Letters from an Ohio Farmer

Willful Majorities or Constitutional Majorities

To the Members of the 112th Congress:

The 2012 elections loom in the near distance, and the presidential race could well be tighter than in 2008. So pundits, professors, and some politicians express concern, as they do every four years, that the candidate who wins the majority of the national popular vote might not win a majority of the Electoral College vote. I know this is a mathematical possibility; I think it has happened four times in 56 presidential elections. But does this possibility somehow violate the principles of fundamental fairness, disenfranchise the American voter, and bring disgrace to American democracy?  This is what is alleged every four years by those who advocate overturning the Electoral College. 

By the testimony of the Framers of the Constitution themselves, designing the office of the presidency was the most difficult task they faced. They began with the idea of having an executive chosen by the national legislature; they considered having him chosen by state legislatures, state governors, directly by the people, by special electors, and by various combinations of these methods. The mode of selection was a question inseparable from other questions: what powers to be granted to the office, the term of office, the question of reeligibility, whether the executive should be single or plural. These questions were also related to the foundations, powers, and structures of the other branches. And all these questions were related to the overarching question of how to construct a government that would best secure the safety and happiness of the people. 

After weeks of deliberations, the Framers came up with a mode of selecting the president that has managed to provide for the relatively seamless transition of government for over two hundred years.  Aside from this commendable record, the Electoral College seems to have other desirable effects. It discourages regional parties, moderating local interests by inducing them to seek a national and federal base; it provides protections for minorities, beneficently affects the character of majorities formed in selecting a president, and makes the president beholden not to the passions of a numerical majority, but to the Constitution.  In all these ways, the history of the Electoral College has justified Alexander Hamilton’s conclusion that, if this mode of selecting a president is not perfect, it is nonetheless "excellent." 

Dismissing all these interesting ingredients of our constitutional politics, opponents of the Electoral College demand simple national majoritarianism in the selection of our presidents.  But they recognize that they do not themselves have the constitutional majority necessary to amend the Constitution.  So, with no apparent sense of irony—dubbing themselves now the “National Popular Vote” movement (NPV)—they have devised a way of nullifying the Electoral College by substituting a constitutionally dubious, potentially minority vote for the constitutional majority required in the amendment process.  The NPV has launched a movement to persuade states representing 270 electoral votes—the number it takes to win the presidency under the current electoral college system—to agree through a “compact” to award all their electoral votes to the presidential candidate who wins the popular vote nationwide.  

Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont, Washington state, and the District of Columbia have already agreed to this compact. A bill to make California part of the compact (AB 459) has just been approved by the California legislature and awaits the signature of Governor Jerry Brown. If California’s 55 electoral votes are to be added to the compacting states, they will be about half way to the 270 votes needed to activate the compact. In each of the states participating in the compact, the majority vote of the states’ citizens is to be dismissed—or, actually, reversed—if it disagrees with the majority vote of the nations’ citizens. If a candidate wins a state but loses the national popular vote, this compact requires the state to allocate its electoral votes not to the candidate who wins in the state, but to the candidate who loses—some democracy!  

The NPV seeks constitutional authority for its effort in Article II, Section 1, of the Constitution, which says regarding the election of the President:  “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”  Their ambitious reading of this article shows the respect for the Constitution that one would expect from a movement seeking to undermine the constitutional requirements for elections by circumventing the constitutional requirements for amendments. 

As to Article I, Section 10, of the Constitution, dealing with interstate compacts, the National Popular Vote movement dismisses it as irrelevant. This is what the Constitution says:  “No State shall, without the consent of Congress…enter into Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay” (emphasis added). But the NPV argues that their “compact” is none of Congress’s business.  Do you think presidential elections are none of your business? 

We Americans are a constitutional people. From the beginning, we insisted that our politics must be answerable to the consent of the governed, and we devised constitutional ways of constructing and shaping our authoritative consent so that our choices would not reflect mere willful majorities but would reflect the cool and deliberate and just sense of the community.  If we are to change the electoral system in a fundamental way, we should engage, not in constitutional trickery, but in the constitutional deliberation provided for the purpose—as we have done several times in the past.  We should always be skeptical of attempts to circumvent provisions very deliberately put into the Constitution, just because a loud interest group of the moment finds them inconvenient. Where populist passion seeks to circumvent the Constitution in order to remove a constitutional check on populist passion, we should be all the more skeptical. 

Ohio Farmer

Novus Ordo Seclorum

To the Members of the 112th Congress:

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

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

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

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

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

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

Ohio Farmer

A City Upon a Hill

To the Members of the 112th Congress:

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

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

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

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

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

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

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

Ohio Farmer

A Republic If We Can Keep It

To the Members of the 112^th Congress:

That America is emphatically an “experiment” in self government is a prominent theme of these letters. It is a noble experiment. We are honorably determined to stake the fate of our country on the capacity of Americans to govern themselves, knowing full well that this capacity is a rare and difficult thing for human beings to achieve and maintain. The capacity to govern ourselves is the capacity to set reasonable limits for ourselves. Our greatest act of self government in this sense was the act by which “we, the people” submitted our sovereign power to the Constitution, which is at once our creation and the Supreme Law over us.  We have seen in earlier letters various ways in which the Progressive project—which produced the New Deal, the Great Society, and their contemporary successors—aims to replace the Constitution with a “living constitution,” removing in principle all limits on what government might do or how it might do it. This has been the great challenge to self government for the past century. It remains the great challenge for us. It has not been, and it will not be, easy to meet it.

In his speech on April 13 at George Washington University, President Obama explained in his own way why this is the case. “You see,” he said, by way of explaining America’s deficit problem, “most Americans tend to dislike government spending in the abstract, but like the stuff that it buys.” Here, I think, the President is saying essentially what former Speaker of the House of Representatives, Thomas P. “Tip” O’Neill, meant by his most quoted maxim: “All politics is local.” The Progressive agenda counts on the fact that we Americans like the stuff government spending buys, just as Tip O’Neill counted on all politics being local. 

Whenever it was that O’Neill uttered that nugget, he was speaking as a politician, not a political scientist.  A Democrat who won his first election—to the Massachusetts legislature—in 1936, the year voters endorsed the New Deal by overwhelmingly reelecting President Franklin Roosevelt, O’Neill won his last election—to a 17th term in Congress—in 1984, the year Ronald Reagan won his landslide reelection by challenging the propriety and feasibility of continuing the New Deal’s commitment to activist government.  In saying that all politics was local, O’Neill was pushing back against Reaganism, insisting that even if Americans had become dubious about activist government in general, they were still good New Dealers when it came to the particular benefits their own towns and neighborhoods could receive from government programs.  Like Tip O’Neill, President Obama thinks—and not without reason—that Americans will be good New Dealers when push comes to shove. They will like the “stuff” they can get from government so much that, despite their self governing inclinations, they will not be able to resist making themselves more and more dependent on government. 

Reagan and O’Neill, the two antagonists of the 1980s, fought to a draw.  Government spending on social programs grew more slowly under Reagan than under any other modern president, but he was never able to make good on the promise, announced in his first inaugural address, “to curb the size and influence of the Federal establishment.”  At the same time, the nation remained so wary of government’s ambitions that two years after O’Neill’s death a Democratic president, at the start of his own reelection campaign, found it necessary to declare, “The era of big government is over.” 

This political ambivalence, in which Americans have been constitutionalists in principle but Progressives in practice (recognizing the dangers of unlimited government in the abstract, but liking “the stuff that it buys”) has been durable, but there are signs it is becoming untenable.  At the “local” level, the New York Times reported last year that many bond market experts “fear that as states struggle with their growing debts, investors could decide not to buy the debt of the weakest state or local governments,” which “would force a crisis, since states cannot operate if they cannot borrow.”  The crisis seems most formidable in states like California, Illinois, New Jersey and New York—“blue” states, where big government remains very popular.  

At the national level, we read of numbers that tend to numb the minds of even the most public-spirited citizens: the Congressional Budget Office recently forecast that the path charted in President Obama’s 2012 budget would require the federal government to borrow $9.5 trillion over the next ten years.  Federal government debt held by the public equaled 36% of the U.S. Gross Domestic Product in 2007, before the recession began, and 62% of GDP in 2010.  By 2021 (just ten years from now), according to the CBO’s scenario, it will equal 87% of GDP, $20.8 trillion, a level most economists believe would be debilitating, especially since the forces increasing federal deficits are likely to be even stronger in the third decade of this century than in the second.  To cite just one problem, CBO projects interest payments on the national debt will rise from 1.7% of GDP in 2012 to 3.9% in 2021, by which time they will exceed $900 billion per year. That’s just the interest, as the President reminded us. 

It will not be easy for Americans to be constitutionalists in theory and Progressives in practice if our elected government cannot pay its bills.  If the lenders it depends on grow deeply skeptical about its ability to raise taxes or control spending, they will refuse to buy government bonds.  (The manager of the world’s largest bond fund recently reduced the percentage of its holdings in U.S. government-issued debt to zero.)  Less drastically, lenders will demand a costly interest premium to offset the risk of default by state and local governments, or of inflation sponsored by a federal government to reduce its debt by devaluing the currency.  At some point, the question becomes, not whether people like it when the government gives things to us and does things for us—as the President knows, both logic and experience demonstrate conclusively that we do—the crucial question becomes whether people like Progressive government’s endeavors enough to pay for them.  

If we don’t, if it becomes democratically impossible either to raise the taxes necessary to fund the government’s operations, or to reduce the scope of its activities to a level that can be accommodated by the taxes the people are willing to pay, then the Progressive project collapses.  The people will no longer mediate the disparity between what they demand from government and what they surrender to it.  Instead, decisive power over governance will pass to the lenders who keep public-sector operations afloat.   

Such a result would be a financial debacle.  The hard choices the people and their elected representatives now refuse to make will, in retrospect, be far easier than the policy changes an unsentimental bond market insists on as the price for further credit.  But the political failure will be even more deplorable.  In the well-known anecdote already recalled in these letters and sure to be noted again, Benjamin Franklin, upon being asked after the final meeting at Independence Hall in 1787 what kind of government the constitutional convention had fashioned, is supposed to have said, “A republic, if you can keep it.”  It is to America’s credit that we have kept the republic, and in many ways strengthened and improved it, for 224 years.  But we won’t be able to keep it for many more years if we do not return to our self governing ways. 

Ohio Farmer