Letters from an Ohio Farmer

Revolutions and Freedom

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

 

The Reason of the Public

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

 

Taxation and Unlimited Government

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

Ohio Farmer

Men Are Not Angels

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

Ohio Farmer

 

Among These Rights

To My Fellow Citizens:

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

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

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

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

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

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

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

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

Ohio Farmer

 

The Particular Glory of This Country

To the Members of the 112^th Congress:

Of all the freedoms protected by our Constitution, none is more cherished – and sometimes more difficult to think through – than religious freedom. We have been reminded of this in the Obama administration's recent decision to require church-backed employers to provide employees with insurance coverage for contraception. After religious organizations protested that this rule would force them to act against their conscience, the administration changed its rule and reached what the President called an "accommodation." This may or may not have solved the immediate problem, but it definitely did not answer the bigger (and more important) question: When should religious groups get an exemption from the law for their beliefs and practices?

Constitutional thinking has not been as consistent as it might have been on this question. The Supreme Court, for example, said in 1963 that religious beliefs and practices deserve an exemption from a law if they are burdened by it. But in 1990 it declared by a split vote that no one has the constitutional right to an exemption from a generally-applicable criminal law, no matter how much it interferes with his beliefs or practices – and no matter how important those beliefs or practices are to his religion. Congress tried to respond in 1993 with the Religious Freedom Restoration Act, which said that states had to exempt religious practices and organizations from burdensome laws unless they had a compelling interest not to do so. But the Court struck down that law in 1997, claiming that Congress did not have the power to expand constitutional freedoms when dealing with the states. In 2006, however, the Court admitted that the Act did still apply to the Federal Government.

The Court should have listened all along to Congress, which was following the lead of the Father of the Constitution himself, James Madison. A concern for religious freedom pushed Madison into his first foray in politics, which came at the Virginia Assembly of May-June 1776. There he successfully moved to amend the Virginia Declaration of Rights to say that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience" – language that he cribbed from later, when he wrote the First Amendment in 1789.

One year after penning the First Amendment, Madison's principles got put to the test while he was serving in the House of Representatives. In December 1790, the House was debating who should serve in the federal militia when it received a petition from the Quakers, who asked to be exempt from military service on the ground that "all revenge, animosity, strife, and contention are utterly forbidden by Christ our Lord." Many Congressmen denounced the Quakers' request as unpatriotic and dangerous, but Madison took to the floor to say that they should be granted an exemption.

According to Madison, each of us has a fundamental natural right to our religious beliefs and practices, which can never be taken away or given up. This freedom includes the right to form and communicate our beliefs – and to practice them unless those practices harm "the rights of other citizens" or "the permanent and aggregate interests of the community," as Madison put it in Federalist 10.

Looking at the Quakers' request, Madison admitted that there were arguments on both sides, but he concluded that Congress should grant the exemption because it was necessary to protect the Quakers' religious freedom, and would not harm other citizens' rights nor undermine America's interest in a functioning militia. He knew that even if the Quakers did not serve in the militia, other citizens would do their "honorable duty"; and he understood that "by penalties we may oppress the Quakers, but by no means hitherto discovered, can you make them undertake the defense of this nation." They would go to jail rather than go against their conscience, which would not help anyone. Despite Madison's appeal, the Quakers did not get their exception. Congress voted to leave the matter to the states.

But Madison got the principle right, and we can apply it to our day. Consider the recent contraception controversy. Exempting religious organizations from providing contraception coverage protects their freedom and would not violate anyone's rights:  employees would still be free to buy and use contraceptives, just like people who are free to purchase other health care goods that aren't covered by their particular insurance plans.

Nor would an exemption hurt the "permanent and aggregate interests of the community." The health care system would not be harmed. Hawaii, for example, already permits religious employers to enroll workers in a plan with a reduced premium, and allows employees who want contraception to pay for the coverage out of their own pocket. Health care has not suffered in Hawaii, and those who want insurance coverage for contraceptives can have it.

Unfortunately, the Obama administration did not originally approach this issue with such principles in mind. Even the recent "accommodation" may not be enough. If Congress needs to respond with a law, it should.  The issue is simply too important. As Madison reminded his fellow Congressmen in 1790, religious liberty must have the full protection it deserves, especially in America, because "above all it is the particular glory of this country, to have secured the rights of conscience which in other nations are least understood or most strangely violated." His words are as true today as when he spoke them.

Ohio Farmer

Enlightened and Patriotic Councils

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

 

Rule by Experts

To the Members of the 112^th Congress:

Progressives originally wanted more democracy; now they’d like less of it, if you don't mind.

We have had occasion in these letters to mention President Obama's former director of the Office of Management and Budget, Peter Orszag. Orszag left the administration last year for the more lucrative position of Citigroup's vice chairman of global banking.

During moments of leisure from tightening the shackles forged by international capitalism, Orszag enjoys writing articles in his capacity as an adjunct senior fellow of the Council on Foreign Relations. We know of nothing that will oblige our grandchildren to remember Mr. Orszag, but we call him to your attention because in a recent article he has had the candor to express openly a significant and troubling inclination of American progressives.

In his words, the time has come "to counter the gridlock of our political institutions by making them a bit less democratic."  The problem is not that our politicians are ignoring the views of the people who elect them, but that they reflect those views all too reliably.  More and more Americans inhabit political cocoons, he writes.  They get their news and opinions exclusively from congenial sources – Democrats watch MSNBC and Republicans watch Fox – and even reside in towns and counties that are vividly red or blue, rather than in the purple jurisdictions more common a generation ago. 

The upshot is that elected representatives get to Congress and have no latitude to compromise, since their constituents demand absolute adherence to a rigid political ideology.  The polarization and gridlock that result could be surmounted if the electorate broke decisively in one direction or the other, electing a president and congressional majorities committed to a common agenda and viewpoint.  Democrats like Orszag wanted to believe that this was what happened in 2006 and 2008, but the 2010 midterm elections demonstrated that America remains, politically, a nation closely divided, one where neither party gets the upper hand in a decisive way for a prolonged period.

Believing that polarization is here to stay, Orszag wants to find a way for government to work despite it.  Getting government to "work," however, sounds remarkably similar to getting it to enact the unimplemented parts of the Obama agenda.  He cites the need for a climate change policy, and asserts that "virtually all responsible economists" agree with him that we need a bigger federal deficit for the next two years in order to stimulate the economy and lay the groundwork for policies that will reduce the deficit in conveniently distant decades. 

Orszag is not the only Democrat disaffected from democracy.  Governor Beverly Perdue of North Carolina recently suggested suspending congressional elections for two years as a way for voters to convey to congressmen that whatever decisions they make to effect economic recovery are ones "we won't hold … against them."  The governor's spokeswoman hastened to insist that her boss was "obviously using hyperbole" to draw attention to the "serious problem" of "politicians who focus on their own election instead of what's best for the people they serve."

Well, it's good to be reassured that the banana-republic step of suspending the people's ability to hold the legislature to account does not appear to be a Democrat project, but isn't it a bit discouraging to see prominent members of that party holding the incapacity of the people to govern themselves to be a self-evident truth?  To say that politicians face the mutually exclusive option of getting elected or doing what's best for the people means that the people are too ill-informed, short-sighted, or weak-minded to make wise governance an unassailable electoral advantage rather than a handicap.

Orszag is not using hyperbole, and his ideas about making our institutions "a bit" less democratic sound like they would leave them a lot less democratic.  He wants the Independent Payment Advisory Board (IPAB), the central reform mechanism of Obamacare (the Patient Protection and Affordable Care Act), to be the new template for governance generally.  Readers will recall that IPAB is, in Orszag's words, "an independent panel of medical experts" whose recommendations on controlling health care costs become law unless Congress and the president explicitly countermand them.  According to Obamacare, Congress cannot dismantle IPAB, no matter how much the medical experts outrage mere citizens, except in the distant future and by following an elaborate procedure that has no authority in a Constitution that vests "all legislative powers" in the elected national legislature.

IPAB has not even come on line yet and Orszag is already so pleased with it as an improvement on representative democracy that he would like to see new, IPAB-like commissions empowered to set federal policy in such obscure and insignificant areas as infrastructure and taxation.  He allows that government by commission would "reduce the power of elected officials and therefore make our government somewhat less accountable to voters."  But, darn it, since no one else has "come up with a practical proposal" to "circumvent legislative gridlock," Orszag sees no alternative to turning all the important questions facing the government over to panels of experts, and keeping Congress around only to intercede if the commissions come up with measures the people absolutely deplore.

Orszag repudiates a straw man when he urges Americans "to jettison the Civics 101 fairy tale about pure representative democracy" and embrace government by commission.  The logic of our constitutional system recognizes that while popular government can be rash, stubborn, or petty, any political architecture that protects against these tendencies by conferring autonomous power on a small minority purportedly blessed with exceptional wisdom or virtue sets up the temptation and probability of tyranny.  Thus, the Constitution's goal is to secure "a republican remedy for the diseases most incident to republican government," as Federalist 10 contended. 

This Madisonian approach is certainly aware of the need for "experts" in a well governed republic, but it seeks to improve democracy by elevating and refining it.  It creates a government in which all political power derives from and must answer to the people, but where the structure of the government and the national union is designed to give the nation every opportunity to embrace policies that are wise and not merely popular.  Presidential elections, for example, are held every four years rather than every four months, so that a president has the constitutional space to make decisions that contradict the people's momentary preferences, but which might be vindicated in the months or years before the next election is scheduled. 

Orszagian government, by contrast, seeks to improve upon democracy by constraining and circumventing it.   It is based on the belief that the most acute problem with American government is that experts lack the power their expertise deserves.  He advocates a constitutional system where rule by experts is the default option, saving us from having commissions whose recommendations "sit on a shelf collecting dust."

One reason to prefer Madison's solution to the problem of making democracy work over Orszag's is that it displays an astute sense that the abuse of power is an endemic political problem, one so old it's often rendered in Juvenal's Latin: Quis custodiet ipsos custodes?  Who will guard the guardians themselves?  If Orszag gets his way we will be forced to ask, where will we find the experts who know how to protect us from the experts?

Ohio Farmer

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

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 Course of Human Events

To the Members of the 112^th Congress:

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

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

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

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

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

James Madison adds his own moderating wisdom in Federalist 37:

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

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

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

Ohio Farmer

A Republican Form of Government

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

Ohio Farmer

Capacities of Mankind

To the Members of the 112th Congress:

In recent weeks, the course of human events—from Tunisia, to Libya, to Egypt, to Syria—reminds Americans once again that tyranny is common in the world, that it is hard to remove, and that it is even harder to replace it with freedom and good government. We Americans, of every political stripe, generally like to consider ourselves enemies of tyranny and friends of freedom in the world. Of course, we have lots of debates among ourselves (and with others) about what this means and what this requires of American foreign policy. These debates have been rekindled lately, and I take this occasion to recollect that America came into existence by overthrowing a tyranny and that we have had our own struggles replacing it with freedom and good government.

Our success in these struggles—to the extent that we have met with success—is due to moral and political habits and dispositions that arise from principles that must be learned. These principles and dispositions are the most essential conditions of freedom. Everything else is secondary. Without them, you might exchange an unpopular for a popular tyranny, an incompetent and destitute tyranny for a competent and wealthy one. But you will never have free government.

America began its experiment in freedom with what has become and will forever remain the most characteristic and defining American affirmation:  “We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights.”  The truth of human equality and liberty was asserted against all tyrannies—whether of race, class, or religion, one, few, or many.

That men throughout history tyrannized one another in an infinite variety of ways was not proof to the American founders that human beings do not possess equal rights by nature—rather it was proof of how rare and difficult a thing it is to secure them.  It is proof of the philosophic rigor, the moral discipline, the political sagacity, and the beneficence of opportunity that are required for reflection and free choice to prevail over ignorance, prejudice, accident, and force.

Proclaiming that all men everywhere and at all times possess by nature equal rights to life, liberty, and the pursuit of happiness, the American founders undertook the historic effort to secure these rights, so far as they thought they could then be secured, to a small people at a particular place and time.  They were acutely conscious of the limits of their ability to secure these rights.  When they were able to establish a “more perfect union” they understood full well how far from perfection they remained.  It was all the new republic could do in the first century of its existence to keep the American experiment in freedom from failing miserably at home while other less fortunate experiments struggled to give birth to  freedom in other parts of the world.

In the course of its history, the American people have many times fallen beneath the high standards they set for themselves at the beginning.  They have strayed from those principles, and they have forgotten them, and become confused about them, and allowed misunderstood self-interest to obscure them.  Our own experience has confirmed for us that democracy requires more of its citizens than any other form of government and that it is no accident that history provides so few examples of successful and enduring democracies.  We count our blessings—the blessings of liberty—when we reflect with John Adams, "how few of the human race have ever had an opportunity of choosing a system of government for themselves and their children," and how few have chosen well.

The “genius” of the American people at the time of the American revolution and founding made it both possible and necessary to establish a country based on the republican principles proclaimed in the Declaration of Independence.  As Jefferson said in explaining the genesis of the Declaration, the ideas expressed in it were “the common sense of the subject” in America.  He was merely expressing “the American mind.”  It was only because the American people had learned to embrace republican principles that it was possible to establish an American republic.  I mentioned in an earlier letter the American founders’ “honorable determination  . . . to rest all our political experiments on the capacity of mankind for self-government.” This was a determination, James Madison affirmed, “which animates every votary of freedom.”  But the founders understood that any people that wished to be free, including the Americans, would have to demonstrate this capacity for themselves, and continue to demonstrate it each generation.  

As the Declaration of Independence proclaimed, the just powers of government are derived from "the consent of the governed."  Only a people prepared to consent to a free government are capable of establishing one; and once they have established it, as Ben Franklin never ceases to remind us, they will need to have what it takes to “keep it.”  At the least, this means a people must be prepared to recognize their own humanity and that of their fellow citizens; they will neither aspire to be masters nor submit to be slaves; they must be prepared to rule and be ruled in turn and to abide by the laws they claim the right to make for themselves.

We know from our own American case, even with all the natural and historical advantages we have had, that it is not easy to achieve or to keep and pass on these capacities for self government. Experience and common sense tell us that these capacities are going to be even harder to achieve without the great advantages we have had. So let us be patient and moderate in our expectations from those who may face great disadvantages.

Ohio Farmer

Civility and Powers

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

Ohio Farmer

An Experiment in Self-Government

To the Members of the 112^th Congress:

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

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

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

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

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

Ohio Farmer