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

Democratic Government and Good Government

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

Franklin's Fourth

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

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

Happy Fourth,

Ohio Farmer

 

Material and Spiritual Security

To My Fellow Citizens:

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

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

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

The Founders noted, as others had before them, that although the rulers did not care about their subjects' material security they did seem concerned about their own.  They ensured it by wringing it from the labor of their subjects.  Talk of providing spiritual security was a pretense for injustice.  Whatever may have been the good intentions behind the effort to provide spiritual security, such is human nature that inevitably the vast powers necessary for such a purpose were put to tyrannical ends.  As I remarked in a previous letter, "Americans know that on this earth the rule of God always means only the rule of men, who claim to act in God's name and with his unlimited power and yet act merely in their own self-interest."

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

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

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

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

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

Ohio Farmer

 

Taxation and Unlimited Government

To My Fellow Citizens:

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

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

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

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

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

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

In practice, taxation under the progressives' extractive regime amounts to adjudicating the distribution of resources among competing claimants. For today's progressives, the United States is not a community of individuals, but an array of groups whose demands must be met. But since government produces nothing on its own, certain favored groups prosper at the expense of others. Wealth must be transferred from more productive citizens to less productive ones. Modern progressives may invoke the language of rights, but what they really mean by the term, as we have seen, are privileges or claims to resources that are granted by government. All of this is done in the name of "equity" and "fairness."

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

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

Ohio Farmer

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

Enlightened and Patriotic Councils

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

 

Our Promissory Note

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

 

The American Mind

To the Members of the 112th Congress:

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

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

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

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

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

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

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

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

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

Ohio Farmer

Novus Ordo Seclorum

To the Members of the 112th Congress:

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

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

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

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

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

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

Ohio Farmer

A City Upon a Hill

To the Members of the 112th Congress:

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

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

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

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

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

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

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

Ohio Farmer

"American Leadership"?

To the Members of the 112th Congress:

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

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

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

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

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

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

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

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

Ohio Farmer

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 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

"The Kind of Country We Believe In"

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

Ohio Farmer