Letters from an Ohio Farmer

The American Conversation

To My Fellow Citizens:

It is Constitution Day again. Two-hundred-and-twenty-five years ago, on this day in 1787, the delegates to the Constitutional Convention in Independence Hall in Philadelphia signed the document which, when ratified by the people, would become the "supreme Law of the Land." This act was the culminating episode in the historic drama begun in the same hall 11 years earlier when the Declaration of Independence, appealing to the "Laws of Nature and of Nature's God," proclaimed to the world the experiment in self-government being inaugurated by the newly sovereign American people.  

In 1776, the American Revolutionaries had pledged their lives, fortunes, and sacred honor to what Lincoln would later call America's "philosophical cause." At the heart of that cause was the central idea from which all other American political ideas radiate, the self-evident truth that "all men are created equal."  These most American words contain within themselves the idea of limited self-government—the idea of political freedom itself: All men are equally endowed with certain unalienable natural rights, governments are instituted with the limited purpose of securing these rights, and the just powers of government are derived from the consent of the governed.

In 1787-88, in the greatest constitutional conversation the world has yet seen, the American Framers would author and the American people would authorize a Constitution intended to establish forms through which Americans might more perfectly achieve the ends set forth in 1776. The Constitution would be an instrument by which the sovereign consent of the American people might govern not willfully, but reasonably, as the cool and deliberate sense of the country.  Governing ourselves through the forms of the Constitution we would make ourselves a constitutional people, demonstrating to ourselves and to the world, as it had never been done, the capacity of mankind for self-government. 

One-hundred years ago, in his successful 1912 presidential campaign under the banner of the "New Freedom," Woodrow Wilson repudiated this American constitutionalism and the American Constitution itself as outmoded ideas that needed to be replaced by continually new ideas to fit continually new times. He repudiated the Founders' appeals to the laws of nature and to natural rights in favor of the laws of evolution, the laws of History and Progress. More than any other figure, Wilson became responsible for bringing directly into American political life the idea of a "living constitution," a constitution to complement a government whose powers must continually "evolve" and expand to meet continually evolving and ever-expanding needs.  Wilson's New Freedom was the first wave of progressivism in what would become in decisive respects a progressive century.

The New Freedom was soon followed by Franklin Roosevelt's New Deal, in which FDR, bringing up to date the famous first 10 amendments to the Constitution, proclaimed a "second Bill of Rights"—an "economic bill of rights"—that continues to set the progressive agenda to this day. These alleged "rights"—which include, among other desirable things, a well-paying job, recreation, a decent home, a good education, and adequate medial care—have in the eyes of progressives assumed constitutional status under the living constitution. They achieved the status of "entitlements," not through any amendment procedure authorized by the Constitution, but through the mysterious amendment process of history with a capital H and progress with a capital P. To secure such vast entitlements, with which we are allegedly endowed by History and Progress, government must become vast—it must become the "welfare state," which has replaced the limited constitutional government constructed by the Founders to secure our natural rights and the civil rights following from them. 

A generation after Roosevelt's New Deal, Lyndon Johnson's Great Society aimed not only to complete the New Deal, but to expand it immeasurably. "The Great Society," said LBJ, "is a place where every child can find knowledge to enrich his mind and to enlarge his talents . . . where leisure is a welcome chance to build and reflect . . . where the city of man serves not only the needs of the body and the demands of commerce but the desire for beauty and the hunger for community. . . ." LBJ's Great Society aimed not only to relieve all material needs, but to provide spiritual fulfillment to all Americans. To secure these hitherto unimaginable new entitlements would, of course, require government without limit. Limited constitutional government responsive to the cool and deliberate sense of the citizenry was buried under multiplying labyrinthine bureaucracies, staffed by supposed experts.

These three great waves of progressivism, each one offering new transformations of the Founders' Constitution, justified by endlessly evolving History and Progress, constitute an evolutionary revolution that has in the course of a century made limited constitutional government in America almost invisible. "Hope and Change" was intended as the next progressive wave. Barack Obama's promise just before his election in 2008 was perfectly in keeping with the spirit of his progressive predecessors: "We are five days away," he vowed, "from fundamentally transforming the United States of America." He wasted no time proving he meant exactly what he said.

The determined progressivism of the new President and his party sparked a widespread movement among American citizens to restore limited constitutional government in America. The historic 2010 elections brought into office a House of Representatives that insisted in unprecedented ways on respect for the Constitution. The constitutional seriousness of this movement and this Congress was greeted by progressive politicians and intellectuals with arrogant contempt. The arrogance came from the essential progressive article of faith—the belief that, above all, beliefs must go unquestioned—that history with a capital H and progress with a capital P are irrevocable, that "you can't turn back the clock."

But this could not be true, if the moral and political axioms of the American Revolution and Founding are true. Self-government and political freedom are not a wind-up clock. Repealing the President's disastrous progressive Patient Protection and Affordable Care Act (Obamacare) would be one effective way of proving this point, among innumerable other possibilities that present themselves to citizens and their representatives who are not frightened by the bogeyman of "History" and "Progress," and are determined and happy to think for themselves about what might be best for the country.  And so, a constitutional conversation began.

This is the kind of conversation the American people characteristically have at pivotal moments in our history—about the foundations, purposes, scope, and form of our government, about the rights and duties of citizens, and the responsibilities of their representatives. This series of essays modestly hopes to contribute to this urgently necessary American conversation.

Ohio Farmer

Security and Limited Government

To My French Friend:

In my previous letter, Jean-Luc, I promised I would write to you again about the necessity of limited government.  I thought I would do so not by reiterating my concerns about our budget deficits and national debt but by discussing security.  It may seem odd to do so, since even the most ardent advocates of limited government acknowledge that government must provide security for its citizens.  This is true but what this means now and in the future must change, I submit.  To persuade you of this, let me offer some history. 

Throughout America's history, concerns about security have varied.  After the war of 1812, except for the years around World War I and the period from 1941 to 1990, our principal security concerns were domestic, not foreign.  But whichever were most important at a given time—domestic or foreign threats—we have responded to them by increasing the power of the government. 

Consider our domestic security concerns.  In response to the rioting and disorder of the urbanizing United States, police forces replaced constables first in Boston and then in other cities, slowly but steadily, from 1838 onward.  In response to labor and other violence of the later 19th century, states organized national guard troops and then, beginning in 1905, state police.  Federal police began with the Secret Service in 1865, which fought counterfeiters and other violators of Federal law but also the violence of the Ku Klux Klan after the Civil War in states then under Federal control during Reconstruction. 

The Secret Service was joined about 40 years later by the FBI, which eventually took over the fight against the Klan and other disturbers of our domestic tranquility.  Since the establishment of the FBI in the Justice Department, a number of other Federal agencies have also gained police authority.  Not only did new law enforcement organizations come into existence but new laws did as well, to regulate the conduct of citizens and to authorize the activities of local, state, and federal police.  After the attacks on September 11, we did not create new police forces but we passed new laws increasing the power of the police that already existed.

Each of these increases in the police power created controversy.  Still, our history shows that our concern with security has steadily, if reluctantly, led us to increase the power of government.  I believe that we can no longer follow this path.  In the future, our security will require that we limit the power of government, not increase it. 

To see this, I think we need only consider how technology is developing.  I read not too long ago of someone experimenting with DNA in a home lab.  This was being done for reasons of personal curiosity and in the hope of curing disease.  But it could also be done with malicious intent, in hopes of inflicting grave harm.  Or think of all those who spend time online and the few who are led to violence or who lead others to violence through the internet.  In these cases, what must be the power of government, how intrusive must it be into the lives of citizens, to find the few who might do grave harm?  Given these threats can we continue to seek security by steadily increasing the power of government?

An alternative approach is present in our constitutional tradition.  The real issue of the Second Amendment is not whether the right to bear arms applies to all individuals or only those in the militia.  The Amendment is clear recognition that security should not be left only to professional soldiers (and we may now add professional police) but that it is the responsibility of every citizen.  We must encourage that spirit.  I believe that the American people still possess it.  We see it, for example, in the help they give each other in natural disasters. 

In encouraging that spirit, the objective is not to replace government and its police power with the activity of citizens.  It is rather to change our historical pattern as regards our security; to look first to increase as much as possible the scope of citizen action, in order to limit as much as possible the scope of government action.  Given the security threats we face, only such an approach will preserve both liberty and security.

No doubt, my friend, you are wondering what exactly are the people to do when they take responsibility for their security.  In truth, I would say that the full answer to that question remains to be discovered.   Vigilance will be important, as will be working with the police, an effort that to their credit many police forces are already encouraging.  This vigilance and cooperation is already occurring to some degree, for example, on the internet. 

You will also be worried that in encouraging vigilance, the approach I am offering will encourage vigilantism, or citizens taking the law into their own hands, often for unjust ends.  To this I must respond that vigilantism does not produce only injustice and the judicial system only justice.  But the American judicial system is both competent and just, and the police powers of government will remain significant.  Together they will limit the dangers of vigilantism.  And those limited dangers are worth the risk to give liberty its greatest scope.   

So, I hope you will agree that the people have a growing role to play in preserving their security. That is after all the simplest yet most profound lesson of 9-11.  The only attackers who were stopped that day were stopped by citizens who took their security and the security of their fellow-citizens into their own hands. 

Ohio Farmer

Justice and Limited Government

To My French Friend:

Thank you, Jean-Luc, for the report on the re-emergence of state run enterprises, or state capitalism, as it is called.  I had thought this phenomenon restricted to China, France, and a few other "backward" places, but now I see that it is widespread, a growing trend in Latin America and parts of Asia even beyond China.  And it is not at all considered backward but the newest way to wealth and happiness.  I discover that it is you and I who are backward, attached as we are to the idea that individual effort and responsibility are best.

To me the report shows that we are not mistaken.  It cites data showing that state controlled companies are much less productive than independent companies, for example.  This means that state controlled companies contribute less to economic well-being than independent companies.  The report does lend some support to those who argue for a larger state role by noting the ways that governments help economies grow, by administering the rule of law, building roads, and such things.  But in doing this, government is providing only some of the conditions that make economic success possible.  If it does more than that, it risks creating the conditions that stifle growth.

These notions, of course, bring to mind the remark of President Obama that, "if you've got a business—you didn't build that.  Somebody else made that happen." I am sure you have heard of this episode.  If the President meant to point to the help that government gives to all our endeavors, he would have said the obvious.  But his remark, the longer passage in which it occurred, as well as the controversy it generated, obscured a simple point.  All the money the government spends comes from the wealth created by the hard work of Americans.  It is the hard work and initiative of Americans that comes first and is the source of all wealth, even that used by the government to assist Americans.  That will be the case unless the government completely dominates the economy, which presumably the President is not advocating. 

If the initiative and hard work of Americans is the ultimate source of wealth, then the government should do nothing to discourage this initiative and hard work.  It should do only what is necessary, so that the initiative of citizens has the greatest possible scope.  In limiting its power, in leaving to each of us, in the greatest degree possible, the wealth our hard work has earned, a government does not only what is best for the creation of more wealth but also what justice demands. 

The connection between limited government and justice is a point too seldom noted, I think.  Most advocates of government intervention assume that such intervention will promote justice—social or economic justice, as it is now called.  But the opposite is really the case.  Have you and I not discussed many times how in France what can only be called a class of people moves from executive positions in government controlled businesses to executive positions in government ministries and then back again into the state owned firms?  Have we not noted how this class protects itself and its privileges?  Have senior positions in state enterprises in China not become the sinecures of those who run the government, the Communist party elite and their sons and daughters?  Whatever wealth or privileges a government controls, it will tend to distribute not according to the merits of those who receive it, but according to the interests of those who distribute it.  That is not justice.

You noted that the current fashion for government involvement in the economy puts an end to the Reagan-Thatcher revolution for smaller government.  I appreciate your allegiance to the Anglo-American leaders so often criticized in your own country.  But I think that the vogue for state capitalism is a threat to an older revolution, the American Revolution.  To those who fought the power of government then, its injustices were more evident.  Aristocratic privilege was embedded in law; means of redress were more limited.  Taxation without representation was a clear injustice.  But having won independence and the right of representation, the injustice inherent in the power of government remained.  Thomas Jefferson understood this.  That is why in his First Inaugural address he argued for what he called frugal government that "shall not take from the mouth of labor the bread it has earned."  

I hope with you that the current fashion for more government, at least in the United States, is nothing more than a response to the recent recession and that we will soon turn toward smaller government.  Justice as much as economic well-being would be best served by such a turn.  We have, of course, moved far from what Jefferson meant by frugal government.  It may not be possible to return to that Jeffersonian standard, but there are good reasons to think that a smaller, less intrusive government will be both possible and necessary in the future.  I will write to you soon about my reasons for thinking so.  

Ohio Farmer

E Pluribus Unum

To My Fellow Citizens:

In August 1790, Moses Seixas, Warden of the Hebrew Congregation of Newport, Rhode Island, wrote a letter to President George Washington, welcoming him to the city. "Deprived as we heretofore have been of the invaluable rights of free Citizens," Seixas wrote, "we now with a deep sense of gratitude to the Almighty disposer of all events behold a Government, erected by the Majesty of the People—a Government, which to bigotry gives no sanction, to persecution no assistance—but generously affording to all Liberty of conscience, and immunities of Citizenship:—deeming every one, of whatever Nation, tongue, or language equal parts of the great governmental Machine …." Seixas continued, expressing thanks for "all these Blessings of civil and religious liberty which we enjoy under an equal benign administration."

President Washington replied three days later, appreciating the sentiments and explaining something about the principles that give rise to the blessings of civil and religious liberty: "It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States … requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support."

The idea of America's "enlarged and liberal policy" is that all "possess alike liberty of conscience and immunities of citizenship." The government that extends the invaluable rights of free citizens to those heretofore deprived of them does so because it believes it can follow no other course if it wants to be a just, legitimate government. Certain natural rights are unalienable according to the Declaration of Independence, and governments are instituted among men to secure these individual rights. The indifference to ethnic and religious distinctions that had caused wars around the world for centuries is a byproduct of this understanding of what government must and must not do.

Our first president, then, was addressing what we would today call the problem of "diversity" in a way that made it sound like it wasn't really much of a problem. Or, as the 40th president liked to say, it was a problem whose solution was not necessarily easy, but was simple: As long as people were good citizens, the government would recognize and protect their rights, strictly refusing to calibrate that duty by taking into account different religious affiliations or national origins.

What's at stake, however, is not just the relationship between citizens and state, but the nature of the relationships among citizens. Washington concludes his letter to the Hebrew congregation by alluding to the Old Testament book of Micah: "May the children of the stock of Abraham who dwell in this land continue to merit and enjoy the good will of the other inhabitants—while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid." A diverse nation can work if its members strive conscientiously to be worthy of one another's good will, and to be generous in extending that good will to all who have earned it.

We usually understand "E Pluribus Unum"—From Many, One—as a call to make federalism work. The colonies that formed the 13 original states, plus other states subsequently admitted to the Union, were supposed to remain distinct political entities while composing a viable whole. From the beginning, however, there was the parallel awareness of the need for the people to form one nation, even as the states formed one country. The first design for the Seal of the United States included, in addition to "E Pluribus Unum" and the shields of the 13 colonies, six symbols for "the Countries from which these States have been peopled": England, Scotland, Ireland, France, Holland, and Germany. Virginians and Georgians would be Americans but so, too, would Englishmen and Germans.

The need to accord adequate scope and respect to "oneness" and "manyness," while at the same time reconciling them, is not just an American problem. It is a fundamental political problem, always and everywhere, since all encompassing human assemblages must find a workable balance between the centrifugal force of Pluribus and the centripetal one of Unum. The circumstances under which America has addressed this problem have been uniquely challenging, however. The population of the United States in 1790, when Seixas and Washington exchanged their letters, was 3,894,000, less than half the number of New York City's inhabitants today and about one 80th of the present U.S. population.

Moreover, we are not only far more diverse in 2012 than America was in 1790 as a matter of fact, but as a matter of principle. We use "diversity," that is, as a prescriptive as well as a descriptive term. Those for whom diversity is a cause insist justice demands new and greater efforts to honor and accommodate our plurality. These demands include many particulars, such as: public signs and official documents written in Spanish as well as English; successful lawsuits against displaying Christmas trees or the Ten Commandments on public property; same-sex marriage; and affirmative action programs that are supposed to assist not only the members of minority groups who are admitted to colleges or hired by organizations, but the entire student body or workforce that benefits from a widened range of experiences and perspectives.

Turning diversity into an ideology does not make the many/one problem disappear, however. In fact, as the list of particularities America is asked to encompass grows indefinitely, the unifying ideas and sentiments become all the more important. Thoughtful advocates of diversity increasingly recognize that any Pluribus worth celebrating is made possible only by the great American Unum—the central idea from which Abraham Lincoln said all his political sentiments radiated: the self evident truth that all men are created equal. Under today's circumstances, it has been thought most fitting and helpful in this series of letters to emphasize this American Unum and to articulate its meaning and profound implications. We trust, however, that a fair-minded review will find the series a not unworthy monument to the mystic chords of memory that make an enduring and beautiful harmony of the American Unum and Pluribus.

Ohio Farmer

Taxation and a Republican Constitution

To My Fellow Citizens:

The Supreme Court recently held the Patient Protection and Affordable Care Act (Obamacare) to be a valid exercise of Congress's constitutional authority. Surprisingly, the Court did not find the Act constitutional under the Commerce Clause as the law's proponents had argued, but under the taxing power.  Perhaps no Supreme Court ruling in our lifetimes will be as heavily scrutinized as this one, so serious citizens will want to think about it and come to their own conclusions. 

As I noted in an earlier letter, progressives for the past century have justified expanding federal regulatory power over the economy by insisting on a broad reading of the Commerce Clause. It was a breathtakingly aggressive claim that underlay Obamacare, namely, that Congress may "regulate" commerce by mandating that individuals purchase health insurance or else face a financial penalty.  Chief Justice Roberts rejected this claim. But he then upheld Obamacare's constitutionality, nonetheless, under the taxing power.

Outraged conservatives took little solace in his rejection of the Commerce-Clause justification of the law. What difference does it make, some wondered, whether the federal government tramples our liberties under the Commerce Clause or the taxing power?  And where exactly in the Constitution does the Chief Justice find authorization for such use of the taxing power? Still, the distinction between regulation and taxation is not a case of mere semantics, and maybe this is a distinction that could make a difference.

Taxation occupies a unique place in American history and civic consciousness.  While few citizens know the origins of the Commerce Clause, nearly everyone understands that taxation somehow ignited the American Revolution.  We've all heard the phrase "no taxation without representation."  Schoolchildren learn of oppressive taxes on stamps and tea—oppressive not because British officials imposed a heavy financial burden but because they raised taxes without colonial consent.  Indeed, the colonists felt driven to resistance primarily because Parliament acknowledged no limits to its authority. 

Episodes such as the 1794 Whiskey Rebellion show that Americans' resentments over taxation persisted after the Revolution.  Nowadays elected officials often take a pledge not to raise taxes, a pledge they ignore at their peril.  In short, taxes tend to command Americans' attention and arouse their anger in ways that commercial regulations do not.  Is it mere wishful thinking to suppose that it will be more difficult for proponents of unlimited government to expand federal authority under the taxing power (than under the Commerce Clause) without alarming the sovereign people?  Chief Justice Roberts's opinion seems in some respects to throw the entire question back to the political arena.  At least to this extent, is his decision a welcome development for those Americans who don't want the Supreme Court to serve as the final arbiter of all constitutional debates?

Thomas Jefferson thought that if the Supreme Court came to be regarded as the sole interpreter of the nation's fundamental law, it would threaten the very existence of constitutional self-government.  In an 1819 letter to Judge Spencer Roane, Jefferson argued that "The constitution, on this hypothesis," would be "a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."  Jefferson preferred genuine separation of powers in which "each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action."  He believed, as did most of his contemporaries, that presidents and members of Congress shared in the responsibility of interpreting the Constitution and thus maintaining the balance essential to free government. 

When Jefferson and Alexander Hamilton quarreled over the constitutionality of a national bank, or when Federalists and Republicans in Congress quarreled over the constitutionality of Jay's Treaty, they did not submit the question to the Supreme Court for a final verdict.  The Constitution's framers never meant for the Supreme Court to become the final and sole arbiter of constitutional meaning. They expected Americans to elect legislators who think seriously about constitutional questions, and this could happen only if the people took it upon themselves to think seriously about such questions, assuming their rightful role as guardians of their republican experiment.          

Of course, Obamacare supporters, who tend to want to subject politics to bureaucracy, now wish the matter closed.  But the matter is not closed. It is very much in the hands of the American people, who have a historic opportunity to assert the republican spirit that has served them so well for more than two centuries.  The health-care debate has reminded us anew of our obligation to think about the powers we wish our government to wield.  In that sense, at least, let us hope that it will prove to be good for our political health.

Ohio Farmer

Revolutions and Freedom

To My Fellow Citizens:

When you go to Mount Vernon, the guides in the main house proudly point out an amazing piece of history in the front hallway. There, so close you could touch it if it weren't behind glass, is the key to the Bastille prison – a gift to George Washington from the Marquis de Lafayette, who had served with Washington in the Revolutionary War and then himself played a role in the French Revolution. The key recalls Bastille Day, July 14, 1789, when the people of Paris stormed King Louis's hated prison. It was supposed to symbolize the unlocking of liberty by these two revolutions. 

But the French Revolution took a very different turn from the American. In France, revolution opened Pandora's box, leading to a bloody Terror that ended with the rise of Napoleon, a generalissimo who eventually crowned himself emperor. In this the French Revolution was not alone: the Soviet Revolution gave us Lenin, Stalin, and the gulags. China had Mao's Cultural Revolution, with its cult of personality and millions dead or imprisoned. The Iranian Revolution ended with Ayatollah Khomeini and radical Islam rising to power in the Middle East.

Now, with so much revolutionary sentiment sweeping the world in places like Egypt, it's worth asking ourselves the question: Why did the American Revolution produce a regime of constitutional liberty when so many other revolutions have brought tyranny or disorder – or both? 

I hope it will not seem patriotic boastfulness to say that the American Revolution was an exception because the Americans had the right principles and habits. We believed that all human beings are "endowed by their Creator with certain unalienable rights" and that government's fundamental job is to protect those rights – not to bring about social utopia or economic paradise or the rule of God on earth. The French, Russian, Chinese, and Iranian revolutions were different. They did not just want to recognize the rights of human beings; they wanted to remake society completely and even transform human nature itself. Everyone in France had to become "citizen": no other title or attachment could matter anymore. Likewise, everyone in Russia was to be made into a "comrade," a  "new Soviet man," and millions and millions in China had to be "re-educated." In Iran, the people had to become believers in the veliyat-e-faqih – the rule of God on earth.

These revolutions had no time or place for anything that stood in their way. Life, liberty, or property? Property had to be confiscated in the name of revolutionary fraternity or a classless society. Liberty had to be curtailed because no one could be free to dissent from the "general will" or the vanguard of the people. The sacred right to life? "Enemies of the people" got show trials or, more often, summary execution. Because the revolutions had limitless purposes, they had in principle no stopping point. Everything had to be overthrown and transformed, and all means were justified.

The American Revolution was different. It sought to bring a "new order of the ages" (Novus Ordo Seclorum as our dollar bill says in the Latin taken from the Great Seal of the United States), but that order was built on principles in the Declaration of Independence that inherently limited the scope of revolution. Americans knew that political truth comes from the "laws of nature and of nature's God," which lends a solemn lawfulness to the cause that does not permit casual violence or unjust actions in the name of "revolution."

We also understood that government gets its "just power" from "the consent of the governed," which means that government is the creation of the people, not vice-versa, and it must have their agreement to rule them. This excludes the use of violence by revolutionary "leaders" to force others to comply with their pronouncements. Our leaders like Washington did not try it; he handed back his military power to Congress after the Revolutionary War in 1783. Nor would the American people or its army have tolerated any other course of action, even from Washington. As James Madison said:

I have always believed that if General Washington had yielded to a usurping ambition, he would have found an insuperable obstacle in the incorruptibility of a sufficient portion of those under his command, and that the exalted praise due to him & them, was derived not from a forbearance to effect a revolution within their power, but from a love of liberty and of country which there was abundant reason to believe, no facility of success could have seduced.

And the Americans realized that protecting "certain unalienable rights" restricts the size and intrusion of government once it is established, and leaves space for personal freedoms like speech, press, and religion.  It is no accident that the state constitutions created in the midst of the Revolution were the products of deep deliberation and tried carefully to protect individual rights, embrace the rule of law, and expect real republican virtue from the people.

America was also different because we had been practicing the principles of our revolution long before we famously proclaimed them on July 4, 1776. As James Madison said in Federalist 39, republican government was part of the "genius" of the American people even before 1776. We had been governing ourselves locally from the time of the first Puritans. By the time the shooting started in 1775, we were used to the rule of law and to the rights and responsibilities of freedom.

Can we say the same about countries today that are experiencing revolution? Take Egypt, for example. In the early 20^th century, Egyptian elites tried to bring about democracy, but it failed. Then Egypt flirted with Arab nationalism, which is still a force. And for a long time one of the centers of opposition has been the Muslim Brotherhood, which has never really given up the idea of adopting sharia law.

Admittedly, in the past year Egypt has acquired some of the elements of democracy like vibrant newspapers, presidential debates, and multi-party elections. Such limited habits of democracy, however, are not enough without underlying principles of freedom.

A free society is within the capacity of any country, including countries like Egypt. But are today's revolutionaries more like their French or American predecessors? Do they see the glory of revolution in storming the Bastille and tearing down the old oppressor? Or in creating a regime of self-government that respects all of the individual rights of citizens, including economic freedom, freedom of speech and, especially, religious freedom? 

If history is any guide, we should be cautious: revolutions that give birth to free societies are exceedingly rare. The French Revolution eventually did, but only after many fits and starts. France is, after all, on its Fifth Republic. That's because a freedom revolution not only needs statesmen like Washington rather than Napoleon, it must have a revolutionary spirit animated by the right principles and moderated by the right habits. We Americans had them, I am grateful to say.

But if we are going to keep the Revolution, we have to conserve those principles and habits. Every generation must learn them anew. With them, liberty thrives. Without them, liberty dies.

Ohio Farmer

 

America's Constitutional Story

To My Fellow Citizens:

We Americans have a constitutional history going back further than we usually think. It is an instructive history. We were a constitutional people long before we became a nation.  For nearly 170 years, England's North American colonists lived and prospered under the English (later British) constitution and thus enjoyed the rights and liberties of Englishmen.  They had colonial charters, of course, and they learned to cherish representative government.  But the wellspring of their rights and liberties, as they understood them, was the English constitution itself.  Unlike our present U.S. Constitution, the English constitution is unwritten.  In the seventeenth and eighteenth centuries it was best understood as a set of judicial precedents and institutional arrangements, developed over time, which ensured a balanced government. 

This balance guaranteed that no branch of the government (though they didn’t think in terms of branches the way we do) would become too powerful.  According to the English Whig historical narrative, the Glorious Revolution of 1688-89 expelled the would-be tyrant King James II, elevated Parliament, and thereby preserved English liberty through constitutional balance.  In a late-feudal and early-modern European world of absolute monarchies, English parliamentarians declared that royal power had limits.  Small wonder, then, that England's North American colonists thought themselves the freest people on earth.

But as Americans became more integrated into the British Empire, they came to understand liberty and constitutionalism in ways that differed from their brethren across the Atlantic.  Britain's clumsy efforts to extract revenue from the colonists—stamp taxes, tea taxes, etc.—ignited a great constitutional struggle.  When Parliament claimed the power to make laws for the colonies, America's political leaders met this claim with defiance.  "The true ground on which we declare these acts void," Thomas Jefferson argued, is "that the British parliament has no right to exercise authority over us."  In short, Jefferson and his compatriots declared independence from the British Empire in large part because they realized that the unwritten British constitution meant whatever Parliament said it did. 

Recognizing that an unchecked legislature posed as great a danger to liberty as did an absolute monarch, America's revolutionaries commenced the second act of our constitutional story when they set about drafting written constitutions, including the U.S. Constitution of 1787. History had shown that even in the English-speaking world power and liberty were constantly in tension. 
Societies need their governments to exercise power for the common benefit, but that power requires meaningful limits.  Fully discarding both divine right monarchy and parliamentary sovereignty, America's constitution-makers appealed to the sovereign consent of the people to impose limits on government authority and instruct public officials in what powers they may wield. 

The constitution-makers divided these powers among the three branches and between federal and state jurisdictions. They wrote bills of rights to serve as redundant checks in case any public official forgot the popular source and limited nature of government's powers.  To exercise powers not granted by the people through their written constitutions, Jefferson wrote in 1791, was to "take
possession of a boundless field of power, no longer susceptible of any definition." In the ensuing decades, America's post-revolutionary statesmen did not always agree on the precise meaning and limits of constitutionally enumerated powers.  Universally, however, they acknowledged a good people's sovereignty channeled through written constitutions as America's salvation from arbitrary rule.

This firm belief in the relationship between liberty, the sovereign people, and enumerated constitutional powers persisted into the twentieth century, when American progressives launched the third act of our constitutional drama.  For more than a hundred years the United States had grown and prospered. Americans built canals and railroads, settled the trans-Mississippi West, and assimilated millions of immigrants. Despite a cataclysmic rebellion and civil war, the Founders' constitutional order survived.  By the early 1900s, however, many came to believe that industrialization and modernization posed challenges for which the Founders' Constitution was inadequate.  National problems, Theodore Roosevelt insisted, required national solutions. 

As I noted in an earlier letter, progressives' belief in the inadequacy of eighteenth-century governments to deal with twentieth-century problems compelled them and especially their intellectual heirs on the political left to adopt a kind of "living" constitutionalism. The U.S. Constitution, they say, is organic; it must evolve as society’s challenges multiply.  It is true that on four separate occasions the first generation of progressives at least had the decency to amend the Constitution.  As they discover more and more "national" problems, however, modern progressives grow impatient with constitutional restraints and the people's sovereignty. They turn more and more readily to virtually lawless government-by-experts. When asked to identify constitutional authority for one or another proposed progressive remedy, they sometimes react with utter astonishment.

There is a strange irony in the name "progressive," for the progressives' "living constitution," in replacing enumerated powers and the sovereignty of the people with the unlimited sovereignty of government, resembles the British constitution we rejected over two centuries ago. The next historic act in America’s constitutional drama is to recover the Founders' Constitution.               

Ohio Farmer

Democratic Government and Good Government

To My Fellow Citizens:

The American experiment, as these letters have argued (here and here), is a never ending
experiment. It is the experiment of every generation to prove again, as our Founders set out to prove, that democratic government can be good government.

Political philosophers have been debating the meaning of good government for centuries. It is safe to say that two requirements, defending against foreign aggressors and avoiding insolvency, are probably not sufficient for achieving good government but are absolutely necessary to any conception of it. No matter what else a government may achieve, if it allows the nation's subjugation or financial ruin it must be considered a failure.  

These elemental goals are especially difficult for democracies, however. For one thing, both require the majority of people to assent to managing public affairs by imposing tangible, short-term sacrifices for the sake of abstract, long-term benefits. This is exactly the maxim that the majority of people apply reluctantly and inconsistently to the management of their private affairs.

Moreover, even if a democracy's selected leaders succeed in persuading the nation that military preparedness or fiscal restraint is necessary in general, they will still face the problem of imposing the necessary sacrifices on particular citizens. That is, convincing people that soldiers should be conscripted, taxes raised, or subsidies cut is different, and easier, than responding to the "Yes, but" replies: Yes, we need more soldiers, but there are compelling reasons not to draft my kid. Yes, we need to balance the budget, but you should raise his taxes, not mine, and reduce their benefits, not ours.

Equality is democracy's fundamental principle, and majority rule is the obvious manifestation of that principle: If everyone's votes are equal, then the candidate or proposition that gets the most votes deserves to win. Majority rule would seem to equip democracies to impose sacrifices on minorities for the benefit of the whole society, perhaps in ways that lend themselves to the abuse of minorities.

Nonetheless, the history of democratic governance shows that minorities are often very successful at fending for themselves, despite majority rule. When, for example, the costs of a policy are borne by everyone, but are very slight, while the benefits are garnered by only a minority of the population, but a minority that is deeply committed to receiving and continuing those benefits, the correlation of democratic forces favors the minority over the majority. Federal price supports for farmers are an example of this phenomenon. Few citizens will vote against a politician because of a farm program that adds a few dollars a year to their tax bill or grocery bill, so no politician fears that supporting those programs will end his career. Many farmers, however, will vote against a politician who tries to end those programs, so politicians, especially from rural states and districts, have compelling reasons to perpetuate the subsidies.

In one respect, the democratic challenge of defending the nation is harder than preventing bankruptcy, since the sacrifices required by the latter expose no one to violent death or dismemberment. Viewed from another angle, however, this same distinction makes fiscal discipline the more difficult attainment. Washington, D.C., like every nation's capital, is crowded with statues of military heroes, whether generals mounted on horseback or enlisted men captured in a moment of valor, such as the Marines raising the flag on Iwo Jima. There are, by contrast, very few statues of Secretaries of the Treasury, and none showing a civil servant fearlessly subduing a spreadsheet.

The fact that keeping our national accounts in order is a permanent need, and a mundane one, means there will always be a gravitational pull in the direction of bigger deficits, growing debt, and increased borrowing. The historical record shows that there’s a further connection between martial and fiscal imperatives: big increases in the federal debt usually correspond to major wars. Thus, the federal debt, the total amount owed by the federal government to all lenders as a result of past borrowing not retired, increased from $65 million in 1860 to $2.77 billion in 1866, a factor of 43. It increased from $3.61 billion in 1916, the year before America entered World War I, to $25.95 billion in 1920, the fiscal year after the war ended. The debt then grew from $48.96 billion in 1941 to $258.29 billion in 1947.

Few would argue, of course, that it would have been better if America had lost or never fought these wars rather than incur the expense and indebtedness necessary to win them. One noteworthy thing
about this historical pattern, however, is that the wartime increases define plateaus rather than peaks. After incurring huge loans to fight a war, the federal debt never gets much smaller than it was at the end of the war, and never gives the slightest indication of reverting to the levels seen before the start of the war. These plateaus seem to be only partly explained by the duration of the loans needed to build ships and planes. Another part of the explanation is that wartime borrowing shows what the market and the electorate will bear. Lenders offer to loan the government much more money than it had ever before tried to borrow, and voters learn to live with levels of debt that had previously been unimaginable.

According to the field of economics known as public choice theory, the wonder is not that our budget deficits aren’t smaller, but that they aren't much larger. Borrowing more money will always be the least unpopular option in a democratic contest where the alternatives are taxing more or spending less. Americans can look at Greece or Spain, however, to see the dangers of borrowing as much money as the world is willing to lend. The nations that try it routinely wind up borrowing more than the world is willing to lend, and are forced to pay a high premium to induce lenders to make loans to governments that can't be counted on to repay them. This course leads into a fiscal death spiral, where a national government is forced to borrow at high interest rates because its ability to repay is dubious, but the high interest rates put such a burden on its finances that its ability to service its loans is in fact diminished. If we have the sense to attend to its lessons, daily experience is teaching us what it has always taught: that America must find a way for its democratic government to be a good, fiscally disciplined government.

Ohio Farmer

The Distributive Constitution and the Election of 2012

To My Fellow Citizens:

In recent letters (here and here), I reflected on the views of some of our learned fellow citizens on the left.  According to one of them, a professor at a public university, democracy requires that citizens enjoy material security.  Without material security, no one has the independence to be a citizen.  Without such security, a citizen lacks the self-respect to stand up for his rights.  A market economy does not provide material security.  It is too unpredictable in its support and leaves citizens at the mercy of a corporate oligarchy.  Since material security is necessary for democracy to function, and since the market cannot provide it, government must do so.  To provide this security, to which every citizen has a right, the government should redistribute wealth.

In response, I argued that what the leftist professor approves in American life would have been impossible, if his argument were correct.  If less well off citizens could not function effectively in a democracy and the corporate oligarchy was all powerful, how did laws favorable to working men get passed and candidates favoring their interests get elected?  That such laws have passed and such candidates have succeeded is a sufficient refutation of the professor's views.  Material security is not necessary for democracy, because those who passed the laws and elected the candidates did not have this security.  But consider this further evidence of how wrong the professor's critique of our democracy is.  Although the left rails that unequal wealth corrupts democracy by giving some more power than others, no one who has studied the connection between money and elections has been able to show that money can buy an election.  Favored candidates attract more money, but more money does not buy favor. 

The professor's claims about what ails our democracy are all wrong.  His remedy, redistribution of wealth, is therefore unnecessary.  If carried out, it would be paradoxical and dreadful in its consequences.  A moment's reflection will assure us that no government, no power on earth, can provide the material security he insists must be considered a right.  Any government with the power and ambition to try would become tyrannical.  The effort to insure democracy through the power of government would paradoxically extinguish freedom.

Arguments like those the left makes about redistribution and democracy do not occur only in theoretical discussions.   They apply directly to political issues.  For example, one of the professor's equally learned colleagues, a distinguished academic, a former President of the American Political Science Association, has written recently that redistribution is central to Affordable Care, the health plan passed by the Obama administration.  She criticizes her fellow leftists for their tepid support of the President.  More needs to be done, she agrees, but then admonishes them that "Affordable Care . . . is a redistributive and regulatory breakthrough" that deserves their support. 

More is at stake, however, in the Affordable Care act, she argues, than just health care.   "Affordable Care, on top of Social Security, Medicare, and Medicaid, could strengthen the bond between middle class Americans and a national government that supports security for all."  The ultimate purpose of these distributive programs, then, is to bind Americans to the national government, to make them dependent on that government.           

A virtue of academics is that they will say clearly what politicians will obscure.  And so our learned friends on the left have posed the issue before us clearly.  For about 100 years, we have sought ways to manage the changes wrought by industrialization.  Those on the left have argued that the concentration of power in corporations brought about by industrialization requires a second revolution, a movement away from the principles of the first American Revolution, a movement away from individuals relying on themselves, their families, friends, and communities, to individuals depending on the government.  Politicians on the left have tended to shy away from talk of revolution, fearing perhaps to associate themselves with such a radical change.  Instead, they and their supporters have focused on specific changes, on Social Security, Medicare, Medicaid, and Affordable Care, for example, not the principle behind such programs, which academic leftists have candidly articulated. 

The piecemeal political approach to revolution worked for a long time.  The real costs were in the future and did not have to be faced.  But now the bills for a system of government dependence are mounting and coming due.  More important, as the pieces of the revolution come together, its character is harder to hide.  It is increasingly evident that it aims to transfer power from the people to the government, so the government can transfer wealth from those it supposes have too much to those it supposes have too little.   The revolution is necessary, the left tells us, to save our independence.  But we see ever more clearly that it aims to makes us dependent on the government.  We see ever more clearly that in the name of saving democracy it will destroy democracy.

As what is at stake becomes clear, it affects our politics.  We currently suffer from political paralysis and bitter political infighting not because of our system or the influence of the media or for any of the other reasons typically offered.  We suffer from paralysis because compromising will no longer work.  Lurking behind the compromises was a fundamental disagreement.  As long as we could afford to, we avoided facing that disagreement.  But as our finances grow threadbare and the threat to free government becomes more evident, the disagreement becomes more obvious, a choice less avoidable.  The learned left is clear again about this too.  "The stakes in 2012 are as high as in any pivotal election in U.S. history (except 1860)" one of them has recently written.

The importance of the election of 2012 is one thing on which we and the left agree.  But we hope its outcome will be a turn away from the distributive constitution toward free government.

Ohio Farmer

Franklin's Fourth

To My Fellow Citizens:

Benjamin Franklin snatched lightning from the sky and scepters from the hands of tyrants, a contemporary once said of him.  The lightning snatching refers to Franklin's famous kite flying in a thunderstorm to prove the connection between electricity and lightning.  As for snatching scepters from tyrants, this might refer to a number of Franklin's activities.  The one most fitting to recall on July 4 is Franklin's connection to the Declaration of Independence.

The principal author of the Declaration, Thomas Jefferson, sent Franklin the draft, asking for his opinion.  Franklin made several editorial suggestions, one of great importance.  Jefferson had written "We hold these truths to be sacred and inviolable; that all men are created equal…"  Franklin suggested instead, "We hold these truths to be self-evident; that all men are created equal…"

Some have seen Franklin's suggested change as an appeal to the scientific language of the day at the expense of the more religious sentiment present in the word "sacred."  Yet Franklin did not object to Jefferson's mention of Providence; nor did he object to the phrase "the laws of nature and of nature's God."  Neither was Franklin one to appeal to authority.  What was his intention, then, in suggesting the phrase "self-evident"?   

To understand this, we must recall the consequence of human equality.  If human beings are equal, it means that no one has a right to rule another.  Neither nature nor God has given to one individual, one family, one race, or one class, the right to rule others without their consent.  To be ruled justly, each individual must consent to be ruled.  Equality is the foundation of self-government, free government.

To call human equality sacred and inviolable establishes how important it is, but it does not tell us how we know it.  But if men are to enjoy free government, to never be ruled unless they consent to it, they must know that they are equal.  This must be the most unquestioned political knowledge a citizen possesses.  It must be an idea that carries its own evidence with it.  It must, in brief, be self-evident.  Franklin suggested inserting the phrase "self-evident" in the Declaration to make the foundation of self-government depend on nothing else but the understanding of self-governing men.

It may seem to us, indeed, that human equality is self-evident, heirs as we are to the revolutionary accomplishments of men like Franklin.  But is it really self-evident?  Reflect for a moment on the wonderful irony at the heart of the Declaration:  probably the two most intelligent and most variously and spectacularly talented of our statesmen joined in the founding of our nation by declaring themselves self-evidently equal to all others.  Do not the evident inequalities of men like Franklin and Jefferson call into question the supposed self-evident equality of men?

In fact, they do not.  What is self-evident when we consider Franklin is not that he was equal in intelligence or talents to other men.  This is most self-evidently not the case.  What is self-evident, however, is that no matter how superior Franklin was to others, he was still a human being.  Although surpassingly intelligent, he was not all-knowing.  Although exceedingly industrious, he was not all-powerful.  He did not possess the attributes of a deity.  He was human and self-evidently heir to human limitations and frailties.  Due to his evident abilities, Franklin led every enterprise he was associated with.  Due to his self-evident humanity, he did so only with the consent of those he led.

Franklin's insertion of the term "self-evident" into the Declaration was a critical improvement of the text.  Considering its meaning will always bring us to a better understanding of equality and self-government.  In offering this improvement, Franklin was continuing—when he was 70—his life-long activity as an improver, as a man who sought better ways to do things, from cleaning streets to testing the forces of nature.  This was in keeping with the argument of the Declaration.  If men were equal, then they were not to be judged by their family, religion, race, or class but by what they did.  Franklin discouraged would-be immigrants to the United States who had only their birth or family name to recommend them.  In America, he wrote, "people do not enquire of a stranger, what is he? but what can he do?"

Franklin's life, shaped by the knowledge that a man should be judged above all by what he does, embodied the principles of the Declaration before it was written.  This is why he is often called the first American.  By embodying these principles, Franklin was also manifesting most tangibly his equality with other men.  When he arrived in Philadelphia, Franklin was a nearly penniless 17-year-old.  He had only his talents and industry to rely on.  In this, he was like all men.  Nor could he predict, because it was not in his power, what would result from applying his talents industriously.  In this, he was also like all men.  He could not be assured of achievement, he could only work so as to deserve it. 

More than his editing of the text, Franklin's life was his greatest contribution to the Declaration.  He is the model of an American.  His life not only embodied the Declaration, it vindicated its principles and the hopes of those who drafted it and of those who then and ever after were inspired by it.  Franklin first and above all others showed the good that a free man, a self-governing man, could do.  And so in its own way does the life of any citizen who following Franklin strives to do the best no matter what he has.  Such a life may not snatch lightning from the skies but it will continue to snatch scepters from tyrants.

Happy Fourth,

Ohio Farmer

 

A Statesman in Congress

To the Members of the 112^th Congress:

This Friday marks the 160th anniversary of the death of Henry Clay (June 29, 1852). With only a few years excepted, Clay served in the House of Representatives and the Senate from 1803 until his death almost 50 years later. When he died, he was the most famous American of his day and received many, many eulogies. One of them came from a little-known, former one-term Congressman from Illinois named Abraham Lincoln, who eulogized Clay as "my beau ideal of a statesman."

In calling Clay a "statesman," Lincoln chose his words carefully, and he used a term we don't hear much anymore. But it's one we must recapture if we are going to understand the kind of people we need in public office to revitalize the American experiment in constitutional self-government.

To recapture the idea of the statesman, we must, among other things, recall how to distinguish it from the idea of the "leader" bequeathed to us by the Progressive Movement over a century ago. "Leader" is an old word with a respectable heritage—Thomas Jefferson referred to George Washington, for example, as "our great leader."  But the Progressives, beginning with Woodrow Wilson, poured new wine into this old bottle, and our public discourse has been drinking this Progressive vintage ever since.

Progressives who talk about "leadership" also talk about "vision."  They mean that a leader somehow must have a vision, a vision of the future into which he will lead his followers. A progressive leader moves people away from where they are toward some new goal divined by the leader—actually, toward goals that must constantly be renewed as we make endless "progress" into an always receding future. To lead the country into the progressive future requires leading it away from the supposedly outmoded goals, principles, and institutions of the American Founding.

The statesmanship of Clay (and Lincoln after him) was guided by the goals set out in the Declaration of Independence and the Constitution: to protect the "unalienable" rights of every individual to "life, liberty, and pursuit of happiness"; and "to establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."  A statesmanlike pursuit of these goals requires "vision," too, but vision of a sort very different from the progressive variety.

Statesmanlike vision is part of the virtue that Aristotle called prudence. Prudence does not mean "caution"; it means knowing what the right goals are and seeing how to move toward them in the particular circumstances that you face. The prudent statesman has great political vision, like a great quarterback who can see the whole field and make adjustments at the line of scrimmage. Having that kind of larger outlook can be hard in Congress, where there are so many particular interests and passions always trying to narrow your view. But, as Lincoln said, Henry Clay had that broader statesmanlike perspective: "Whatever Mr. Clay did, he did for the whole country. In the construction of his measures he ever carefully surveyed every part of the field, and duly weighed every conflicting interest."

The right kind of compromise is often part of the statesman's prudence. On at least three occasions (the last in 1850), Henry Clay cobbled together a deal in Congress that held a shaky country together. For this he earned the title "The Great Compromiser"—not because he gave in on his fundamental principles but because his compromises preserved the Union and kept the spark of liberty alive. His deals had their critics, and some of their criticism is not off the mark. But Clay was willing to make imperfect compromises because he knew that in politics consequences matter. It's not enough simply to have good intentions: the right action is also the one that has the best possible results. The statesman's compromise is one that, without violating the larger principles at stake, gets as much good as possible out of imperfect circumstances.

To achieve what Clay achieved in his long career required qualities that set him apart from his sometimes more seemingly successful political competitors. As Lincoln said:

Even those of both political parties who have been preferred to him for the highest office, have run far briefer courses than he, and left him, still shining high in the heavens of the political world. Jackson, Van Buren, Harrison, Polk, and Taylor, all rose after, and set long before him. The spell—the long enduring spell—with which the souls of men were bound to him, is a miracle. Who can compass it? It is probably true he owed his pre-eminence to no one quality, but to a fortunate combination of several. He was surpassingly eloquent; but many eloquent men fail utterly; and they are not, as a class, generally successful. His judgment was excellent; but many men of good judgment, live and die unnoticed. His will was indomitable; but this quality often secures to its owner nothing better than a character for useless obstinacy. These then were Mr. Clay's leading qualities. No one of them is very uncommon; but all taken together are rarely combined in a single individual; and this is probably the reason why such men as Henry Clay are so rare in the world.

Statesmen like Henry Clay are rare, but sometimes our Republic needs them. They don't try to lead us to a new political ideal; they help us see how to return to the principles of our Founding and Constitution. They know that the people are supposed to lead themselves by adhering to the Constitution they set up, not by following a leader as he envisions the next goal revealed to him by the always progressing "living constitution." In helping to keep our Founding principles alive in the minds of the American people, they render a noble and glorious service both to our country and to all mankind.

They come to "belong to the ages," as someone said less than a generation later of the little-known Congressman who once eulogized Henry Clay.

Ohio Farmer

 

Material and Spiritual Security

To My Fellow Citizens:

In an earlier letter, I described and criticized the view that our Constitution gives the government the power and duty to provide us with material security because such security is necessary for democracy.   In fact, as I argued, economic insecurity does not deprive any one of their rights or prevent them from exercising them.

In addition to being wrong, the argument that to ensure democracy the government must ensure our material security is paradoxical.  To even attempt to provide material security, the government would have to have such power over our lives and livelihoods that the government would have all the freedom and citizens none.  This is hardly what we call democracy and so, paradoxically, such an effort to preserve democracy destroys it.

If we consider the claim that government must provide material security in light of the founding of our country, however, we arrive at another and deeper paradox.  The great enemy of democracy at the time of the Founding was not the effort to provide material security but the effort to provide spiritual security.  For more than a thousand years, governments had claimed a right to rule based on divine sanction.  They claimed to be God's rulers on earth, and in the name of carrying out God's will they dictated what their subjects could think and do, what they could wear or with whom they could associate.  They did this, they claimed, for the good of their subjects, to ensure their salvation, their spiritual security.  They thought not at all about their subjects' material security.

The Founders noted, as others had before them, that although the rulers did not care about their subjects' material security they did seem concerned about their own.  They ensured it by wringing it from the labor of their subjects.  Talk of providing spiritual security was a pretense for injustice.  Whatever may have been the good intentions behind the effort to provide spiritual security, such is human nature that inevitably the vast powers necessary for such a purpose were put to tyrannical ends.  As I remarked in a previous letter, "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 yet act merely in their own self-interest."

Faced with spiritual tyranny, the Founders established a government that promised spiritual liberty.  Of material security, they thought not at all and the government they established promised nothing.  Human life had been too poor for anyone to have thought of material security as a goal.  The Founders hoped for prosperity, certainly.  They believed that the creative power and energy liberated by their new government would increase it.  But they understood that human life was so needful and precarious that providing material security was something no power on earth could do.

But the new regime of liberty proved good almost beyond imagining at allowing men to produce wealth.  Within little more than 100 years, it became possible for some to think distributing wealth more important than producing it; conquering want a possibility; sharing in the conquest, each citizen's right; and ensuring it, a government's duty, for which it should be given the necessary power.  Paradoxically, such thinking was possible only because of the freedom and prosperity that such a new conception of government would destroy.

It may seem an exaggeration to say that giving government the power to provide material security will extinguish freedom.  But think of the endless needs of human beings and thus the endless demands for security or freedom from those needs.  Think of the already vast power of technology, extending now into the very intricacies of human biology.  Think of the intrusive power of government and how power corrupts.  Think of combining these powers on the assumption that they must satisfy those needs and you can easily imagine the threat to freedom.  Indeed, in a final paradox, the claim that government must provide material security would lead to a government with tyrannical powers exceeding those of the spiritual tyrannies the Founders fought to overcome.

No doubt many of those who speak of government providing material security are well-intentioned.  But we know where the road paved with good intentions leads.   We need to remind the well-intentioned that freedom and insecurity are inseparable.  That we may run, means we may fall.  That a business may start up, means a business may fail.  To remove this insecurity, we would have to remove freedom itself.  We cannot have security, spiritual or material, unless we give up freedom.  But, wrote Jefferson, "almighty God hath created the mind free."  It is that freedom and the prosperity and happiness it makes possible that is the only true compensation for the insecurity that is unavoidably part of human life.

Government cannot give us either material or spiritual security.  No government would be free that attempted it.  To the extent we may possess either kind of security, we must earn it by hard labor.  In truth, all the American Founding promised was the freedom to engage in such unending labor, to the measure of our abilities and the limit of our time.  It is not common, especially in an election year, to speak in such a way about the promise of American life.  But if we remember that to speak otherwise is to flirt, however innocently, with tyranny, we will remember as well the beauty and true greatness of that original promise.

Ohio Farmer

 

Our Constitution is Color-Blind

To My Fellow Citizens:

A prominent theme of these letters is that—to inherit and pass on to the next generation the legacy of freedom bequeathed to us—Americans must understand and take to heart the idea of political freedom that has been at stake in all the great episodes of American history. Today is a fitting time to reflect on one of those episodes.

On June 7, 1892, Homer Plessy boarded a train in New Orleans bound for Covington, Louisiana. When the conductor saw his ticket, he demanded that he move. When Plessy wouldn’t, he was arrested, tried, convicted, and fined $25. His offense? Violating Louisiana's "Separate Car Act" by sitting in a "whites only" railroad car. Plessy and his supporters appealed the case all the way to the U.S. Supreme Court, claiming that Louisiana's "Jim Crow" law violated the 14th Amendment to the Constitution, which prohibits a state from denying "equal protection of the laws" to any person within its jurisdiction.  Congress had sent the 14th Amendment to the states for ratification on June 13, 1866,146 years ago today.

Unfortunately, the Supreme Court didn't agree with Mr. Plessy, and voted by a 7-1 margin that racially segregated facilities were permissible under the Constitution, as long as the facilities were "separate but equal." It was one of the worst decisions the Court ever made. But it did raise a question that Americans – and the Supreme Court – are still asking: What does it mean to be equal under the law?

The meaning of equality had been the central question for Americans ever since our Founders first declared in 1776 the self-evident truth that "all men are created equal." In previous letters, I have noted that the Founders understood equality to mean that everyone has the same natural rights – that is, everyone has the same God-given rights to life, liberty, and property. We should all be free from violence to our life and health, be free to run our own lives, and be free to enjoy the fruits of our labor. Obviously, slavery violated all of those principles and had to be abolished if America was fully to live up to them. In 1865, as a result of the Union victory in the Civil War, it was abolished by the 13th Amendment. But the submission of the 14th Amendment to the states in 1866 raised a different question: once slavery is abolished, how does our basic natural equality translate into law and the Constitution? What does it mean to have "equal protection of the laws," as the 14th Amendment says?

It's not just a historical question. The meaning of constitutional equality is being debated again by the current Supreme Court, which is going to decide soon whether state universities can consider race in the application process, especially by giving a "plus" to certain people because of their race. Does that violate "equal protection of the laws"? It does, and to understand why, we need look no further than the dissent of the one Justice who voted in favor of Mr. Plessy so many years ago.

In his great dissent, Justice John Marshall Harlan argued that "separate but equal" could never be justified under the Constitution. For one thing, "the statute… interferes with the personal freedom of citizens…. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each."

In response, however, Louisiana claimed that states can interfere with personal freedom if necessary for public safety. For example, in order to keep the roads safe, speed limits restrict how fast we can drive. Or more to the point, the law prevents some people from driving (for example, 14 year olds) whether or not they are actually qualified. No one says that those laws are unreasonable, unequal, or unconstitutional. Louisiana claimed the same for its segregation law: it was designed to maintain public order by keeping the races separate. Justice Harlan pointed out, however, that "every one knows that … [t]he thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary." 

But Harlan knew that as a matter of constitutional principle, it was not enough to lay bare Louisiana's racist motives. He had to show that even if the legislature had good intentions, it simply did not have the power to make a law that segregates by race in this way. "In respect of civil rights, common to all citizens," Harlan wrote, "the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights." Why not? Because, he said,

in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

We must understand Harlan’s words. "Our Constitution is color-blind" because, speaking generally, the law – government – does not even have the power to see a person's race; for the purposes of government (the main purpose being to secure the rights of the governed), race is irrelevant. As the Declaration of Independence says, "Governments are instituted among men" to secure individuals' natural rights, which are part of every person as a human being and have nothing to do with race. In order to protect people's rights, therefore, government does not need the power to "know" anyone's race, as Harlan says. So it does not have such power.

So when the 14th Amendment declares that every person should have "equal protection of the laws," it means that the law must treat everyone the same without regard to race. The only exceptions would be the commonsensical ones, when it is necessary for government to consider race in order to protect citizens' natural rights, as, for example, when police departments must hire an undercover officer of a specific race to infiltrate an ethnic gang. But these are practical exceptions that do not apply to Homer Plessy's case in 1896 or to college admissions today.

It's been 146 years since Congress sent the 14th Amendment to the states for ratification. It was designed to complete the work of the Founders and translate the principle of equality of natural rights into the fact of "equal protection of the laws." Since 1866, that full equality has become more and more part of the character of the American people themselves. Now it is up to the Supreme Court – more importantly, up to us – to live up to our color-blind Constitution, rid the law of race, and finally, fully vindicate the courage of Homer Plessy and the wisdom of John Marshall Harlan.

Ohio Farmer

 

The Distributive Constitution

To My Fellow Citizens:

From my first letter, I have spoken of the need for attention to the Constitution if we are to continue to enjoy the blessings of limited government. Now the call for constitutionalism has been sounded on the left, in hopes that Americans will come to enjoy the blessings of government without limits.  Well, this is why we're having the national conversation we are having.

In a leading journal of leftist opinion, a widely published law professor at a major university recently criticized those who see the Constitution as a document that limits the power of government.  He argues instead for what he calls a "Distributive Constitution." In this view, the Constitution gives all three branches of the national government the right and duty to ensure that all Americans have a decent livelihood, and that no gross economic inequalities mar American democracy. 

To ensure these things would indeed require a government of unlimited powers. It would need to be able to control virtually all aspects of the economy—for example, to ensure employment for all.  It would also need to define "gross economic inequality" and take from everyone who had too much according to this definition, in order to give to those deemed to have too little.  This distribution of wealth is the core of the distributive constitution.

The Constitution, of course, gives none of the branches of the national government any such powers.  What is the argument that they should have these powers?

It is a version of the century-old progressive argument, and it goes like this:  Gross economic inequality leads to political inequality.  A democratic form of government is not possible if citizens do not have "economic independence and material security."   Americans had this when they were a nation of farmers, each living on and drawing his substance from his own land.  Each farmer was his own boss and in that way was independent and free.  Industrialization and urbanization destroyed this way of life and rendered working Americans "wage slaves, ciphers and servants, ill-equipped for democratic citizenship."

To rectify this situation, according to the progressive argument, the national government had to step in.  It did so principally by legalizing and supporting unions and by slowly establishing assistance programs such as social security and unemployment benefits.   The Second Bill of Rights, proposed by FDR in 1944, was an important expression of progress, including as it did the rights to a job, a house, and medical care, among others.

In sum, the Constitution of limited powers must become the distributive constitution of unlimited power because the ultimate purpose of the Constitution is to ensure democracy.  If "economic independence and material security" are necessary for democracy, and the distribution of wealth is necessary to ensure economic independence and material security, then the Constitution must become the distributive constitution to ensure such conditions. As paradoxical as it sounds, a national government of unlimited power is necessary for democracy.

This argument—which represents an influential segment of opinion in the country—is not merely paradoxical; it is wrong. Consider first how it understands the situation of Americans.  If we rely on the private sector, we are wage slaves.  The proposed alternative is dependence on the national government.  It will guarantee us education, jobs, a house, medical care, and pensions.   It will take care of us from cradle to grave, as the saying goes.  Why, we must ask, is dependence on government better than dependence on private wealth?  Do we know of a government with the powers proposed for the distributive constitution that has not abused those powers?  Does not the grant of Federal money always come with restrictions and requirements about what recipients can and cannot do?  In this light, the distributive constitution appears incompatible with both democracy and freedom.

Not only will this progressive solution produce the problem progressives hope to avoid (the destruction of democracy), it is also based on a misunderstanding of the foundation of democracy. It is not true that industrial workers, dependent on the labor market, were deprived of their rights.  On the contrary, protected by the secret ballot, they voted in large numbers and elected officials who voted for their views.  Our leftist law professor cites any number of federal laws favorable to the interests of industrial workers. How did these laws come to be if the workers, by that very status, were deprived of their rights and America was run by an oligarchy hostile to the interests of most Americans?

Democracy does not require, then, that workers and all Americans be dependent on the government rather than the free market.  On the contrary, in the market there is a wide variety of bosses and the freedom to change jobs or start one's own business.  If we were all dependent on the government, there would be only one boss and no freedom to escape his control.

Nor is it true that owning a family farm guaranteed material security.  Many homesteaders failed and lost their farms.  Drought and pests destroyed crops.  Farm life was hard and always precarious.  But the insecurity of this life did not destroy the rights farmers enjoyed as free citizens.  Material security is not necessary for democracy. Fortunately so, since material security is impossible for any power on earth to guarantee. 

We must conclude, then, that material security and independence from the market are not necessary for democracy.  It follows also that the distribution of wealth and the distributive constitution are not necessary for democracy, either.  Indeed, on the contrary, in turning our government from one of limited powers into one of unlimited power, the distributive constitution poses a great danger to democracy.

Ohio Farmer

Liberty or Soft Despotism

To My Fellow Citizens:

In an earlier letter, I remarked that Alexander Hamilton's view of a commercial republic has, for the most part, prevailed in the United States. Hamilton believed that such a commercial republic was the best means of protecting the natural rights of its citizens to their lives, liberty, and property, which constitute the very basis of prosperity.

Hamilton's view was largely adopted by the Whig Party in the 1830s and was the cornerstone of the economic program advocated by Henry Clay, whom Abraham Lincoln, an ardent Whig during his early political career, called his "beau ideal of a statesman" (on a forthcoming anniversary, we will reflect on the statesmanship of Clay in his many years as an American legislator). For Hamilton, Clay, and Lincoln, the key to prosperity is freedom. In his eulogy on Clay, Lincoln observed that:

Mr. Clay's predominant sentiment, from first to last, was a deep devotion to the cause of human liberty—a strong sympathy with the oppressed everywhere, and an ardent wish for their elevation. With him, this was a primary and all controlling passion. Subsidiary to this was the conduct of his whole life. He loved his country partly because it was his own country, but mostly because it was a free country; and he burned with a zeal for its advancement, prosperity and glory, because he saw in such, the advancement, prosperity and glory, of human liberty, human right and human nature. He desired the prosperity of his countrymen partly because they were his countrymen, but chiefly to show to the world that free men could be prosperous.

The basis of the commercial republic that Hamilton, Clay, and Lincoln envisioned was a just, generous, and prosperous system of free labor that "opens the way for all — gives hope to all, and energy, and progress, and improvement of condition to all." The genius of free labor, Lincoln held, was that "when one starts poor, as most do in the race of life ... he knows he can better his condition."

Lincoln conceded that not all individuals are able to improve their lot in a commercial republic. But "if any continue through life in the condition of the hired laborer, it is not the fault of the system, but because of either a dependent nature which prefers it, or improvidence, folly, or singular misfortune." The fact is that a system of free labor "allow[s] the humblest man an equal chance to get rich with everybody else" and "leave[s] each man free to acquire property as fast as he can."

Such a system has a place for government action but one that is limited in scope. "The legitimate object of government, is to do for a community of people, whatever they need to have done, but cannot do, at all, or cannot, so well do, for themselves — in their separate, and individual capacities," e.g., national defense and the maintenance of good domestic order (the military and police functions); the administration of justice, including protection of property rights and enforcement of contracts (the court system); and limited investment in and maintenance of "public goods." Such a government leaves to individuals "the sacred right to regulate their own family affairs" and to "communities ... [the right to] arrange their own internal matters to suit themselves" without undue government interference. "The proposition that each man should do precisely as he pleases with all which is exclusively his own" was for Lincoln the very foundation of justice.

Lincoln saw free labor as the antidote to the great problem of the time: slavery. While a system of free labor was based on the assumption that industrious, honest, and sober men would freely pursue their own interests, slavery was based on the assumption that the vast majority of laborers were indolent and without ambition, "that nobody labors unless somebody else, owning capital, somehow by the use of it, induces him to labor."

Contrast the view of republican independence advanced by Hamilton, Clay, and Lincoln with the story of "Julia," a cartoon figure made famous in the country in recent weeks to demonstrate what a female citizen today—if we can call her that instead of "subject"—owes to the benevolent policies of the modern American government. "Julia" represents what Alexis de Tocqueville called "soft despotism." Tocqueville understood that democracy is susceptible to a certain form of tyranny: the rule of a "benevolent" government, catering to the public's needs and whims in exchange for their freedom, which creates a servile people dependent on the largesse of government, happily acquiescing in the loss of liberty as long as the government fulfills their material desires.

The United States stands at a crossroads. Will we choose the path to prosperity represented by the commercial republic based on a just, generous, and prosperous system of free labor? Or will we succumb to Tocqueville's "soft despotism" and the servility it entails?

Ohio Farmer

Equality and Race Continued

To My Fellow Citizens:

In a recent letter we discussed the challenge of making republican government succeed in a racially plural republic, a challenge most Americans before 1860 considered insurmountable. One of the long arcs of American history since then is the growing recognition that while sustaining such a nation was daunting, all the alternatives to it were impossible. Thus, America would have to find a way to make it work as well as it could be made to work.

The beginning of this arc can be seen in Abraham Lincoln’s experience. He had become a nationally prominent politician in the 1850s, by insisting that America’s founders had meant to place the institution of slavery in the “course of ultimate extinction,” a course from which the nation must not depart. “Ultimate,” however, is an elastic term. In his fourth debate with Stephen Douglas, Lincoln conceded, “I do not suppose that in the most peaceful way ultimate extinction would occur in less than a hundred years at least….” 

This was a reflection, among other things, of Lincoln’s estimation of American public opinion. In a country founded on the consent of the governed, it is impossible for a democratic politician peacefully to do more than he can persuade his fellow citizens to join him in doing.  That Lincoln’s election was considered an intolerable provocation by the slave-holding states that seceded from the Union demonstrated just how far public opinion had to move in America before slavery could be extinguished “in the most peaceful way.”  As Georgia’s Alexander Stephens, who would become vice president of the Confederate States of America, said in 1861, “Our new government is founded upon … the great truth that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition.”

When war was forced upon him by the seceding slave-holding states, Lincoln took the occasion of the war to make the ultimate extinction of slavery much more immediate. As a measure of military necessity he issued the Emancipation Proclamation on January 1, 1863, less than two years into his first term of office, declaring that all slaves in states rebelling against the federal government were “forever free.” This was one step toward the ultimate extinction of slavery; the 13th Amendment to the Constitution, prohibiting slavery throughout the nation, was the next.

Lincoln’s assassination, less than two months after the start of his second term, means that we can only speculate about the further steps he would have taken towards establishing a democracy that included freed slaves. In his last public speech, given four days before he was assassinated, Lincoln spoke favorably about readmitting Louisiana to the Union, based on its newly adopted state constitution, “giving the benefit of public schools equally to black and white, and empowering the Legislature to confer the elective franchise upon the colored man.” For Congress to reject Louisiana’s application, Lincoln argued, would be to say to that state’s blacks, “This cup of liberty … we will dash from you, and leave you to the chances of gathering the spilled and scattered contents in some vague and undefined when, where, and how.”

The previous month, at his second inaugural, Lincoln had urged Americans to “bind up the nation’s wounds” and “to do all which may achieve and cherish a just and a lasting peace, among ourselves.” It became apparent in the years after Lincoln’s death, however, that there was a profound antagonism between the goals of racial unity and sectional unity. Southern whites, defeated and humiliated, made clear that they were implacably opposed to federal policies that would guarantee blacks’ civil and voting rights. For the first years of Reconstruction the policy of the Republicans who controlled Congress was to confront and overcome this opposition. Federal troops remained stationed in the defeated states, protecting blacks’ rights and allowing legislatures with black representatives, sometimes comprising majorities, to convene.

Southern resistance, manifested in the rise of paramilitary groups like the Ku Klux Klan, forced northerners to decide whether they were prepared to commit troops and resources, to the extent and for the duration required, until southerners finally accepted former slaves as equal citizens. In the aftermath of the election of 1876, a decade after the end of the Civil War, northerners threw in the towel: Reconstruction ended with the abolition of slavery, but also with the federal government acquiescing in white southerners deciding how and whether southern blacks’ rights would be recognized. The imperative of sectional reconciliation had triumphed over the imperative of enforcing the Constitution, explicitly color-blind after the ratification of the 14th and 15th amendments. As Lincoln had feared, blacks’ hopes for realizing liberty were postponed to some vague and undefined when, where, and how. It took most of the ensuing century before the Civil Rights movement impelled the nation to make its commitment to color-blind citizenship specific and immediate. A future letter will examine the democratic principle of equality in the wake of that historical watershed. 

Ohio Farmer

To Provide for the Common Defense

To My Fellow Citizens:

In a previous letter I commented on our self-regarding character as a people, arguing that this character was the only secure foundation for a constitutional government, a government of limited powers.  As we respect ourselves, we will take care of ourselves and those around us.  In doing that, we will have less need of the heavy hand of government.  We will more fully enjoy the blessings of liberty and the happiness that is their fruit.

The self-regard of the people is essential not just to their happiness, however.  It is also essential to their safety.  Consider our current situation.

Long before 9/11, we knew that in a free society such as ours, individuals and small groups who mean to do us harm could operate among us, protected by the same liberties that protect us.  As this danger has increased, the government has responded, as it has always, by increasing its power to gather information on citizens and by restricting their liberties.  How far can this go?  As technology puts more and more power into the hands of smaller groups and even individuals (think of the increasing power individuals now wield to manipulate disease-causing viruses), how much more intrusive will government have to be in order to protect us?  Is there an alternative?

If the threat we face comes from another state and its military forces, then our government and our military forces are the best response.  But if the threat is living among the people, then the people are themselves the best means to meet it.  Even if the government pursued security at the cost of all liberty, its agents would not be as well positioned to identify dangers as the people in their various neighborhoods, communities, and workplaces.  The people are already doing this, and should be encouraged to increase their efforts.  The more the people are actively involved in their own defense, the more likely it is that they will be safe, and the less necessary it will be for them to sacrifice their liberty.  The government cannot make the people defend themselves. Still, the self-regarding people I described in my earlier letter, who take care of themselves and others in crises, are the sort of people, we must hope, who will defend themselves, if not prohibited from doing so.

In speaking of a people active in their own defense, we touch on the hallowed American tradition of the militia, of citizen soldiers ready and willing to defend themselves.  But as always, we must not flatter ourselves.  Citizen vigilance has often led to abuses, to the destruction of the safety and freedom of innocent citizens.  Government vigilance has also led to abuses, however, and only citizen vigilance, constrained by the unbiased application of our laws, will increase the capacities and freedom of Americans.    

Increasing our safety by restricting the power of government is not what we have done in the past.  But as our circumstances are new, so should our thinking be new.  Consider another example.  Most of the infrastructure in our country—phone and electricity lines, gas pipelines, computer networks, railroads—is privately owned.  All of this infrastructure is now, as it has always been, a possible target of attack.  But because all this infrastructure was not centrally planned by the government, because it grew in response to individual initiative, it is redundant and complex.  No one kind of attack can imperil it.  Various utility companies, for example, use different kinds of software to run their networks.  Some have modified what they have bought for their own special circumstances.  No one computer virus or hacking exploit can compromise all these systems.  If the government, in the name of increasing security or efficiency, were to impose one kind of system on these utilities, this would in fact only decrease our security.  The uniformity of central control would make the job of attackers much simpler.

The preamble to the Constitution speaks of establishing the government to provide for the common defense.  For most of our history, increasing the power of government was essential to that defense.  Now, limiting that power is just as important.

Ohio Farmer

The Reason of the Public

To My Fellow Citizens:

Every year, a lot of people think up all kinds of new constitutional amendments. Politicians and intellectuals propose them often enough: one professor, for example, recently suggested 23 new ones. It’s been 20 years, however, since America ratified the last amendment on May 7, 1992.  Is that a good thing? It seems worth reflecting on that question in our continuing effort to equip ourselves to inherit and pass on (or even enhance?) the great American heritage of political freedom.

Thomas Jefferson hoped that the entire Constitution would be changed or re-ratified every 20 years. We should not, he wrote, look upon a constitution with "sanctimonious reverence." It is not "like the arc of the covenant, too sacred to be touched"; it is simply a means to achieve the great ends of a free society laid out in the Declaration of Independence. "The earth belongs always to the living generation," Jefferson argued, and "laws and institutions must go hand in hand with the progress of the human mind."

This is a powerful argument, but it did not convince Jefferson's friend and life-long political ally, James Madison. Madison shared Jefferson's view that while the Constitution is the how of American government, the Declaration is the why. The Constitution is important as the means by which we Americans achieve the moral and political purposes declared in 1776.

But unlike Jefferson, Madison had been at the Convention in 1787, and he knew that the "miracle at Philadelphia" was not only that the country conceived a constitution there. It was that our nation as a whole began to acquire constitutionalism – the idea and habit of steadfast adherence to the rule of law and to a written document that guides us as a people.

Madison knew that the people must have a constitutional disposition if they were to keep their authority from degenerating into mere willfulness. The Constitution is supposed to limit the federal government; but it is also supposed to show the people their limits – that their government cannot do anything they want, but only what the Constitution permits. It cultivates good habits of political moderation and lawfulness by reminding the people that there is something above them and their will – justice. It says to them that if they want to keep their authority, they must always exercise their power according to "the laws of nature and of nature's God," as the Declaration says. To be a Declarational people, Madison knew, Americans must always remain a constitutional people.

As a constitutional people, we must be careful about changing the Constitution because while the people make the Constitution, it also makes the people. As Madison said in Federalist 49, frequent constitutional change "would, in great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability." Without such sober reverence, the "PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public that ought to control and regulate the government." 

This means that every time someone proposes to change the Constitution, he is really proposing to change the character of the American people. Sometimes the proposed change is an improvement that makes the people more like their true selves – that is, it makes the people live more fully according to our fundamental principles. The 14th Amendment, for example, has molded the self-evident truth that "all men are created equal" into a political habit; we are now a people who understand that no government – state or federal – can deny people "equal protection of the laws." The amendment has made us more republican, in the proper sense of the word.

But constitutional change could work the other way. Consider the increasingly popular idea of amending the Constitution to replace the Electoral College with a direct popular vote for president. This would also affect the character of the people, and not in a good way. The will of the numerical majority would become the constitutional rule for filling our highest office, strengthening in the public mind the false idea that a simple majority is always the right way to do things. In addition, all citizens would be lumped together into one undifferentiated mass, which denies that there are any constitutionally respectable differences of interest or attachment between, for example, people in Ohio and people in California. But we really do have such legitimate interests and attachments, as we can see in our federal system. This change would cause Americans to become more inclined to regard all particular interests and differences with greater suspicion, and to have a weaker attachment to our states in favor, naturally, of a greater attachment to the federal government.

Not surprisingly, abolishing the Electoral College is usually favored by those who distrust differences between human beings and who want a more energetic federal government devoted to reducing those differences. From Madison's point of view, these people share the vice of the "[t]heoretic politicians, who… have erroneously supposed that by reducing mankind to a perfect equality in their political rights… they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions" (Federalist 10).

Being wary of tampering with the Constitution does not mean that we should confuse it with the Ark of the Covenant. Jefferson was right: we can touch it, and we won't die. We've already done that 27 times. We should always consider the Constitution in light of its higher ends – above all, securing every person's natural rights to life, liberty, and property, and governing ourselves as free men and women. But Madison was also right: if we are going to achieve the purposes of the Declaration, we must treat the Constitution with real reverence, and think hard about how any changes to it would change the very character of our country.

The 27th Amendment was ratified only 20 years ago. But it was originally proposed way back in 1789 as part of the original Bill of Rights. It took 203 years to be ratified – a long time, to be sure. But that probably would not have bothered the man who first proposed it, James Madison.

Ohio Farmer

 

Equality and Race

To My Fellow Citizens:

Recent controversy over the killing of a black teenager in Florida reminds us that America’s racial dilemmas did not end with the election of our first black president; they evolved. The episode is the latest intersection of equality, the general principle of democratic politics everywhere, and race, the particular issue that has been the greatest political challenge throughout America’s history.

Abraham Lincoln, who thought more profoundly than any figure in our history about the intertwined questions of equality and race, took the questions up in 1857 in a speech criticizing the Supreme Court’s Dred Scott decision. The Court, and politicians like Lincoln’s great opponent Senator Stephen Douglas, who defended the Court’s decision, argued that when the American revolutionaries famously wrote that “all men are created equal,” they did not mean to include black men (this is a view still widely insisted on by many academics and intellectuals who write on these subjects).  Lincoln denied this.  As he said:

Chief Justice Taney … and [Senator] Douglas argue that the authors of [the Declaration] did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another.

It is worth quoting Lincoln at length explaining what the authors of the Declaration of Independence did mean:

I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness".… They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.

Establishing a true understanding of equal human rights in the public mind was—and is—a mountainous challenge in itself. Giving the best possible effect to that truth in the “circumstances” in which the country finds itself at any given time can be an even greater challenge. Lincoln wrote that the Founders intended the enforcement of Americans’ equal natural rights to “follow as fast as circumstances should permit.” As he said repeatedly throughout the 1850s, this meant, among other things, that the Founders intended to put slavery in the “course of ultimate extinction.”

In Lincoln’s time, he and Stephen Douglas were politicians competing at the highest levels of American politics for the same mid-19th century voters, who were overwhelmingly white and overwhelmingly opposed to sharing their political and social rights with blacks. To gain advantage with such an electorate, Douglas—in Lincoln’s words— sought to exploit the “natural disgust in the minds of nearly all white people, to the idea of an indiscriminate amalgamation of the white and black races.” He did this by saying of those who, like Lincoln, affirmed that the declaration’s “all men are created equal” meant all men, that they “do so only because they want to vote, and eat, and sleep, and marry with negroes!”

Appealing to the same voters, Lincoln protested “against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone. In some respects she certainly is not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.” The only “preventive”—if there was any preventive—for amalgamation of the white and black races, he said, was the “separation of the races.” The only way—if there was any way—to effect the separation of the races was “colonization,” transporting “the African to his native clime” or to some other foreign parts that he would consent to go to.

With such appeals, Lincoln got himself elected president.  Secession and Civil War followed. The circumstances of the war made it possible for Lincoln to promote the immediate abolition of slavery; this led, quickly, to the constitutional guarantee of black citizenship and voting rights and, slowly, to the federal enforcement of those guarantees. After a century of the uncertain and painful unfolding of circumstances, in1964 Congress outlawed the local ordinances and private practices that required blacks to eat in separate sections of restaurants and sleep in separate sections of hotels. Three years later the Supreme Court ruled unanimously that legal restrictions on marriage, if based on race, were unconstitutional.

Nothing changes circumstances like war. By the time the Civil War ended it became clear that all the options Americans had been exploring were dead ends. We were not going (though the rebelling states tried) to split into two countries, one free and one slave. We were not going to exist in perpetuity as one country in which we agreed to disagree about slavery. A house divided against itself, half-slave and half-free, could not stand, as Lincoln had predicted. And we were not going to end slavery only to send the descendants of Africans who had been brought here against their will throughout the 17th and 18th centuries back to Africa or on to some other part of the world. The only option left was the one that most white Americans before the Civil War considered morally intolerable and practically impossible: find a way to make American democracy work in a nation where different ethnic and racial groups formed one people. Some thoughts on the course of that endeavor will be the subject of a future letter.

Ohio Farmer

 

We the People

To My Fellow Citizens:

Our Constitution begins with the phrase "We the people."  The people precede the Constitution.  They, through their representatives, wrote it and then voted to adopt it.  Following generations amended it.  Since we can amend the Constitution, ultimately we cannot depend on it unless we ourselves are dependable.  The people are the foundation upon which the legal edifice of the Constitution rests.  No matter what the Constitution says, no matter how clever its provisions, it will never be sound and constitutional government secure, if the people are not sound.

We often hear another account of the relationship between the people and the Constitution.  This account presents the Constitution as a necessary constraint on the people.  The people are a collection of self-interested individuals, perhaps even self-indulgent.  If not for the rule of law, the authority and the procedures of the Constitution, who knows what they would do? This was a view held by some at the time of our Founding.  It is a view still held today.

This must disturb those who love liberty.  For if the people are weak, and divided by self-interest, then the government must be strong.  For what else could control such people and direct them to useful ends?  It is also a paradoxical view of the Constitution, since some of those who complain of the self-interestedness of the people also praise limited government.  But, again, if the people are weak and divided, does this not encourage their government to be strong and to take over responsibilities for which the people are supposedly unfit?

How we, the people, view ourselves, therefore, is critical to the kind of government we have.  How should we view ourselves?  One test we might apply is a now ancient one, offered by those who sought to revive republican self-government after centuries of rule by emperors and kings.  The test was simply this.  What are the people like when a crisis comes?  What do they discover in themselves?

We might think this a test we will fail.  Have we not heard stories of the horrors in New Orleans following Hurricane Katrina, for example?  Once government disappeared—the narrative goes—savagery returned.  The first reports did convey that sense, but the first reports were wrong or at least exaggerated.  Further research has revealed that violence was rare; people helped one another.  The people of New Orleans and surrounding areas, in the absence of government, organized on their own an evacuation that saved thousands from the flood waters. 

Something similar but on a larger scale happened in New York City on September 11.  When the twin towers fell, thousands were trapped in lower Manhattan.  They moved to the tip of the island.   There they stood, growing numbers pressed against the water's edge.  Some of those who worked the waters around Manhattan started to take people aboard.  Other boats joined them, starting an evacuation that lasted almost nine hours and brought more than 300,000, perhaps nearly 500,000, to safety.  The evacuation took place without panic.  No one was injured or killed during it.

This evacuation was the spontaneous response of people to a crisis.  As such, it reveals something about the people.  One observer saw businessmen, no doubt from the financial district in lower Manhattan, those we might think of as the very paragons of conniving self-interest, carrying the old and disabled to boats, setting them down and then returning into the dust and crowds looking for others they could help.  Such actions occur not just in great crises like 9/11 or Hurricane Katrina. They occur when a tornado rips apart a town and people from surrounding communities come to help or when an ice storm takes out the electricity and neighbors share firewood or check on an elderly couple.

It is important, of course, not to flatter ourselves.  A small number of the people do take advantage of a crisis for their own ends.  The people did get some assistance from the government on 9/11.  Seeing the evacuation starting, the Coast Guard issued a call for all available boats and announced that the normal safety rules about how many passengers a boat might carry would not be enforced.  Above all, we should not take our bearings solely by what people do in a time of crisis.  We live mostly in more normal times, when complacency has a more marked effect and where the law as constraint and guide is helpful. 

Still, we should not accept the idea that the people are above all self-interested, especially if it suggests that the government, therefore, needs a heavy hand.  Or, perhaps, we should take from the example of how the people act in a crisis a better understanding of self-interest.  What we see in a crisis, we might say, is people who think enough of themselves, and what they can do, to think of others as well.  We see that self-interest in this sense derives from self-respect.  If you think well of yourself, you will take an interest in yourself.  Taking an interest in yourself, you will take an interest in and help those who are important to you, your family, friends, neighbors, and fellow-citizens.  The circle of regard spreads, in due proportion, outward from the self-regarding individual.  That is the true foundation upon which the Constitution and our hopes for limited government rest.

Ohio Farmer

Taxation and Unlimited Government

To My Fellow Citizens:

Throughout history, most political regimes have been what professional categorizers of such things call "extractive." We have no objection to the term. It is accurate enough and even vivid. Extractive regimes—that is, most regimes in most places in most times—protect the political and economic power of the ruling class by taking wealth from others. In the realm of international affairs, states and empires conquered others and extracted wealth from the defeated populations. Domestically, rulers imposed taxes on their subjects in order to fund the rulers' enterprises, especially foreign wars.

On the surface, the extraction of wealth from the subjects by taxing them would seem to be limited only by the will of the ruler. But in practice, the imposition of high taxes on the population destroyed the incentives of those being taxed to produce, ultimately drying up the rulers' source of revenue, often leading to the fall of the overreaching extractive political regime.

The American Founders, building on the liberal political theories of the 17th and 18th centuries, envisioned a different polity, a limited government the purpose of which was to protect the natural rights of its citizens. Such a government would of course require revenues, but taxes would be limited because the ends of government were limited.

The Constitution's "spending clause" (Art. I, Sec. 8, Clause 1) permits the levying of taxes for only two purposes: to pay the debts of the United States and to provide for the common defense and general welfare of the United States. Some Founders, especially Alexander Hamilton, supported an expansive spending and taxing power for the national government, but even this most ardent advocate of a strong national government understood the limited purposes of government. For Hamilton, the taxing and spending power of the national government was best focused on stimulating economic growth.

Hamilton and the other Founders understood, as Adam Smith taught, that freedom and economic growth could occur only if the government's power to interfere with the natural rights of individuals, especially the right to property, was constrained. They understood that sacrificing the natural rights of individual citizens to a government of unlimited powers would lead to slavery, not freedom. As James Madison argued in Federalist 10, the protection of the diverse faculties of men, from which the rights of property originate, "is the first object of government."

As we have argued repeatedly in these letters, the Founders' understanding of the Constitution as a charter for limited government has over the course of a century largely been overturned by a progressivism the central idea of which is that the job of government is to provide for the material well-being of all. The government envisioned by the progressives is necessarily unlimited in scope. And if the ends of government are unlimited, the revenues necessary to achieve those ends are likewise unlimited. Progressive government is a return to an extractive political regime.

In practice, taxation under the progressives' extractive regime amounts to adjudicating the distribution of resources among competing claimants. For today's progressives, the United States is not a community of individuals, but 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. Wealth must be transferred from more productive citizens to less productive ones. Modern progressives may invoke the language of rights, but what they really mean by the term, as we have seen, are privileges or claims to resources that are granted by government. All of this is done in the name of "equity" and "fairness."

The problem with the progressive version of the extractive polity is the same one that the old-fashioned extractive polity faced: raising taxes to pay for an unlimited government destroys the incentives of productive citizens to create the wealth that underpins economic growth. Without economic growth, taxes and wealth transfers create a zero-sum or negative-sum outcome. This situation is what economists call "rent-seeking": the distribution of a fixed stock of goods. Politics in such a regime is reduced to the maneuvering of politicians seeking advantage by redistributing wealth to favored groups in the expectation that those favored groups will re-elect them.

As the old saying goes, all that is certain in life is death and taxes. The problem today is that progressivism has distorted the end of government, eliminating the constraints the Founders recognized as necessary in a republic dedicated to the protection of natural rights. But unlimited government requires unlimited revenues. The result is a system of taxation that kills economic growth by interfering with the release of productive capital into the economy. Those who want a preview of the future of a progressive America need only look to Europe, where governments seeking to redistribute wealth have run out of other people's money.

Ohio Farmer

Men Are Not Angels

To My Fellow Citizens:

It's widely understood that America's Founders took a realistic view of human nature. In designing a political framework for the new nation they expected that people would more likely be self-interested than self-sacrificing, and they tried to structure the government so that the consequences of self-interested behavior would be, on balance, more beneficial than harmful.

In a famous passage in Federalist 51, James Madison calls "government itself … the greatest of all reflections on human nature." We are not angels, acting with pure and disinterested motives, he contends, so we do need to be governed. But the people who will be doing that governing aren't angels, either, so they too need to be controlled rather than permitted to exercise unchecked power over us. Accordingly, the great difficulty in framing a government is that "you must first enable the government to control the governed; and in the next place oblige it to control itself."

Madison did not think that the Constitution's architecture of checks and balances was an iron-clad guarantee that America's republic would succeed where all previous ones in history had crashed and burned. He did think the Constitution's "policy of supplying, by opposite and rival interests, the defect of better motives" significantly improved our chances of survival. Some of the Founders' contemporaries were considerably more enthusiastic.

In Perpetual Peace: A Philosophical Sketch (1795), the German philosopher Immanuel Kant seemed almost to quote from The Federalist Papers: A republican constitution "is the most difficult to establish and even harder to preserve, so that many say a republic would have to be a nation of angels, because men with their selfish inclinations are not capable of a constitution of such sublime form." Kant, too, saw an architectural response to the problem: It is "only a question of a good organization of the state (which does lie in man's power), whereby the powers of each selfish inclination are so arranged in opposition that one moderates or destroys the ruinous effect of the other." In a state so organized, "man is forced to be a good citizen even if not a morally good person." Making the most sweeping possible claim for the capacities of political architects to overcome the weakness of the human materials, Kant wrote, "The problem of organizing a state, however hard it may seem, can be solved even for a race of devils, if only they are intelligent."

Madison didn't go that far. In Federalist 55, after taking up and attempting to refute hypothetical questions about how American government under the Constitution might lend itself to this or that abuse, Madison finally throws up his hands. Yes, the policy of relying on self-interest where better motives can't be counted on will help sustain a republic. But, no, a nation of devils will not form a successful republic, no matter how intelligent they are or how well their state is organized. "As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust," Madison wrote, "so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form."

The British scholar and diplomat, James Bryce, traveled extensively throughout the United States gathering material for his book, The American Commonwealth, first published in 1888. Examining the United States during the Constitution's centenary, Bryce sided with Madison against Kant on the capacity of a republic's organization to make the virtue of its citizens irrelevant. "To expect any form of words, however weightily conceived, with whatever sanctions enacted, permanently to restrain the passions and interests of men is to expect the impossible," Bryce wrote. "Beyond a certain point, you cannot protect the people against themselves …." He ascribed a great deal of the success of the American experiment to our people's distinctive habits and dispositions: "[T]here is in the United States a sort of kindliness, a sense of human fellowship, a recognition of the duty of mutual help owed by man to man, stronger than anywhere in the Old World …. The natural impulse of every citizen in America is to respect every other citizen, and to feel that citizenship constitutes a certain ground of respect."

Madison and Bryce are, pretty clearly, the winners of this argument with Kant: Wisely designed constitutional structures can do a good deal – but only so much – to mitigate the political effects of citizens' moral shortcomings. It is impossible for an excellent constitution to guarantee successful self-government for very long in a nation of devils, or even one populated by louts.

It's easy to see how a republic draws on the moral and social capital that forms a conscientious, forthright, self-disciplined citizenry. The harder question is how to replenish those habits and dispositions when social trends lead more and more people to be self-indulgent and shortsighted, scornful rather than respectful of their fellow citizens' concerns and dignity. A foreign visitor to early 21st century America would more likely be struck by the many conspicuous absences of fellowship and mutual respect than, as Bryce was in the late 19th century, the ubiquity of those qualities.

Complicating matters further, the enterprise of replenishing the moral capital of a republic appears to be a social project more than a political one. There's the danger that a government strong enough to "address" unfortunate, consequential trends like family instability or declining civic engagement would become so strong it would have the ability, and sometimes succumb to the temptation, to interfere with private matters that are none of its business. A big part of the conservative challenge is to conserve the political forms and the social materials necessary for a republic to succeed – and to keep these efforts distinct even though they ultimately serve a common goal.

Ohio Farmer

 

Constitutional Letter and Constitutional Spirit

To the Members of the 112^th Congress:

From my first letter, I have spoken of the need for attention to the Constitution if we are to continue to enjoy the blessings of limited government.  It was gratifying, then, to hear the Attorney General say in a recent speech that "our actions must always be grounded on the bedrock of the Constitution." 

The particular action the Attorney General was referring to was the execution of an American citizen without trial, solely on the order of the President of the United States.  On the face of it, nothing could seem less constitutional or legal.  The Constitution is the framework, the set of rules, that prescribes what the government may legitimately do in a regime dedicated to securing the rights of life, liberty, and the pursuit of happiness for its citizens.  These rights exist before and outside the Constitution; the Constitution is meant to serve and preserve them.  We never cede them to the government and we cannot be deprived of them without what the Constitution calls due process, which includes trial by jury. 

How then could the Attorney General claim that it was constitutional for the President to authorize the execution of an American without trial?  I have neglected to mention that the American executed was a terrorist, an American citizen "intent on murdering Americans" and taking a leading role in plotting such murders, as the Attorney General put it.  Moreover, the citizen carried on this plotting in places where it was not feasible to capture him for trial.  In such cases, when the threat to Americans is imminent, the courts have ruled that the normal procedures of due process do not apply.  In this case, "after a thorough and careful review," the President authorized the execution.  According to the Attorney General, citing Supreme Court decisions, this review met the constitutional requirement for due process, and such review will pass constitutional muster in other similar cases involving American citizens.

But how do we know that the American was a terrorist intent on murdering Americans?  The executive decided he was.  The executive branch acted as judge, jury, and executioner.  It thus exercised the powers of the judicial, as well as the executive branch.  A fundamental tenet of our Constitution is that limiting the power of the government to protect the rights of citizens requires separating the powers of government.  In grounding executive action on Court rulings, the Attorney General ignored the spirit of the Constitution.

What evidence did the executive rely on to order the execution of an American citizen?  It relied on intelligence, which includes what a court would call hearsay and would not allow in a trial.  We also know that intelligence may be wrong.  Was it wrong in the case the Attorney General refers to?  We do not know.  Nor will we know in future cases because intelligence is secret.  Not only is the Attorney General advocating a process that nullifies the separation of powers, he is advocating a secret process that defies our tradition of open trials.

The Attorney General assures us that we should not be concerned.  The executive branch orders executions only under "robust oversight."  Congress provides the oversight, "in keeping with the law and our constitutional system of checks and balances."  The Attorney General's words at this point in his speech are artful.  He says that the Executive informs the appropriate members of Congress about the legal framework for its execution of citizens.   Some members of Congress are told, apparently, only of the justification of targeting in general, not of the evidence that justifies targeting in any particular case.  This would be similar to a judge explaining to a jury what the law against murder means without allowing the jury to hear any of the evidence in the case before them.  Would such a proceeding ever be thought compatible with the rights of free men?

In addition, it is the peculiar function of the judicial branch to check and balance the power of the executive branch when the rights of citizens are at stake.  Congress, especially the members of the House of Representatives elected every two years, are too close to the passions of the people, too exposed to immediate political concerns, to protect the rights of someone accused of being a public enemy.  Again, the Attorney General ignored this fundamental tenet of our constitutional system.

But the Attorney General counsels us further about the Constitution.  He admonishes us that, however disturbing the process by which the President comes to order the execution of an American citizen, however contrary it seems to our most fundamental understanding of what a citizen is due—it is necessary.   We are at war and in war "real-time decisions" must be made, as opportunity dictates.  In these circumstances, the President cannot consult; he must act.

This is true but not relevant in this case.  Again, how do we know that the American citizen to be targeted is in fact a terrorist?  The Attorney General assures us a thorough review of available information takes place before an American is executed.  This takes time.  So does collecting the information on which the review depends.  The actual execution may occur because of an opportunity that must be seized immediately, but the process that leads to seizing that opportunity unfolds deliberately over time.  In this process, is there no opportunity for the judicial branch to play its constitutional role?

Playing such a role does not require a full trial.  In 1978, Congress passed a law that established judicial review of the executive branch's surveillance of individuals, including American citizens, in certain national security cases.  This judicial review is carried out without a trial, and has been done with secrecy and dispatch.  If judicial review is necessary and possible before an American falls under surveillance, should it not also be necessary before he falls under the gun?

It is good that the Attorney General should acknowledge the Constitution.  But it would be better if he and the executive branch were guided by its spirit.

Ohio Farmer

Against All Reason and Justice

To the Members of the 112^th Congress:

I concluded a recent letter by reminding my fellow citizens that "[i]f we have any hope of restoring the Founders' vision of limited, constitutional government, we must regain their understanding of the right to property."

The House of Representatives took an important step in that direction by voting to pass the Private Property Rights Protection Act, which denies all federal economic development funds for a period of two years to any state or locality that commits eminent domain abuse. The bill also gives property owners a legal recourse to fight economic development takings.

The Act was made necessary by the Supreme Court's terrible decision in the 2005 case, Kelo v. New London. A bare majority of the Court held that it did not violate the Constitution's Fifth Amendment for the city of New London, Connecticut, to take Suzette Kelo's cherished, well-maintained home in a decent neighborhood, in order to give it (and other property nearby) to Pfizer Corporation. The Court said that the transfer could help New London's economic redevelopment efforts, so it benefited the public and thereby served a "public purpose." This is despite the fact that the Fifth Amendment explicitly says: "nor shall private property be taken for public use, without just compensation" (my italics).

The Court tried to get around this by saying that "public purpose" is the same as "public use." But it is not. As the dissent pointed out, our Founders understood "public use" to mean that "the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever.... The term 'public use'… means that either the government or its citizens as a whole must actually 'employ' the taken property."

The Founders held this view because of their understanding of the right to property. As I said in my earlier letter, they held that every person has the right to acquire property and to possess it without being interfered with by other people or government. In the Founders' view, one of government's most basic purposes is to protect the right of people to possess their property unmolested.

Every government must have the power to take private property if necessary in order to construct government facilities like jails or public facilities like roads. If it did not have such power, it would not be able to do its job of protecting our natural rights. When we agree to be part of a political society, we implicitly give government (whether local, county, state, or national) this power of eminent domain.

But this power cannot be used to violate the very rights that it is created to protect. The right to possess our property means that we control it and get to keep what is ours. We can admit or exclude other people from it as we see fit ("No Trespassing!"). Under normal circumstances, even the police cannot enter a person's property without a search warrant. Government cannot tax property without our consent, and it cannot even take it for a public use unless it gives us "just compensation."

As the Kelo dissenters pointed out, all of these limitations reflect the Founders' deep understanding that our property is a part of us, and if government can take it from one person and give it to someone else, it denies that we are free people. The dissent quoted Justice Samuel Chase, who wrote in 1798 that "[a]n act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.... A few instances will suffice to explain what I mean.... [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it" (Calder v. Bull).

Justice Chase had it right. And now, as America's constitutional conversation continues, so does the House of Representatives. Some members of Congress supported the bill because public purpose takings tend to appropriate property from poor and minority owners to give it to powerful, politically-connected corporations. That's true, and it's a good reason to oppose them. But it is not the best reason. Any taking from one person (rich or poor) to give to another (rich or poor) undermines the basis of all liberty because it denies that people are by nature free to "dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature," as John Locke put it.

The Supreme Court drifted from the Founders' understanding of a legitimate "taking" because government has drifted from the Founders' understanding of what government should do. Public use has expanded into "public purpose" because government has expanded into so many more purposes than protecting rights: for example, "re-developing" an area of New London that wasn't even blighted.

The American people have taken a lively part in this constitutional conversation. Over 90% opposed the Kelo decision; indeed, they were outraged by it. Many states responded by restricting "public purpose" takings, and some state supreme courts, like Ohio's, struck down this misuse of eminent domain on the ground that it violates their own constitutions. Across the board, Americans saw clearly that Kelo was a decision "against all reason and justice."  Employing many of the political instruments available to them, the people and their representatives have been doing what they can to defend their fundamental right to property against the unreason and injustice that gained a bare toehold in our politics in the Kelo decision.

Now it is the Senate's turn to join in this important American conversation, when it deliberates on the Private Property Rights Protection Act.  We will see if they take the opportunity to recover an important part of our Founders' reason and justice by restoring Americans' right to property.

Ohio Farmer

To Secure These Rights

To My Fellow Citizens:

Rights are at the heart of American politics. Anyone wanting to understand our experiment in self government must grasp what we meant when we began that experiment by proclaiming, as self-evident truths, "that all men … are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," and that it is "to secure these rights" that "Governments are instituted among Men."  In our last letter, we reflected that the phrase "among these" is evidence that the authors of the Declaration of Independence, when listing three rights any legitimate government exists to secure, did not want to rule out the possibility of other rights deserving protection—such as the right to property.

We see the same concern reflected in the Constitution's Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Both our great founding documents, then, the Declaration of Independence and the Constitution, sought to protect against the danger that future governments might construe too narrowly the rights that defined their duties and justified their powers. Both documents explicitly reject the idea that the natural rights they enumerate are necessarily the only unalienable rights that government must protect. What they did not do and could not do is provide an exhaustive list of such rights.

Enter Franklin Roosevelt and the New Deal. FDR's New Deal presented itself as a necessary updating of the American Founding's 18th century principles to make them applicable to urgent 20th century realities.  "This Republic had its beginning," said Roosevelt in his 1944 State of the Union address, "and grew to its present strength, under the protection of certain inalienable political rights...." But,

As our nation has grown in size and stature... – as our industrial economy expanded – these political rights proved inadequate....

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all....

History had made "self-evident" to FDR and his progressive forebears that the self-evident truths of the American Founding were inadequate as a foundation for a just political order in our time. "Social justice," as Roosevelt had written in 1938, "is essentially a conception of this century. It was not visualized by the men who founded the nation." A re-founding was needed, and that is what the New Deal offered. Anyone resisting the new vision and wishing to return to the principles of the original Founding would be a reactionary.

Roosevelt's second Bill of Rights included rights to adequate employment, business opportunities, housing, medical care, education, and protection against old age, sickness, and unemployment. Those who find it hard to imagine a guarantee of economic security that is not included in this list are not thinking like New Dealers. A year before the 1944 State of the Union Address the National Resources Planning Board, an agency created to map out a domestic policy agenda for implementation after victory in World War II, had submitted a report to Congress with its own bill of social welfare rights. It included "The right to education, for work, for citizenship, and for personal growth and happiness," and "The right to rest, recreation, and adventure, the opportunity to enjoy life and take part in advancing civilization."

Replacing the Founders' understanding of unchanging natural rights with an ever-evolving wish-list under the name of rights is central to the modern liberal enterprise and is the key to understanding the boundlessness of that enterprise. The Obama administration recently demonstrated one of the problems with this approach: If any social policy goal may be proclaimed a right, any right may be regarded as just another policy goal. The Department of Health and Human Services navigated this two-way street by announcing that the Affordable Care Act required non-profit employers to offer contraceptive coverage to their employees, even if they have never done so in the past due to religious convictions. The rationale, according to HHS Secretary Kathleen Sebelius, was to strike "the appropriate balance between respecting religious freedom and increasing access to important preventive services." The implication is clear: The government is going to balance two commensurate things, religious freedom and the provision of important preventive services. For the latter to become a right, just like the former, the former needs to be whittled down to fit a domestic agenda, just like the latter.

The biggest problem with the HHS contraception rule is not that HHS made the wrong decision, but that HHS was wrong to make a decision. A properly constituted republican government protects, rather than occupying and managing, the space wherein citizens follow their consciences while securing the employment and insurance arrangements they desire. Such restraint comes naturally to a government that exists to secure a finite number of unchanging natural rights (even if it is imprudent to proclaim an exhaustive list of those rights) but is foreign to one that supposes historical progress vouchsafes an endless list of rights—so that, as a result, nothing is really a right.

Ohio Farmer

 

Among These Rights

To My Fellow Citizens:

"No Taxation Without Representation!" was a great rallying cry of the American Revolution, but it's easy to forget why. To tax a person without his or her representatives' consent violates what the Founders understood to be one of the most sacred of our natural rights, the right to property. The right to property is one of the pillars of limited, constitutional government.

The Declaration of Independence says that we are endowed by our Creator "with certain unalienable Rights; that among these are Life, Liberty, and the pursuit of Happiness." "Among these" tells us that this list is not exhaustive. There are other fundamental rights that individuals never give up when they join society. The right to property is one of those. As James Madison said at the Virginia Constitutional Convention of 1829, "the rights of persons and the rights of property are the objects for the protection of which Government was instituted. These rights cannot well be separated." For the Founders, property is a right of all individuals and every bit as important a "personal right" as freedom of speech or religion.

What exactly is the right to property? Some people today seem to think it means being entitled to an equal amount of income or wealth – or at least a minimum amount of those. Others talk as if it means "fairness" or "equal opportunity," by which they mean having the same likelihood of financial success as every other person. But it is neither of these.

As the Founders put it in the Virginia Declaration of Rights of 1776, every person has the right of "acquiring and possessing property," and using and disposing of their property as they think best, so long as they don’t harm someone else's life, liberty, or property. The right to property can't mean that you are entitled to receive a certain amount of money from someone else – what if they don't have it? Who would you take it from? It also doesn't mean having the same likelihood of making money as another person. Some people start off with economic or family advantages that others don't have, which may give them a better chance to make money than you or I will ever have. To level all of those advantages, government would have to take their property simply to give it to you or me, which violates their right to possess property – one of the very rights government is created to protect. As Publius says in the celebrated Federalist 10: The protection of the faculties of men, from which the rights of property originate, "is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results."

Understood in light of the Founders' view of property, economic "equality" and "fairness" mean having the law protect your property the same as everyone else's. As Madison emphasized to his fellow countrymen in a 1792 newspaper article called "Property": "Government is instituted to protect property of every sort…. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own."

According to Madison, this means that it "is not a just government … where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens the free use of their faculties, and free choice of their occupations." Government-created monopolies aren't merely economically foolish; they are fundamentally unjust. So are regulations that favor one industry over another or laws in which "unequal taxes oppress one species of property and reward another." Madison's words remind us that your property is part of you, so when government treats some property unfairly, it is treating some person unfairly. By Madison's standards, much of our current tax law is not only complicated and foolish but downright wrong.

The Founders' idea of property used to inform Americans' constitutional thinking, but too many people (especially in government and the academy) have gotten away from it. Instead of embracing property as a right of all individuals that can liberate them from poverty and oppression, they see it as a malevolent force that must be controlled by a powerful government. They don't understand that labor and property are not naturally opposed – everyone, even the poorest person, has property because he owns his own labor and has the right to sell it to support himself and acquire more. They support "People Over Profits!" not realizing that profits are made by serving people – at least in a free market built on respecting every person’s right to property. They demand to know: "Are you for money or man?" not understanding that by protecting the right to property, government is for money and man.

Much of what government does today involves redistributing and restricting property, violating people's rights to acquire, possess, use, and dispose of it as they think best. If we have any hope of restoring the Founders' vision of limited, constitutional government, we must regain their understanding of the right to property. When we do, we will see clearly again, as Madison declared, that "[i]f the United States mean to obtain or deserve the full praise due to wise and just governments," it will "equally respect the rights of property, and the property in rights." 

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