life, liberty, and the pursuit of happiness, the American founders undertook the historic effort to secure these rights, so far as they thought they could then be secured, to a small people at a particular place and time.  They were acutely conscious of the limits of their ability to secure these rights.  When they were able to establish a “more perfect union” they understood full well how far from perfection they remained.  It was all the new republic could do in the first century of its existence to keep the American experiment in freedom from failing miserably at home while other less fortunate experiments struggled to give birth to  freedom in other parts of the world.

In the course of its history, the American people have many times fallen beneath the high standards they set for themselves at the beginning.  They have strayed from those principles, and they have forgotten them, and become confused about them, and allowed misunderstood self-interest to obscure them.  Our own experience has confirmed for us that democracy requires more of its citizens than any other form of government and that it is no accident that history provides so few examples of successful and enduring democracies.  We count our blessings—the blessings of liberty—when we reflect with John Adams, "how few of the human race have ever had an opportunity of choosing a system of government for themselves and their children," and how few have chosen well.

The “genius” of the American people at the time of the American revolution and founding made it both possible and necessary to establish a country based on the republican principles proclaimed in the Declaration of Independence.  As Jefferson said in explaining the genesis of the Declaration, the ideas expressed in it were “the common sense of the subject” in America.  He was merely expressing “the American mind.”  It was only because the American people had learned to embrace republican principles that it was possible to establish an American republic.  I mentioned in an earlier letter the American founders’ “honorable determination  . . . to rest all our political experiments on the capacity of mankind for self-government.” This was a determination, James Madison affirmed, “which animates every votary of freedom.”  But the founders understood that any people that wished to be free, including the Americans, would have to demonstrate this capacity for themselves, and continue to demonstrate it each generation.  

As the Declaration of Independence proclaimed, the just powers of government are derived from "the consent of the governed."  Only a people prepared to consent to a free government are capable of establishing one; and once they have established it, as Ben Franklin never ceases to remind us, they will need to have what it takes to “keep it.”  At the least, this means a people must be prepared to recognize their own humanity and that of their fellow citizens; they will neither aspire to be masters nor submit to be slaves; they must be prepared to rule and be ruled in turn and to abide by the laws they claim the right to make for themselves.

We know from our own American case, even with all the natural and historical advantages we have had, that it is not easy to achieve or to keep and pass on these capacities for self government. Experience and common sense tell us that these capacities are going to be even harder to achieve without the great advantages we have had. So let us be patient and moderate in our expectations from those who may face great disadvantages.

Ohio Farmer

A Boundless Field of Power

To the Members of the 112^th Congress:

Do the powers granted by the Constitution authorize the federal government to require private citizens to purchase health insurance policies? Leading progressive politicians and intellectuals dismiss this question as not serious—in their view the question is closed, irrevocably settled by the triumph of the New Deal. Nonetheless, the nation is taking it seriously, and is engaged in a historic constitutional deliberation on the question.

This individual mandate, as it has come to be called, is widely considered to be crucial to the Patient Protection and Affordable Care Act (PPACA), the “Obamacare” law enacted in 2010. It is considered crucial because the law prohibits health insurance companies from refusing to sell policies to people on the basis of pre-existing medical conditions, and from imposing a lifetime cap on the dollar amount of reimbursements.  In light of these provisions, it is reasonable to expect that without an individual mandate, many people will respond to Obamacare’s incentives by waiting until they’re seriously ill to buy insurance.  No health insurance company could survive if forced to operate under that arrangement, in the same way no property insurance company could survive if its customers could wait until their houses were on fire to buy homeowner’s policies.  

As part of our constitutional deliberations, lawsuits have been filed against PPACA, with mixed results; some federal judges have upheld the constitutionality of the individual mandate, and others have deemed it unconstitutional.  While the question makes its uncertain way to the Supreme Court, American citizens who are not necessarily judges, scholars or lawyers continue to wrestle with it as a matter of politics, in light of the larger question: What can the federal government do under the Constitution, and what can’t it do?

America has an instructive history of considering this question. The first big fight over it concerned the federal power to create a Bank of the United States.  When President George Washington’s Secretary of the Treasury, Alexander Hamilton, proposed such a bank in 1791, Secretary of State Thomas Jefferson objected.  He contended that because the power to create a bank was “not among the powers specially enumerated” in the Constitution, its establishment would be “a single step beyond the boundaries” drawn around the federal government, which would lead it to “take possession of a boundless field of power, no longer susceptible of any definition.” Hamilton’s position was that for each power the Constitution confers on the government it also and necessarily confers “a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power,” unless the Constitution specifically denies a particular exercise of power to the federal government. Hamilton’s argument persuaded Washington to sign rather than veto the bill creating a Bank of the United States.

Twenty-eight years later, Hamilton’s and Washington’s view was upheld in the famous Supreme Court decision, McCulloch vs. Maryland (1819).   As Chief Justice John Marshall wrote for the Court: “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” But Marshall also wrote that the government of the United States “is acknowledged by all to be one of enumerated powers,” and the “question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist.”  

The debate over Obamacare shows that, as Justice Marshall expected, the question about where to draw the line between legitimate and illegitimate exercises of federal authority is still very much alive in the American constitutional conversation.  Jefferson, so to speak, continues to argue with Hamilton. Those who challenge the constitutionality of the law seem concerned, among other things, at the “boundless field of power” Congress seems to claim when it asserts a power to compel all Americans to enter into whatever private economic relationships Congress deems convenient to its purposes. Federal district court judge Roger Vinson expressed some of this concern in the Florida case, State of Florida v. United States Department of Health and Human Services, where he wrote that "Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States."

It is true, as I remarked in my last letter, that with the entrenching and expanding of the New Deal and the Great Society, America has reached a point where “the federal government can do just about anything it wants, and can do it just about any way it wants.”  Our progressive politicians and intellectuals insist that this condition is irreversible—beyond serious question. The movement of American politics over the past two years seems to be proving that this is not the case. And so the progressive insistence that the question is closed gets louder and more desperate.  Just opening the question is a significant achievement, though it leaves much statesman’s work still to do—as Hamilton and Jefferson teach us. We can learn much from both of them as we continue to recover the kind of constitutional reasoning these letters hope to help restore to governing in our country.

Ohio Farmer