Letters from an 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

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