Letters from an Ohio Farmer

The American Conversation

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

The Distributive Constitution

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

To Secure These Rights

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

 

Preserving the Constitution and the Nation

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

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