Letters from an 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

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

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

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

 

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

Regime of Liberty

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

Words and Politics

To the Members of the 112th Congress:

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

Willful Majorities or Constitutional Majorities

To the Members of the 112th Congress:

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

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

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

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

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

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

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

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

Ohio Farmer

The Course of Human Events

To the Members of the 112^th Congress:

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

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

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

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

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

James Madison adds his own moderating wisdom in Federalist 37:

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

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

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

Ohio Farmer

A Boundless Field of Power

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

Ohio Farmer