Letters from an Ohio Farmer

The American Conversation

To My Fellow Citizens:

It is Constitution Day again. Two-hundred-and-twenty-five years ago, on this day in 1787, the delegates to the Constitutional Convention in Independence Hall in Philadelphia signed the document which, when ratified by the people, would become the "supreme Law of the Land." This act was the culminating episode in the historic drama begun in the same hall 11 years earlier when the Declaration of Independence, appealing to the "Laws of Nature and of Nature's God," proclaimed to the world the experiment in self-government being inaugurated by the newly sovereign American people.  

In 1776, the American Revolutionaries had pledged their lives, fortunes, and sacred honor to what Lincoln would later call America's "philosophical cause." At the heart of that cause was the central idea from which all other American political ideas radiate, the self-evident truth that "all men are created equal."  These most American words contain within themselves the idea of limited self-government—the idea of political freedom itself: All men are equally endowed with certain unalienable natural rights, governments are instituted with the limited purpose of securing these rights, and the just powers of government are derived from the consent of the governed.

In 1787-88, in the greatest constitutional conversation the world has yet seen, the American Framers would author and the American people would authorize a Constitution intended to establish forms through which Americans might more perfectly achieve the ends set forth in 1776. The Constitution would be an instrument by which the sovereign consent of the American people might govern not willfully, but reasonably, as the cool and deliberate sense of the country.  Governing ourselves through the forms of the Constitution we would make ourselves a constitutional people, demonstrating to ourselves and to the world, as it had never been done, the capacity of mankind for self-government. 

One-hundred years ago, in his successful 1912 presidential campaign under the banner of the "New Freedom," Woodrow Wilson repudiated this American constitutionalism and the American Constitution itself as outmoded ideas that needed to be replaced by continually new ideas to fit continually new times. He repudiated the Founders' appeals to the laws of nature and to natural rights in favor of the laws of evolution, the laws of History and Progress. More than any other figure, Wilson became responsible for bringing directly into American political life the idea of a "living constitution," a constitution to complement a government whose powers must continually "evolve" and expand to meet continually evolving and ever-expanding needs.  Wilson's New Freedom was the first wave of progressivism in what would become in decisive respects a progressive century.

The New Freedom was soon followed by Franklin Roosevelt's New Deal, in which FDR, bringing up to date the famous first 10 amendments to the Constitution, proclaimed a "second Bill of Rights"—an "economic bill of rights"—that continues to set the progressive agenda to this day. These alleged "rights"—which include, among other desirable things, a well-paying job, recreation, a decent home, a good education, and adequate medial care—have in the eyes of progressives assumed constitutional status under the living constitution. They achieved the status of "entitlements," not through any amendment procedure authorized by the Constitution, but through the mysterious amendment process of history with a capital H and progress with a capital P. To secure such vast entitlements, with which we are allegedly endowed by History and Progress, government must become vast—it must become the "welfare state," which has replaced the limited constitutional government constructed by the Founders to secure our natural rights and the civil rights following from them. 

A generation after Roosevelt's New Deal, Lyndon Johnson's Great Society aimed not only to complete the New Deal, but to expand it immeasurably. "The Great Society," said LBJ, "is a place where every child can find knowledge to enrich his mind and to enlarge his talents . . . where leisure is a welcome chance to build and reflect . . . where the city of man serves not only the needs of the body and the demands of commerce but the desire for beauty and the hunger for community. . . ." LBJ's Great Society aimed not only to relieve all material needs, but to provide spiritual fulfillment to all Americans. To secure these hitherto unimaginable new entitlements would, of course, require government without limit. Limited constitutional government responsive to the cool and deliberate sense of the citizenry was buried under multiplying labyrinthine bureaucracies, staffed by supposed experts.

These three great waves of progressivism, each one offering new transformations of the Founders' Constitution, justified by endlessly evolving History and Progress, constitute an evolutionary revolution that has in the course of a century made limited constitutional government in America almost invisible. "Hope and Change" was intended as the next progressive wave. Barack Obama's promise just before his election in 2008 was perfectly in keeping with the spirit of his progressive predecessors: "We are five days away," he vowed, "from fundamentally transforming the United States of America." He wasted no time proving he meant exactly what he said.

The determined progressivism of the new President and his party sparked a widespread movement among American citizens to restore limited constitutional government in America. The historic 2010 elections brought into office a House of Representatives that insisted in unprecedented ways on respect for the Constitution. The constitutional seriousness of this movement and this Congress was greeted by progressive politicians and intellectuals with arrogant contempt. The arrogance came from the essential progressive article of faith—the belief that, above all, beliefs must go unquestioned—that history with a capital H and progress with a capital P are irrevocable, that "you can't turn back the clock."

But this could not be true, if the moral and political axioms of the American Revolution and Founding are true. Self-government and political freedom are not a wind-up clock. Repealing the President's disastrous progressive Patient Protection and Affordable Care Act (Obamacare) would be one effective way of proving this point, among innumerable other possibilities that present themselves to citizens and their representatives who are not frightened by the bogeyman of "History" and "Progress," and are determined and happy to think for themselves about what might be best for the country.  And so, a constitutional conversation began.

This is the kind of conversation the American people characteristically have at pivotal moments in our history—about the foundations, purposes, scope, and form of our government, about the rights and duties of citizens, and the responsibilities of their representatives. This series of essays modestly hopes to contribute to this urgently necessary American conversation.

Ohio Farmer

The Distributive Constitution

To My Fellow Citizens:

From my first letter, I have spoken of the need for attention to the Constitution if we are to continue to enjoy the blessings of limited government. Now the call for constitutionalism has been sounded on the left, in hopes that Americans will come to enjoy the blessings of government without limits.  Well, this is why we're having the national conversation we are having.

In a leading journal of leftist opinion, a widely published law professor at a major university recently criticized those who see the Constitution as a document that limits the power of government.  He argues instead for what he calls a "Distributive Constitution." In this view, the Constitution gives all three branches of the national government the right and duty to ensure that all Americans have a decent livelihood, and that no gross economic inequalities mar American democracy. 

To ensure these things would indeed require a government of unlimited powers. It would need to be able to control virtually all aspects of the economy—for example, to ensure employment for all.  It would also need to define "gross economic inequality" and take from everyone who had too much according to this definition, in order to give to those deemed to have too little.  This distribution of wealth is the core of the distributive constitution.

The Constitution, of course, gives none of the branches of the national government any such powers.  What is the argument that they should have these powers?

It is a version of the century-old progressive argument, and it goes like this:  Gross economic inequality leads to political inequality.  A democratic form of government is not possible if citizens do not have "economic independence and material security."   Americans had this when they were a nation of farmers, each living on and drawing his substance from his own land.  Each farmer was his own boss and in that way was independent and free.  Industrialization and urbanization destroyed this way of life and rendered working Americans "wage slaves, ciphers and servants, ill-equipped for democratic citizenship."

To rectify this situation, according to the progressive argument, the national government had to step in.  It did so principally by legalizing and supporting unions and by slowly establishing assistance programs such as social security and unemployment benefits.   The Second Bill of Rights, proposed by FDR in 1944, was an important expression of progress, including as it did the rights to a job, a house, and medical care, among others.

In sum, the Constitution of limited powers must become the distributive constitution of unlimited power because the ultimate purpose of the Constitution is to ensure democracy.  If "economic independence and material security" are necessary for democracy, and the distribution of wealth is necessary to ensure economic independence and material security, then the Constitution must become the distributive constitution to ensure such conditions. As paradoxical as it sounds, a national government of unlimited power is necessary for democracy.

This argument—which represents an influential segment of opinion in the country—is not merely paradoxical; it is wrong. Consider first how it understands the situation of Americans.  If we rely on the private sector, we are wage slaves.  The proposed alternative is dependence on the national government.  It will guarantee us education, jobs, a house, medical care, and pensions.   It will take care of us from cradle to grave, as the saying goes.  Why, we must ask, is dependence on government better than dependence on private wealth?  Do we know of a government with the powers proposed for the distributive constitution that has not abused those powers?  Does not the grant of Federal money always come with restrictions and requirements about what recipients can and cannot do?  In this light, the distributive constitution appears incompatible with both democracy and freedom.

Not only will this progressive solution produce the problem progressives hope to avoid (the destruction of democracy), it is also based on a misunderstanding of the foundation of democracy. It is not true that industrial workers, dependent on the labor market, were deprived of their rights.  On the contrary, protected by the secret ballot, they voted in large numbers and elected officials who voted for their views.  Our leftist law professor cites any number of federal laws favorable to the interests of industrial workers. How did these laws come to be if the workers, by that very status, were deprived of their rights and America was run by an oligarchy hostile to the interests of most Americans?

Democracy does not require, then, that workers and all Americans be dependent on the government rather than the free market.  On the contrary, in the market there is a wide variety of bosses and the freedom to change jobs or start one's own business.  If we were all dependent on the government, there would be only one boss and no freedom to escape his control.

Nor is it true that owning a family farm guaranteed material security.  Many homesteaders failed and lost their farms.  Drought and pests destroyed crops.  Farm life was hard and always precarious.  But the insecurity of this life did not destroy the rights farmers enjoyed as free citizens.  Material security is not necessary for democracy. Fortunately so, since material security is impossible for any power on earth to guarantee. 

We must conclude, then, that material security and independence from the market are not necessary for democracy.  It follows also that the distribution of wealth and the distributive constitution are not necessary for democracy, either.  Indeed, on the contrary, in turning our government from one of limited powers into one of unlimited power, the distributive constitution poses a great danger to democracy.

Ohio Farmer

Changing Direction

To the Members of the 112^th Congress:

Much good has been done in Washington recently.  I do not refer to the details of the debt reduction agreement, some of which we have already noted, but to the change it signifies—a change of course for the country. Turning around a fleet of aircraft carriers is child's play compared to turning around the ship of state, but I believe we see before our eyes the signs of a great, ponderous movement of America in the right direction. We owe this hopeful movement largely to the determination of the constitutional conservatives within the GOP and to the good judgment of the new Speaker of the House of Representatives.

If you wonder why liberals are in a funk, why the President's approval ratings are hitting rock-bottom, why he signed off on the debt reduction agreement in virtual secrecy, why he is being criticized openly by progressives and even being compared to the feckless Jimmy Carter, why there is disarray within the Democratic Party, you need look no further than to those who elected a GOP majority in the House, the courage of the Representatives who were elected, and the prudence of Speaker Boehner.  He got almost everything he could reasonably have hoped for in the debt reduction agreement, producing the most radical reorientation of government in our generation. President Obama and the Democrats agreed to massive spending cuts, with more to come, and no tax increases.

This is a strategic and tactical disaster for the progressives and the Democrats, but, far more important is that the debt ceiling debate exposed what Speaker Boehner calls "the arrogant habits of Washington" and opened fundamental political and constitutional questions.  The debate in Washington is shifting away from the favors government might bestow to the question of the proper role of government. As satisfying as his political victory must be, Boehner should be most encouraged by the opening now created to begin a broader conversation about big-government liberalism—really limitless-government liberalism—and why it must be reined in.

If those who brought this about remain resolute, there is a chance of bringing American government back within the bounds of the Constitution.  Boehner and his Republican supporters are beginning to disprove an assumption held by progressives and liberals (and the media) since the New Deal: that government will always grow in size and scope, that all spending increases are permanent. This is a historic change, a movement toward re-establishing public recognition that there are some things it is better not to ask government to do (see Constitutional Lines). The ear of the public is now listening to the argument for limited self-government. If their elected representatives and other public leaders can continue to explain why limiting the power of the federal government is a good thing, we have the opportunity to form public sentiment into a durable governing consensus.

During the debate over the debt ceiling, much was said about how our government is so divided that it is dysfunctional, and how the solution to the perceived problem is bi-partisanship. Some went so far as to assert that the purpose of government is efficiency. Others argued or implied that a parliamentary system would be preferable to the constitutional one we have. After all, there are problems in the world, and our government is not solving them. 

We continue to hear such assertions on a daily basis, but they miss the point. The fact is that our Constitution builds in division (see The Sense of the People); it deliberately makes it difficult to form majorities, and even more difficult to hold them. The Constitution's purpose is not efficiency.  Our constitutional government is not unified, as is, for example, the British Parliamentary regime (we note in passing that the British prime minister speaks for the government, while our president speaks for his administration, only a part of the government). With its federalism, separation of powers, bi-cameralism, and other inventions of prudence, our republican regime intentionally divides, checks, and balances power, so that,

in the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.

Of course, this means that large issues cannot be quickly resolved. Changing direction in our constitutional regime is wonderfully and deliberately complicated.

The easiest and quickest way to form part of our constitutional majority is through the House of Representatives.  Should we be surprised that the new majority in the House—formed but two years into the majority that won the presidency and both branches of Congress for the Democrats—should assert itself?  And should we be surprised that the President's response is to ask this newest majority to become bi-partisan (read "Democrat")?  Politics is not rocket science.

The election of Ronald Reagan in 1980, along with the first Republican Senate majority since 1954, alerted us to divisions in the American electorate that had been muffled during the prior fifty years. Since then noisy debates have continued, with Republicans losing the Senate, then regaining it, losing the presidency, then winning the House, then losing it, and so on. We will need more than a few electoral cycles—and continued conversation and persuasion from the Republicans—to see whether the determination to limit government will take root in public opinion and become the principle of a new governing majority in American politics. In the meantime, let the divisions and the arguments for and against constitutional limits continue. Public reflection and constitutional deliberation is our strength, not our weakness.

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

The Sense of the People

To the Members of the 112th Congress:

In the negotiations over increasing the national debt ceiling, one fact is so obvious it has barely been mentioned: America has a government that can be, and currently is, divided. A Democratic president and Senate majority leader sit at the table with a Republican Speaker of the House.

Were the configuration otherwise, as it was between the 2008 and 2010 elections when Democrats controlled the House of Representatives as well as the Senate and the presidency, the debt ceiling debate would probably not be taking place at all. When Democratic majorities in both houses of Congress passed an increase in the debt ceiling in 2010, Republican legislators made some critical speeches but the bill moved swiftly to President Obama's desk for signature.

The possibility of divided government inheres in a constitutional republic where both houses of a bicameral legislature and the head of the executive branch are all elected by the people, but not by the same people at the same time. As our civics textbooks teach us, each Representative is elected for two years by voters in one of the 435 congressional districts. Senators are elected every six years, state-by-state. Because those six-year terms are staggered, only one third of the Senate faces the voters in any given election, while the entire membership of the House does. Presidents are elected every four years by the entire, constitutionally organized, national electorate.

Divisions like America's could never occur in a parliamentary democracy where the people elect the entire legislature at once. The party that wins a majority forms a government, and the prime minister – a member of the legislature, as are all the cabinet members – submits legislation that his party invariably passes. Such systems have been described as "dictatorships punctuated by elections."

More than a century ago, the American Progressives began their historic assault on our constitutional system, yearning for the clarity and dispatch of a parliamentary system. Woodrow Wilson, for example, sought sweeping reforms that would "make self-government among us a straightforward thing of simple method, single, unstinted power, and clear responsibility." H.L. Mencken, Wilson's contemporary, offered a less celebratory expression of the same idea: "Democracy is the theory that the common people know what they want, and deserve to get it good and hard."

One strand of the political philosophy woven into the Constitution is that sometimes the people don't know what they want, and other times they think they do, only to wind up regretting their "settled" opinions after some reassessment. The Constitution's authors believed, as one of them stated in Federalist 63, that "where the concurrence of separate and dissimilar bodies [such as the House and Senate] is required in every public act," the republic is best prepared to navigate "particular moments in public affairs when the people . . . may call for measures which they themselves will afterwards be the most ready to lament and condemn." The objective, as we have had several occasions to observe in these letters, is that "the cool and deliberate sense of the community" will "ultimately prevail."

Each party would clearly prefer to deal with the debt ceiling, and the nation's long-term fiscal problems, on its own terms, with both houses of Congress and the presidency under its control. If the Democrats had their way, that would mean higher taxes, especially on the rich; more borrowing, especially until the unemployment rate is much lower; and few spending cuts, especially from domestic programs. If Republicans controlled both ends of Pennsylvania Avenue, they would emphasize spending cuts, especially to domestic programs; less borrowing; tax reforms to apply lower, simpler tax rates to a broader, more vigorous tax base; and regulatory reforms to stimulate economic growth.

Which approach best reflects "the will of the people"? That may be a question that doesn't, at least for the moment, really have an answer. It's not as though either party's philosophy has been hidden over the past years, or undergone profound changes. The voters knew what they were getting when they gave Republicans control over all the federal elected branches from 2002 to 2006, and then when they disliked the results, and chose to check a Republican president with a Democratic House and Senate. The voters knew, or should have known, what they were getting when they empowered Democrats to run everything in 2008, and then again two years later when they decided to return the Republicans to a majority in the House to curtail the Democrats' policy-making latitude.

It would be fair to say, in other words, that the electorate has serious misgivings about both the Democrats' "big government" approach and the Republicans' "limited government" one. After signing up for either, the people quickly succumb to buyer's remorse and avail themselves of the opportunity to weaken or impede the "mandate" they conferred an election or two ago.

Americans didn't used to hedge their political bets this way. From 1900 to 1980 the White House, Senate, and House of Representatives were controlled by the same party for a total of 56 years, 70% of the time. Those 56 years included 14 consecutive years of Democratic control, from 1932 to 1946, when the New Deal was launched, and eight more from 1960 to 1968, which saw the beginning of the Great Society.

By the time the ballots from the 2012 election are counted, the same party will have controlled both houses of Congress and the presidency for only 8 of the preceding 32 years, or 25% of the time. This new era, in which divided government is the rule rather than the exception, was ushered in by the election of Ronald Reagan to the presidency, and GOP victories that gave the party its first Senate majority since 1954.

It's hard to believe that these two developments – the emergence of a credible conservative opposition to the governmental activism promoted by FDR and LBJ, and the beginning of a long era in which partisan majorities are rare and transient – are coincidental. Roosevelt and Johnson spoke to and for an American majority that liked the benefactions big government bestowed. Reagan spoke to and for a majority grown skeptical about the taxes, borrowing, and regulatory intrusions big government required.

That skepticism was sufficient to slow the growth of big government, but not to dismantle the New Deal/Great Society. For the past thirty-one years the American people have straddled an untenable position: voting in favor of most of what big government does, but against most of what big government requires. The debate in Washington over the debt ceiling is an echo of the debate, across America, over the proper scope and cost of government, a debate that seeks a resolution it has not yet found. The cool and deliberate sense of the national community will ultimately prevail, but it must first settle on one or the other of two alternatives that are fundamentally opposed.

Ohio Farmer

Political Success and Governmental Failure

To the Members of the 112^th Congress:

In his first debate with Stephen Douglas in 1858, Abraham Lincoln said, "In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed."

Seven score and 13 years after those debates we are now engaged in a great political contest over whether the welfare state established by the New Deal and built up continuously since 1932 can long endure. Its growth over the past eight decades and the financial crisis confronting it today suggest the need to qualify Lincoln’s rule: Public sentiment may ensure political success for a policy, but it does not rule out governmental failure.  Indeed, a policy can be a governmental failure precisely because it is a political success.

It is our pride as Americans that our government must answer to our consent. If we insist on consenting to bad government, it will be very hard for a democratic government to be good. When Lincoln was speaking of public sentiment, he knew that it was a public he had to persuade to do the right thing, a public with many strong inclinations to do the wrong thing. His point was that this is the most important job a politician has in a democracy—to persuade the people to do the right thing.

In a New York Times public opinion poll last year, 76 percent of all respondents agreed that “the benefits from government programs such as Social Security and Medicare [are] worth the costs of those programs.”  Even 62 percent of those who said they support the “tea party” movement thought so!  It’s hardly a surprise that public sentiment supports these programs, the mainstays of our welfare state.

The governmental problem is that the benefits of these programs are not only worth what they cost, but worth far more than they cost.  According to a recent study, a husband and wife, each born in 1915 and each earning the average wage during their working years, would have retired in 1980 having paid a total of $190,000 in Social Security taxes and $15,600 in Medicare taxes.  That couple could expect to receive, on average, $446,000 in Social Security benefits and $132,000 in Medicare benefits.  Depending on health and longevity, some couples received more and some less but the average benefits from the two programs would have totaled $578,000.

We shouldn’t be surprised that government programs become highly popular when, in effect, they hand out $372,400 checks rather than gold watches to new retirees. Being popular isn’t the same as being sustainable, however, and the popularity of Social Security and Medicare has gone a long way to help them become unsustainable.  The New Deal’s architects and advocates believed that rapid economic and population growth would make it possible to perpetuate social insurance programs’ large windfalls.  There’s no prospect, however, for the economic growth that would allow the federal government to pay out in the first half of the 21st century the kind of social insurance benefits that Americans came to expect in the second half of the 20th.  And as to population, everyone knows that people these days are having fewer children or, in many more cases now than in the past, none at all. As a result, we see the formation of a demographic bulge, with a disproportionately large number of older people receiving benefits from social insurance programs and a disproportionately small number of younger people paying taxes to finance those benefits.

We have no choice, then, but to address the financial imbalances built into our welfare state. The Democratic Party, defined since 1932 by championing the cause of an ever-larger welfare state, wants government spending to be the independent variable that determines tax levels.  The Republican Party, home to New Deal opponents in the 1930s and New Deal skeptics ever since, wants government spending to be the dependent variable determined by taxes.  Democrats hope that when push comes to shove, and we can no longer borrow our way out of the welfare state’s rickety financing, the people will come to the conclusion that large reductions in welfare state benefits are unthinkable, and they will support the large, widely applied tax increases that will certainly be needed to continue and expand our social insurance programs. Republicans have the opposite hope—that when voters come to realize the size of the tax increases needed to sustain our welfare state they will, at long last, be amenable to the kind of big reductions in government spending that have been ballot box losers for nearly a century.

America’s welfare state has grown for the past 80 years because people like its benefits.  There are two reasons it hasn’t grown even faster.  The lesser one is that people had some qualms, now largely forgotten, about the legitimacy of having the government redistribute wealth from some people to others.  The more politically consequential reason is that people like getting what the welfare state provides much more than they like paying for what it costs.

The Democratic Party has worked hard for many years to reassure people that generous welfare state benefits really are compatible with modest taxes, or ones that only very rich people and large corporations will have to worry about. There are two problems with this reassurance. First, it’s not true: a welfare state like the comprehensive ones in most European countries requires the kind of heavy, widely applied taxes common in Europe. Second, the fact that Democrats have always gravitated to the far-fetched argument that we can have New York’s social welfare system and South Dakota’s taxes suggests they’re afraid that most Americans won’t vote for the comprehensive welfare state Democrats advocate if the price is shown in big print on the first page, rather than buried in a footnote. Those fears form the foundation of the Republicans’ hopes that the welfare state we’ll end up with—if its costs are honestly reckoned and realistically shared—will be much smaller (and much smarter) than the one we have now.

We Americans celebrate our capacity to govern ourselves. Here certainly is a test of our capacity. The government can’t solve this problem without the help of the people, because the right government can’t get elected unless we the people are wise enough to elect those who are committed to make the choices that are necessary. Are we? Can we be persuaded to be?

Ohio Farmer

The Spirit of Checks and Balances

To the Members of the 112th Congress:

Senator Harry Reid of Nevada recently stated that the National Labor Relations Board, the regulatory agency established by the 1935 National Labor Relations Act, was “created in the same spirit of checks and balances” as the U.S. Constitution itself. NLRB “acts as a check on employers and employees alike,” said Reid. “It safeguards employees’ rights to unionize or not to unionize, if they so choose, it mediates allegations of unfair labor practices, and it does all this independent of any outside influence.”

Reid was defending NLRB’s decision to issue a complaint against Boeing, the aircraft manufacturer, for opening a new production facility in South Carolina to produce its latest commercial aircraft, the 787 “Dreamliner.” The NLRB filed its complaint, which is similar to an indictment in criminal court, because its acting general counsel contends that the company decided to open the South Carolina plant in order to threaten the International Association of Machinists, the union representing workers at Boeing’s 787 plant in Seattle, Washington.

The reasoning is that Boeing was attempting to punish IAM for going out on strike in the past, and intimidate it from going out on strike in the future, by opening a new facility to produce the 787 in a state where only 2.8% of private-sector employees are union members. Such an action, the complaint alleges, unlawfully discriminates against those Seattle workers represented by the union. Demonstrating a nice gift for irony, NLRB insists that it does not seek to prohibit Boeing from running its South Carolina factory, only to prevent the company from illegally intimidating IAM. The NLRB remedy, however, is to require Boeing to open and operate a second, unionized 787 factory in Seattle – one that would, of course, turn the non-unionized plant in South Carolina into a hugely expensive redundancy.

Reid’s argument could be considered a faint, though distorted, echo of the assertion in Federalist 51 that the Constitution’s “policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” In classical economic thought, of course, the defect of better motives in private affairs is supplied when individuals seeking their own benefit wind up inadvertently improving the lives of others by offering goods and services that are of higher quality or sold at lower prices than those provided by their competitors. As Adam Smith wrote in The Wealth of Nations, “It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our necessities but of their advantages.”

When he suggests that it is a logical extension of the American founding to have a government agency tell a company where it may and must locate its factories and offices, Reid is reflecting the New Deal idea that market competition was no longer a sufficient restraint on powerful industrial enterprises. The economist John Kenneth Galbraith argued for the same view in American Capitalism: regulatory agencies and labor unions imparted to our economic system the benefits of “countervailing power.” Such entities would offset the dominance of giant corporations in markets that were, Galbraith argued, theoretically but not effectively free.

Galbraith and Reid notwithstanding, for a federal agency to lay the groundwork to order a private company to build its products here and not there is contrary to, not consistent with, the logic of the American founding. For one thing, the Constitution protects both the ability of the individual states to govern their internal affairs, and the free flow of commerce between the states. States are prohibited, for example, from levying duties on goods “imported” from other states of the Union. The Constitution was, in this sense, the original North American Free Trade Agreement.

When Congress amended the National Labor Relations Act in 1947, it explicitly authorized state governments to enact “right-to-work” laws, which stipulate that private employers may not fire employees who refuse to join a union or pay union dues. Since a labor union is a kind of cartel, where sellers of labor agree not to compete against one another, right-to-work laws have generally had the intended effect of preventing unions from forming and growing. Since 1947, twenty-two states, including South Carolina but not Washington, have enacted such laws.

Since right-to-work provisions are legal, and the free flow of commerce between states is constitutional, it’s hard to see how the NLRB’s proposed course of action can be wise. If the agency winds up forcing Boeing to build production facilities in Washington, when the company would rather build them in South Carolina, it will nullify Boeing’s right to choose how to run its business, and South Carolina’s right to choose how to run its state.

There are other problems with Reid’s position. Although the Constitution states, “All legislative powers herein granted shall be vested in a Congress of the United States,” Reid means to restrain Congress when he describes NLRB, an entity created by Congress, as an agency that does its work “independent of any outside influence.” The outside influence he resents is Congress itself, or at least its Republican members. For Republicans in Congress to object to NLRB’s course of action concerning Boeing is “inappropriate … disgraceful and dangerous.”

Reid does not, apparently, have a gift for irony. He is outraged that elected members of Congress are objecting to an NLRB inspector bringing a complaint about the violation of NLRB rules before an NLRB administrative law judge – because of the threat such political “interference” poses to the “spirit of checks and balances.” The genius of the Constitution was to separate legislative, executive, and judicial powers. The genius of the New Deal was to combine them in agencies whose employees and friends want to keep them independent from – politics. Independent, that is, of democratic self-government. Independent, in other words, from the people.

“Which Side Are You On?” asks the anthem of the American labor movement. We know which side Harry Reid is on, and it isn’t James Madison’s.

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

"The Kind of Country We Believe In"

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

Ohio Farmer

A Boundless Field of Power

To the Members of the 112^th Congress:

Do the powers granted by the Constitution authorize the federal government to require private citizens to purchase health insurance policies? Leading progressive politicians and intellectuals dismiss this question as not serious—in their view the question is closed, irrevocably settled by the triumph of the New Deal. Nonetheless, the nation is taking it seriously, and is engaged in a historic constitutional deliberation on the question.

This individual mandate, as it has come to be called, is widely considered to be crucial to the Patient Protection and Affordable Care Act (PPACA), the “Obamacare” law enacted in 2010. It is considered crucial because the law prohibits health insurance companies from refusing to sell policies to people on the basis of pre-existing medical conditions, and from imposing a lifetime cap on the dollar amount of reimbursements.  In light of these provisions, it is reasonable to expect that without an individual mandate, many people will respond to Obamacare’s incentives by waiting until they’re seriously ill to buy insurance.  No health insurance company could survive if forced to operate under that arrangement, in the same way no property insurance company could survive if its customers could wait until their houses were on fire to buy homeowner’s policies.  

As part of our constitutional deliberations, lawsuits have been filed against PPACA, with mixed results; some federal judges have upheld the constitutionality of the individual mandate, and others have deemed it unconstitutional.  While the question makes its uncertain way to the Supreme Court, American citizens who are not necessarily judges, scholars or lawyers continue to wrestle with it as a matter of politics, in light of the larger question: What can the federal government do under the Constitution, and what can’t it do?

America has an instructive history of considering this question. The first big fight over it concerned the federal power to create a Bank of the United States.  When President George Washington’s Secretary of the Treasury, Alexander Hamilton, proposed such a bank in 1791, Secretary of State Thomas Jefferson objected.  He contended that because the power to create a bank was “not among the powers specially enumerated” in the Constitution, its establishment would be “a single step beyond the boundaries” drawn around the federal government, which would lead it to “take possession of a boundless field of power, no longer susceptible of any definition.” Hamilton’s position was that for each power the Constitution confers on the government it also and necessarily confers “a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power,” unless the Constitution specifically denies a particular exercise of power to the federal government. Hamilton’s argument persuaded Washington to sign rather than veto the bill creating a Bank of the United States.

Twenty-eight years later, Hamilton’s and Washington’s view was upheld in the famous Supreme Court decision, McCulloch vs. Maryland (1819).   As Chief Justice John Marshall wrote for the Court: “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” But Marshall also wrote that the government of the United States “is acknowledged by all to be one of enumerated powers,” and the “question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist.”  

The debate over Obamacare shows that, as Justice Marshall expected, the question about where to draw the line between legitimate and illegitimate exercises of federal authority is still very much alive in the American constitutional conversation.  Jefferson, so to speak, continues to argue with Hamilton. Those who challenge the constitutionality of the law seem concerned, among other things, at the “boundless field of power” Congress seems to claim when it asserts a power to compel all Americans to enter into whatever private economic relationships Congress deems convenient to its purposes. Federal district court judge Roger Vinson expressed some of this concern in the Florida case, State of Florida v. United States Department of Health and Human Services, where he wrote that "Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States."

It is true, as I remarked in my last letter, that with the entrenching and expanding of the New Deal and the Great Society, America has reached a point where “the federal government can do just about anything it wants, and can do it just about any way it wants.”  Our progressive politicians and intellectuals insist that this condition is irreversible—beyond serious question. The movement of American politics over the past two years seems to be proving that this is not the case. And so the progressive insistence that the question is closed gets louder and more desperate.  Just opening the question is a significant achievement, though it leaves much statesman’s work still to do—as Hamilton and Jefferson teach us. We can learn much from both of them as we continue to recover the kind of constitutional reasoning these letters hope to help restore to governing in our country.

Ohio Farmer

Reconstitutionalizing America

To the Members of the 112^th Congress:

To bring American government back within the bounds of the Constitution —to reconstitutionalize it—will be no easy or simple task.  How dismissive of the Constitution our government has become was memorably expressed by then Speaker of the House, Nancy Pelosi, in two widely quoted remarks about the health care bill that ultimately became the Patient Protection and Affordable Care Act (PPACA), whose constitutionality is seriously in dispute right now.  It is worth recalling her words, because they are a surface expression of an attitude toward our politics that is deeply entrenched and must be replaced by a very different attitude if we are to recover constitutional self-government. In October 2009 when a reporter from CNSNews.com asked, “Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Pelosi replied, “Are you serious?  Are you serious?”  Then in a March, 2010, speech, Pelosi said, “We have to pass the bill so you can find out what’s in it.”

Her rhetorical question—“Are you serious?”—was, of course, meant not to begin but to end conversation. Such contemptuous dismissal of citizens’ serious concern about constitutionality made many voters indignant last November, and they carried their well justified indignation with them to the ballot box.  The arrogant contempt continued in the sniffing dismissals that greeted the new Congress’s show of respect for the Constitution.  This arrogance comes from a belief that is held to be unquestionable. This is the belief that the New Deal irrevocably transformed America into a country whose central government has the authority to address any social or economic problem, and to mandate or proscribe any individual conduct plausibly related to alleviating that problem.  To the former Speaker and those who agree with her, it is preposterous—mind-boggling—that any 21st century American should presume to question this article of faith. The same arrogant incredulity struts and postures angrily in Wisconsin and Ohio and other states where public employee unions and their advocates in the media assert a right to collective bargaining that is somehow supposed to be regarded as sacred and beyond question. Whatever citizens may think of the merits of the question, the arrogance of such assertions sticks in the craw of those who cherish self-government.  

Pelosi’s second statement acknowledges that in this post-New Deal America, when Congress does something, it’s not really Congress that does it.  We have to pass a bill to find out what’s in it because what’s “in” it resides nowhere in the language of the legislation, but in the rulings and regulations that will be handed down, months and years after the bill-signing ceremony, by administrative agencies empowered by Congress to make all the practical policy determinations. What one New Dealer advocated in 1937 has come to pass—every important law enacted by Congress is really “a declaration of war, so that the essence of the program is in the gradual unfolding of the plan in actual administration.”  In PPACA’s declaration of war on the problem of people being uninsured, under-insured, or over-insured, it creates 159 new federal entities to devise and execute a battle plan.

Representative Pelosi is right about the way America is governed now: The federal government can do just about anything it wants, and can do it just about any way it wants.  It can do this because, in the course of the last two generations, the federal government has assumed responsibility for the social and economic well-being of every American.  This required the creation of programs for managing in minute detail all the social and economic relations between all the different members and segments of American society—employers and employees, producers and consumers, doctors and patients, husbands and wives, parents and children, and on and on. Because Congress cannot possibly write legislation governing so many details of so many interactions, it must outsource rule-making to boards, agencies and commissions, such as the Elder Justice Coordinating Council or the Cures Acceleration Network created in PPACA.   

As the New Deal was gathering steam the Supreme Court held, in 1935, that such “delegation run riot” violated the Constitution’s assignment of legislative power to Congress.  That is, the Constitution does not permit Congress to delegate its powers to any other governmental entity.
The Court has never explicitly overturned that decision, though it has implicitly negated it over the subsequent 76 years by acquiescing as Congress plunged ahead in riotous delegation.  When Congress delegates real governance in this way to agencies not answerable to the American people, it creates the conditions for lawless policy, subjecting every detail of American life to regulators bound by nothing but their own will.  

In the reading of the Constitution with which the newly elected House of Representatives began its first session, one hopes that every member gave full attention to Article One, Section One: “All legislative powers herein granted shall be vested in a Congress of the United States.” Supreme Court justice Hugo Black famously wrote about the First Amendment that “‘No law’ means no law.”  By the same token, we cannot reconstitutionalize American government until jurists, legislators, and citizens begin to insist, “‘All legislative powers’ means all legislative powers.”

This reconstitutionalization would have been assisted if the House had also sat for a reading of the Declaration of Independence, especially the part about governments “deriving their just powers from the consent of the governed.”  The 62nd Federalist Paper warned us against the sort of hyperactive government needed to secure every citizen’s socioeconomic well-being: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be tomorrow.”  The predicament becomes much worse when the blizzard of edicts is issued, not by “men of our own choice,” but by appointed and usually life-tenured civil servants who cannot be removed or rebuked by mere citizens.  This arrangement dilutes and attenuates the consent of the governed so severely that it deprives the government of what the founders considered the only source of legitimate power.   We should bend our efforts to recovering the full range and authority of the constitutional consent from which the just powers of government are derived.

Ohio Farmer

A Constitutional Conversation

To the Members of the 112^th Congress:

I write in all humility as your sovereign—I mean as one of the millions of American citizens who together bear the ultimate responsibility for this land of freedom that you and we love. I write as your new session gets under way because I am convinced that this is a pivotal moment in our country's history, when our choices and yours hold tremendous consequences for America’s future, for our children and grandchildren.

To begin your session, newly elected Republican members put the Constitution in the forefront of Congress's deliberations— scheduling an unprecedented reading of the Constitution on the floor of the House and proposing that every bill be required to cite constitutional authority for its enactment. Some Democrats and some in the media criticized these actions. I would like to think that the actions and the criticism may be hopeful signs, that they may mark the beginning of a conversation in the country that is overdue—a long, probing conversation among friends, with no holds barred.

The people should be active participants in this conversation. In earlier fateful moments in the life of the country—the Revolution, the debate over the Constitution, the Civil War and Reconstruction, the New Deal, the Civil Rights Era—the nation rose in serious and sustained argument about the foundations, purposes, scope, and form of our government. It seems to me that this is just the kind of conversation—a constitutional conversation in the broadest sense—that the country needs to have today. This is the first in a series of essays modestly hoping to contribute to this distinctly American conversation.

Who is the Ohio Farmer? He is not one person. In the manner of the Federalist Papers back in 1787-88, the Ohio Farmer letters will be written singly and jointly by different concerned citizens who would like their arguments to speak for themselves and to be judged on their merits. Like Publius, we candidly avow our political sympathies: We are partisans of the Constitution. But what does that mean? It is my hope in forthcoming letters to answer that question thoroughly.

To begin: it seems to me that one of the great errors of recent decades is the supposition that constitutional questions are matters only for lawyers and judges to decide. The Constitution begins with "We, the people," not "We, the judges." It belongs to all the people, and to all three branches of government. Thinking about the Constitution is a responsibility of our citizenship as it is of your statesmanship.

So, as you go about your business as members of Congress, it seems altogether fitting and proper not only to show reverence for the Constitution—or to criticize such shows of reverence, if you think that better serves the Constitution—but to express your own constitutional views as they bear upon your business—our business—and to argue in public on behalf of those views. This would seem to be fully in keeping with the oath you recently took to support and defend the Constitution, an oath I expect you will take with solemn seriousness, and in honor of which you will daily strive to make your conduct as legislators conform to the limitations and principles of the Constitution, as you understand them.

I am inclined to think that the best hope right now for developing a fruitful constitutional deliberation in the country arises from the political spirit of the citizenry that led to the historic recent elections. In those elections we expressed, I think, the greatest human power active in the world today, a power handed down to us—secured for us in revolution, preserved for us through civil war and world wars—through the generations since 1776. It is our constitutional responsibility to speak with such power—a power derivative from a source prior even to the Constitution, our fundamental right of revolution—and it is our constant prayer that our wisdom will somehow equal our authority. I think the freedom of this country, and the cause of freedom itself, depends on this prayer being favorably answered.

But, of course, we are not wise. As everyone has seen, we were roused in a historic way in these recent elections. In large numbers, we tore ourselves away from the private concerns of family and work to go into the public square, to join our neighbors in giving hours and days to the affairs we hold in common, to the common good of the country. But we brought our human and American limits and imperfections to these elections, as to all others.

We acted in some ways uncertainly and ambiguously and incompletely. We spoke with many millions of voices in several hundreds of separate elections just at the national level. And of course our minds will change as we see events unfolding and decisions being made in the coming months and years. That seems to be the nature of the sovereign you serve—not easy to please, often not easy to understand. But nonetheless the one you answer to and whose cool and deliberate sense you seek to represent.

So what did we mean in this election? What do we hope for from you? What do we have a right to expect from you? What does your and our constitutional duty require of us? In the course of these essays, which will appear weekly or with greater frequency as circumstances permit, I hope to consider conversationally these questions and the whole range of questions of mutual interest to sovereign citizens and their elected representatives.

But let me say again that I write in humility—humbled because the honor of being sovereign over this dear country is so great and the responsibility so momentous; humbled by my own limitations, limitations I and my fellow citizens readily acknowledge even while speaking, as we are bound to do, with sovereign gravity.

Ohio Farmer