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

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

 

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

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

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

 

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

 

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

Congress and the Constitution

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

Happy Constitution Day.

Ohio Farmer

Regime of Liberty

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

Changing Direction

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

Constitutional Lines

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

Ohio Farmer

War and the American Character

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

Ohio Farmer

Words and Politics

To the Members of the 112th Congress:

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

The Sense of the People

To the Members of the 112th Congress:

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

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

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

Willful Majorities or Constitutional Majorities

To the Members of the 112th Congress:

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

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

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

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

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

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

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

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

Ohio Farmer

The Just Powers of Government

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

The Lost Art of Legislation

To the Members of the 112^th Congress:

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

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

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

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

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

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

Ohio Farmer

The Spirit of Checks and Balances

To the Members of the 112th Congress:

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

The Commerce Clause

To the Members of the 112^th Congress: 

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

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

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

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

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

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

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

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

Ohio Farmer

A Decent Respect

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

Ohio Farmer

Our Justice

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

Ohio Farmer

The Course of Human Events

To the Members of the 112^th Congress:

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

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

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

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

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

James Madison adds his own moderating wisdom in Federalist 37:

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

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

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

Ohio Farmer

A Republic If We Can Keep It

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

Ohio Farmer

A Republican Form of Government

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

Ohio Farmer

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

Reconstitutionalizing America

To the Members of the 112^th Congress:

To bring American government back within the bounds of the Constitution —to reconstitutionalize it—will be no easy or simple task.  How dismissive of the Constitution our government has become was memorably expressed by then Speaker of the House, Nancy Pelosi, in two widely quoted remarks about the health care bill that ultimately became the Patient Protection and Affordable Care Act (PPACA), whose constitutionality is seriously in dispute right now.  It is worth recalling her words, because they are a surface expression of an attitude toward our politics that is deeply entrenched and must be replaced by a very different attitude if we are to recover constitutional self-government. In October 2009 when a reporter from CNSNews.com asked, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Pelosi replied, “Are you serious?  Are you serious?”  Then in a March, 2010, speech, Pelosi said, “We have to pass the bill so you can find out what’s in it.”

Her rhetorical question—“Are you serious?”—was, of course, meant not to begin but to end conversation. Such contemptuous dismissal of citizens’ serious concern about constitutionality made many voters indignant last November, and they carried their well justified indignation with them to the ballot box.  The arrogant contempt continued in the sniffing dismissals that greeted the new Congress’s show of respect for the Constitution.  This arrogance comes from a belief that is held to be unquestionable. This is the belief that the New Deal irrevocably transformed America into a country whose central government has the authority to address any social or economic problem, and to mandate or proscribe any individual conduct plausibly related to alleviating that problem.  To the former Speaker and those who agree with her, it is preposterous—mind-boggling—that any 21st century American should presume to question this article of faith. The same arrogant incredulity struts and postures angrily in Wisconsin and Ohio and other states where public employee unions and their advocates in the media assert a right to collective bargaining that is somehow supposed to be regarded as sacred and beyond question. Whatever citizens may think of the merits of the question, the arrogance of such assertions sticks in the craw of those who cherish self-government.  

Pelosi’s second statement acknowledges that in this post-New Deal America, when Congress does something, it’s not really Congress that does it.  We have to pass a bill to find out what’s in it because what’s “in” it resides nowhere in the language of the legislation, but in the rulings and regulations that will be handed down, months and years after the bill-signing ceremony, by administrative agencies empowered by Congress to make all the practical policy determinations. What one New Dealer advocated in 1937 has come to pass—every important law enacted by Congress is really “a declaration of war, so that the essence of the program is in the gradual unfolding of the plan in actual administration.”  In PPACA’s declaration of war on the problem of people being uninsured, under-insured, or over-insured, it creates 159 new federal entities to devise and execute a battle plan.

Representative Pelosi is right about the way America is governed now: The federal government can do just about anything it wants, and can do it just about any way it wants.  It can do this because, in the course of the last two generations, the federal government has assumed responsibility for the social and economic well-being of every American.  This required the creation of programs for managing in minute detail all the social and economic relations between all the different members and segments of American society—employers and employees, producers and consumers, doctors and patients, husbands and wives, parents and children, and on and on. Because Congress cannot possibly write legislation governing so many details of so many interactions, it must outsource rule-making to boards, agencies and commissions, such as the Elder Justice Coordinating Council or the Cures Acceleration Network created in PPACA.   

As the New Deal was gathering steam the Supreme Court held, in 1935, that such “delegation run riot” violated the Constitution’s assignment of legislative power to Congress.  That is, the Constitution does not permit Congress to delegate its powers to any other governmental entity.
The Court has never explicitly overturned that decision, though it has implicitly negated it over the subsequent 76 years by acquiescing as Congress plunged ahead in riotous delegation.  When Congress delegates real governance in this way to agencies not answerable to the American people, it creates the conditions for lawless policy, subjecting every detail of American life to regulators bound by nothing but their own will.  

In the reading of the Constitution with which the newly elected House of Representatives began its first session, one hopes that every member gave full attention to Article One, Section One: “All legislative powers herein granted shall be vested in a Congress of the United States.” Supreme Court justice Hugo Black famously wrote about the First Amendment that “‘No law’ means no law.”  By the same token, we cannot reconstitutionalize American government until jurists, legislators, and citizens begin to insist, “‘All legislative powers’ means all legislative powers.”

This reconstitutionalization would have been assisted if the House had also sat for a reading of the Declaration of Independence, especially the part about governments “deriving their just powers from the consent of the governed.”  The 62nd Federalist Paper warned us against the sort of hyperactive government needed to secure every citizen’s socioeconomic well-being: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be tomorrow.”  The predicament becomes much worse when the blizzard of edicts is issued, not by “men of our own choice,” but by appointed and usually life-tenured civil servants who cannot be removed or rebuked by mere citizens.  This arrangement dilutes and attenuates the consent of the governed so severely that it deprives the government of what the founders considered the only source of legitimate power.   We should bend our efforts to recovering the full range and authority of the constitutional consent from which the just powers of government are derived.

Ohio Farmer

Civility and Powers

To the Members of the 112^th Congress:

"Civility" has been a word to conjure with for the past few weeks. Since the terrible killings and woundings in Tucson, Americans could hardly open a newspaper or turn on a television without someone shouting at us most uncivilly in the name of civility. In the name of making us all friends, "civility" is wielded as a cudgel would be wielded against hated enemies. The word is deployed as a weapon, the way "bipartisanship" has sometimes been deployed in the service of the most narrow and unseemly partisanship.

Citizens' eyes roll and glaze over at such unserious and trumped up scolding. But civility is a serious theme. We want civility in our civil discourse because, in the language of the founders, we want reason and not passion to govern our affairs. We insist that we will be ruled by the consent of the people, and we are aware at the same time that the people can become a mob. And so, as the last letter observed, we have devised "constitutional ways of constructing and shaping the authoritative consent of the people" so that the "cool and deliberate sense of the community" might prevail in our political deliberations.

Among the constitutional devices intended to help achieve this difficult and desirable result, separation of powers ranks high. This idea, "that the legislative, executive and judiciary departments ought to be separate and distinct," is (let us hope!) familiar to every American eighth grader; let us even be so immodest as to say that it is an essential American contribution to the advancement of constitutional governance.  Separation of powers was so important to the founders that they thought, in James Madison's words, that "[t]he accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny." But I won't rehearse here what (I trust) we all have learned on the subject from fondly remembered grammar school teachers.

In the spirit of renewed attention to the Constitution that distinguishes this Congress, I will hope merely to observe something that may not be quite so obvious and may have a bearing on Congress's response to current challenges. Put simply, in our Constitution the branches are separate, but they are not equal: the vast preponderance of federal authority is delegated to Congress, which is without question the preeminent branch under the Constitution.  One reason this may not be as obvious as it should be just by reading the Constitution is that, over the last fifty years, the separation of powers has tilted a bit out of constitutional balance. The presidential and judicial branches have become assertive and bold in articulating the national agenda, and Congress has largely deferred to this (or to the bureaucracy), sometimes in an effort to avoid difficult or potentially unpopular actions. Think of the fact that we call the recent historic elections "midterm" elections, as if Congress is a sideshow and the Presidency is the main event.

In our Constitution, Congress is the main event, and our separation of powers will serve us better if Congress is not as deferential as it has become accustomed to being (whether to the executive, the judiciary, or the bureaucracy). Let Congress reassert the lawmaking preeminence and responsibility intended for it in the Constitution--initiating constitutional conversations, setting out an agenda which is not necessarily the President's or the Court's, overturning what the members may consider to be the wayward actions of the other branches--and our constitutional deliberations as a whole will benefit.

I hasten to add, lest "irrational exuberance" seize the day, that when Congress acts boldly and takes the legislative initiative the Constitution intends for it to take, members should do so on behalf of their constitutional duty and not for mere party advantage, and they (and we) should hope and expect to find that the executive branch and the judiciary will rise to resist any assertions that seem to them unacceptable, behaving just as is intended in the Constitutional design. This proper functioning of the separation of powers (aided by the checks and balances within Congress) is meant to impede the misuse of Congressional power. We and Congress will display a kind of constitutional wisdom and patience, I think, if we recognize that the power to resist misuses of Congressional power is also a power that might on occasion thwart the necessary and proper uses of Congressional power.

More generally speaking, if separation of powers is designed to impede the rash introduction of radical change, it also has the effect of making it difficult to undo such change. If this Congress thinks it is its duty to do just that, let it act and give its reasons. It will meet resistance, and we all should expect that reasons will be given in turn. This is our Constitution at work. Citizens should anticipate serious argument, not just about policies, but about rights and duties, about the powers of government and limitations on those powers.  We should all learn from this, and all of this, of course, takes time.  And if our elected representatives can't sort it out, then the people, through the ballot box, will speak again, and a new constitutional deliberation, possibly with different participants, will begin.

A final word:  No constitutional devices like separation of powers--none of these "inventions of prudence," as Publius called them--will bring civility or cool and deliberate reflection from a nation of savages. So our broader constitutional deliberations should include not just civility but all the virtues, capacities, and principles that must shape the character of a people if they mean, as we do mean, to be self governing. Among the themes to include in these deliberations is the civic friendship, the care for one another, even in our millions, that could not be missed when the news of the Tucson tragedies spread across the land.

Ohio Farmer

An Experiment in Self-Government

To the Members of the 112^th Congress:

I wrote in the last letter about the sovereignty of the people and about the oaths you take as members of Congress to uphold the Constitution. Both seem to me to be related in a beautiful way to the American experiment in self government.

Whenever I happen to think about it, I can’t help feeling a fresh sense of wonder, and then of gratitude, that the American people, upon achieving sovereign independence and proclaiming to the world their right to govern themselves, submitted their sovereign power to a Constitution, which was at once their creation and the Supreme Law over them.  This great political act reflected, I think, our recognition that the people’s sovereign power is itself subject to what Thomas Jefferson called "the great principles of right and wrong." As Jefferson put it, it was not an "elective despotism" we fought for; we seemed to understand that if our right to self government was to lead to good government, we must establish conditions under which our authoritative consent might become reflection and deliberation—conditions for drawing out from our sovereign selves what Publius called "the cool and deliberate sense of the community."  To form ourselves into a community in which, in Madison’s word, "Reason" might rule, we formed ourselves into a constitutional people. We devised for ourselves constitutional ways of constructing and shaping the authoritative consent of the people into constitutional deliberations by which we would be governed. 

Think what a people we must already have been, to be determined and able to do such a thing. When the American revolutionaries and founders looked back on the history of popular governments in the world (and they were avid students of that history), they beheld scene upon scene of turbulence and instability, of violent agitation between the extremes of anarchy and tyranny. So terrible was the picture, as Publius said, that it gave advocates of despotism an argument against free government altogether. Nonetheless, because of what they called their "honorable determination ... to rest all our political experiments on the capacity of mankind for self-government," the American Revolutionaries insisted that American government would be founded on the"consent of the governed." In fact, as the founders knew, the proud American people would not accept any other form of government.

But this would have been a false pride, it would have been not an honorable but a foolish determination, if the American people did not possess the capacity for self-government they generously claimed for mankind. But they proved themselves not only determined to establish a government based on consent, but capable, in Benjamin Franklin’s famous phrase, of "keep[ing] it."They proved themselves not only to have the pride to insist on freedom, but the virtues necessary to do honor to it (may this always be the case). In subjecting themselves to the Constitution as they did, they proved themselves already to possess a constitution, in their souls—the constitution of a free people, without which the written Constitution would be useless parchment.  

This constitution in our American souls expressed itself in a small way recently in our expectation and gratification that members of Congress should take an oath to uphold the Constitution. This is an oath of fidelity to the Constitution, and not to us, the people. Our high regard for this oath, it seems to me, is the sovereign people’s way of telling our representatives that we expect you to be somewhat independent of us, that we think good government depends upon it. Those who originally conceived this Constitution said in many different ways that you would do your job well by remaining true to the Constitution, even when some people—I mean, us—clamored for you to do otherwise. In such moments, we count on you to "refine and enlarge" the public’s view with your constitutional deliberations. Your oath opens a slight but decisive space between the people and their representatives, in which you can exercise your constitutional judgment in carrying out your lawmaking duties. Of course, you will often disagree among yourselves about what your duty to the Constitution requires of you. But articulating those differences will benefit all of us by contributing to a constitutional politics which will be the most reliable source of enduring sound policy. If we are as good as we claim to be, you will earn our respect, and our vote, when you respect the Constitution and help us to do the same, even despite what we sometimes might think is our contrary interest. 

Ohio Farmer

A Constitutional Conversation

To the Members of the 112^th Congress:

I write in all humility as your sovereign—I mean as one of the millions of American citizens who together bear the ultimate responsibility for this land of freedom that you and we love. I write as your new session gets under way because I am convinced that this is a pivotal moment in our country's history, when our choices and yours hold tremendous consequences for America’s future, for our children and grandchildren.

To begin your session, newly elected Republican members put the Constitution in the forefront of Congress's deliberations— scheduling an unprecedented reading of the Constitution on the floor of the House and proposing that every bill be required to cite constitutional authority for its enactment. Some Democrats and some in the media criticized these actions. I would like to think that the actions and the criticism may be hopeful signs, that they may mark the beginning of a conversation in the country that is overdue—a long, probing conversation among friends, with no holds barred.

The people should be active participants in this conversation. In earlier fateful moments in the life of the country—the Revolution, the debate over the Constitution, the Civil War and Reconstruction, the New Deal, the Civil Rights Era—the nation rose in serious and sustained argument about the foundations, purposes, scope, and form of our government. It seems to me that this is just the kind of conversation—a constitutional conversation in the broadest sense—that the country needs to have today. This is the first in a series of essays modestly hoping to contribute to this distinctly American conversation.

Who is the Ohio Farmer? He is not one person. In the manner of the Federalist Papers back in 1787-88, the Ohio Farmer letters will be written singly and jointly by different concerned citizens who would like their arguments to speak for themselves and to be judged on their merits. Like Publius, we candidly avow our political sympathies: We are partisans of the Constitution. But what does that mean? It is my hope in forthcoming letters to answer that question thoroughly.

To begin: it seems to me that one of the great errors of recent decades is the supposition that constitutional questions are matters only for lawyers and judges to decide. The Constitution begins with "We, the people," not "We, the judges." It belongs to all the people, and to all three branches of government. Thinking about the Constitution is a responsibility of our citizenship as it is of your statesmanship.

So, as you go about your business as members of Congress, it seems altogether fitting and proper not only to show reverence for the Constitution—or to criticize such shows of reverence, if you think that better serves the Constitution—but to express your own constitutional views as they bear upon your business—our business—and to argue in public on behalf of those views. This would seem to be fully in keeping with the oath you recently took to support and defend the Constitution, an oath I expect you will take with solemn seriousness, and in honor of which you will daily strive to make your conduct as legislators conform to the limitations and principles of the Constitution, as you understand them.

I am inclined to think that the best hope right now for developing a fruitful constitutional deliberation in the country arises from the political spirit of the citizenry that led to the historic recent elections. In those elections we expressed, I think, the greatest human power active in the world today, a power handed down to us—secured for us in revolution, preserved for us through civil war and world wars—through the generations since 1776. It is our constitutional responsibility to speak with such power—a power derivative from a source prior even to the Constitution, our fundamental right of revolution—and it is our constant prayer that our wisdom will somehow equal our authority. I think the freedom of this country, and the cause of freedom itself, depends on this prayer being favorably answered.

But, of course, we are not wise. As everyone has seen, we were roused in a historic way in these recent elections. In large numbers, we tore ourselves away from the private concerns of family and work to go into the public square, to join our neighbors in giving hours and days to the affairs we hold in common, to the common good of the country. But we brought our human and American limits and imperfections to these elections, as to all others.

We acted in some ways uncertainly and ambiguously and incompletely. We spoke with many millions of voices in several hundreds of separate elections just at the national level. And of course our minds will change as we see events unfolding and decisions being made in the coming months and years. That seems to be the nature of the sovereign you serve—not easy to please, often not easy to understand. But nonetheless the one you answer to and whose cool and deliberate sense you seek to represent.

So what did we mean in this election? What do we hope for from you? What do we have a right to expect from you? What does your and our constitutional duty require of us? In the course of these essays, which will appear weekly or with greater frequency as circumstances permit, I hope to consider conversationally these questions and the whole range of questions of mutual interest to sovereign citizens and their elected representatives.

But let me say again that I write in humility—humbled because the honor of being sovereign over this dear country is so great and the responsibility so momentous; humbled by my own limitations, limitations I and my fellow citizens readily acknowledge even while speaking, as we are bound to do, with sovereign gravity.

Ohio Farmer