Letters from an Ohio Farmer

Preserving the Constitution and the Nation

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

Constitutional Lines

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

Ohio Farmer