Letters from an Ohio Farmer

Democratic Government and Good Government

To My Fellow Citizens:

The American experiment, as these letters have argued (here and here), is a never ending
experiment. It is the experiment of every generation to prove again, as our Founders set out to prove, that democratic government can be good government.

Political philosophers have been debating the meaning of good government for centuries. It is safe to say that two requirements, defending against foreign aggressors and avoiding insolvency, are probably not sufficient for achieving good government but are absolutely necessary to any conception of it. No matter what else a government may achieve, if it allows the nation's subjugation or financial ruin it must be considered a failure.  

These elemental goals are especially difficult for democracies, however. For one thing, both require the majority of people to assent to managing public affairs by imposing tangible, short-term sacrifices for the sake of abstract, long-term benefits. This is exactly the maxim that the majority of people apply reluctantly and inconsistently to the management of their private affairs.

Moreover, even if a democracy's selected leaders succeed in persuading the nation that military preparedness or fiscal restraint is necessary in general, they will still face the problem of imposing the necessary sacrifices on particular citizens. That is, convincing people that soldiers should be conscripted, taxes raised, or subsidies cut is different, and easier, than responding to the "Yes, but" replies: Yes, we need more soldiers, but there are compelling reasons not to draft my kid. Yes, we need to balance the budget, but you should raise his taxes, not mine, and reduce their benefits, not ours.

Equality is democracy's fundamental principle, and majority rule is the obvious manifestation of that principle: If everyone's votes are equal, then the candidate or proposition that gets the most votes deserves to win. Majority rule would seem to equip democracies to impose sacrifices on minorities for the benefit of the whole society, perhaps in ways that lend themselves to the abuse of minorities.

Nonetheless, the history of democratic governance shows that minorities are often very successful at fending for themselves, despite majority rule. When, for example, the costs of a policy are borne by everyone, but are very slight, while the benefits are garnered by only a minority of the population, but a minority that is deeply committed to receiving and continuing those benefits, the correlation of democratic forces favors the minority over the majority. Federal price supports for farmers are an example of this phenomenon. Few citizens will vote against a politician because of a farm program that adds a few dollars a year to their tax bill or grocery bill, so no politician fears that supporting those programs will end his career. Many farmers, however, will vote against a politician who tries to end those programs, so politicians, especially from rural states and districts, have compelling reasons to perpetuate the subsidies.

In one respect, the democratic challenge of defending the nation is harder than preventing bankruptcy, since the sacrifices required by the latter expose no one to violent death or dismemberment. Viewed from another angle, however, this same distinction makes fiscal discipline the more difficult attainment. Washington, D.C., like every nation's capital, is crowded with statues of military heroes, whether generals mounted on horseback or enlisted men captured in a moment of valor, such as the Marines raising the flag on Iwo Jima. There are, by contrast, very few statues of Secretaries of the Treasury, and none showing a civil servant fearlessly subduing a spreadsheet.

The fact that keeping our national accounts in order is a permanent need, and a mundane one, means there will always be a gravitational pull in the direction of bigger deficits, growing debt, and increased borrowing. The historical record shows that there’s a further connection between martial and fiscal imperatives: big increases in the federal debt usually correspond to major wars. Thus, the federal debt, the total amount owed by the federal government to all lenders as a result of past borrowing not retired, increased from $65 million in 1860 to $2.77 billion in 1866, a factor of 43. It increased from $3.61 billion in 1916, the year before America entered World War I, to $25.95 billion in 1920, the fiscal year after the war ended. The debt then grew from $48.96 billion in 1941 to $258.29 billion in 1947.

Few would argue, of course, that it would have been better if America had lost or never fought these wars rather than incur the expense and indebtedness necessary to win them. One noteworthy thing
about this historical pattern, however, is that the wartime increases define plateaus rather than peaks. After incurring huge loans to fight a war, the federal debt never gets much smaller than it was at the end of the war, and never gives the slightest indication of reverting to the levels seen before the start of the war. These plateaus seem to be only partly explained by the duration of the loans needed to build ships and planes. Another part of the explanation is that wartime borrowing shows what the market and the electorate will bear. Lenders offer to loan the government much more money than it had ever before tried to borrow, and voters learn to live with levels of debt that had previously been unimaginable.

According to the field of economics known as public choice theory, the wonder is not that our budget deficits aren’t smaller, but that they aren't much larger. Borrowing more money will always be the least unpopular option in a democratic contest where the alternatives are taxing more or spending less. Americans can look at Greece or Spain, however, to see the dangers of borrowing as much money as the world is willing to lend. The nations that try it routinely wind up borrowing more than the world is willing to lend, and are forced to pay a high premium to induce lenders to make loans to governments that can't be counted on to repay them. This course leads into a fiscal death spiral, where a national government is forced to borrow at high interest rates because its ability to repay is dubious, but the high interest rates put such a burden on its finances that its ability to service its loans is in fact diminished. If we have the sense to attend to its lessons, daily experience is teaching us what it has always taught: that America must find a way for its democratic government to be a good, fiscally disciplined government.

Ohio Farmer

The Reason of the Public

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

 

Taxation and Unlimited Government

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

Ohio Farmer

Men Are Not Angels

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

Ohio Farmer

 

Among These Rights

To My Fellow Citizens:

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

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

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

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

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

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

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

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

Ohio Farmer

 

The Particular Glory of This Country

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

Ohio Farmer

Enlightened and Patriotic Councils

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

 

One People

To My Fellow Citizens:

Many advanced democratic countries have a big problem: stagnant or declining populations. Birth rates have dropped and the average age of citizens has risen. Unless something is done, the economic and financial strains on society could be disastrous.

One possible solution is immigration. But countries in Europe and Asia have struggled with the idea of immigration because they are not sure that they can take people from other parts of the world and still remain, for example, Danish or Japanese.

Is America any different? In the days after the 9-11 terrorist attacks, a television commercial aired that made a simple but profound point. One by one, people came onto the screen: they looked different, dressed differently, had different jobs, and were from different places around the country. But each one looked straight into the camera and said the same thing: "I am an American."

They were reminding us that we Americans are "one People," as the Declaration of Independence says in its opening line. It was a bold statement to make in 1776 considering that the Americans were divided into 13 often fractious and disunited colonies. What made Americans "one People"?

In the past, countries were united by a common tribe, race, or geography, or by being subservient to a common emperor. As emperors and kings faded away in modern times, so did empires and kingdoms. But people in newly democratic countries in Europe and Asia still tended to be tied together by common race, religion, or blood, or by the geographical lines drawn by former conquerors.

Was that true of America? In Federalist 2, John Jay says:

Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.

Jay was right: in our Founding era, Americans often shared similar ancestry, language, religion, type of government, and customs. We were certainly brought together by a common struggle in the Revolutionary War. Those things did help to unite us.

Yet it is also true that even among people who seemed so similar, Americans were very different from one another. They were made up of many different nationalities, denominations, and backgrounds. Underneath our commonalities and our differences, what made us the Declaration's "one People"?

As I recalled in a previous letter, Thomas Jefferson once described the Declaration of Independence as an "expression of the American mind." He didn't say the American "heart" or even the American "character"—but the American mind. That’s important. Our heart feels emotion; character is made up of habits and dispositions. But the mind holds our ideas and principles—the ideas and principles that shape our characters and govern our emotions and lead us to choose to live as we do. That is what unites Americans at the deepest level, binds us together as "one People," and makes us the distinctive people we are.

Americans do certainly have important emotions and habits in common. We are famous for loving our country, for example, in a way that strikes some other people as too exuberant. And we are known to be habitually optimistic: for an American, the glass is almost always half full. But those sentiments and attitudes are the products of the ruling principles that united us in 1776 and still do today. We love our country because it stands for freedom. We are optimistic because freedom makes us think that we can do anything we set our minds to.

This matters. It means that the newest immigrant can be just as American as someone whose ancestors came over on the Mayflower. In fact, new arrivals can be more American because it is sometimes easier for them to understand that American patriotism is not inherited; it cannot be passed down like property from generation to generation. It is born from an understanding of the country's principles and from conforming one's civic life to them. No one is more American just because his family has been living here for many generations; anyone—regardless of where he comes from or when; regardless of his race or religion or experience—can be an American if he embraces America's ruling principles.

That's why America has always been a place open to immigrants. A person doesn't have to "look" American to come here. He just needs to embrace the political consequences of the truths,

that all men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the pursuit of Happiness; that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

But he does need to embrace those truths. He has to want to be an American, not just someone who lives or works here.  Immigration has historically been a gift to America because it has always led to integration—to the newcomers becoming part of the "melting pot." Not that all our colorful differences in ancestry, religion, or customs melt away, but that we melt together morally and politically on the basis of the common principles that we all share as human beings, regardless of our race, religion, or background.

For good reason, immigration will continue to be a big issue in our national conversation. As we discuss it, let's remember the principles that should guide our thinking. Immigrants don't just bring new bodies, talents, and energy to the country. They can give us the opportunity to re-invigorate our American mind by reminding us all of the principles that make America what it is. They do this when they assume their American responsibility and become self-governing human beings who choose to live together according to the principles of liberty, equality, and the rule of law.

This is how our country renews itself in body and soul: by immigration and integration. It's how we become ever more the "one People" envisioned by our Founders.

Ohio Farmer

A Commercial Republic

To My Fellow Citizens:

The United States was founded as a republic, but there was a spirited debate concerning the kind of republic the new country would be. Thomas Jefferson advocated an agrarian republic based on self reliant yeoman freeholders. He believed that domestic manufactures engendered dependence and corruption, both of which would undermine the virtues necessary to sustain republican government.

Alexander Hamilton, on the other hand, argued for a commercial republic. Only such a system, he thought, could provide the necessary conditions for the security, prosperity, and liberty of American citizens. Over the years, many have argued that the Founders saw commerce as a means of channeling the passions of the people, implying that the American republic is based on the narrow self interest of citizens. But Hamilton's understanding was more elevated.

He saw a commercial republic as creating not only prosperous and free citizens but also virtuous ones. The obligations incurred through commerce and trade would, in Hamilton's view, habituate the citizens of the United States to the virtuous and law-abiding behavior necessary for self-government and provide opportunities for developing the excellence of the human intellect.

In addition, Hamilton believed that commerce would provide the prosperity necessary for American greatness. A commercial republic would not only create the military and naval power necessary to enable a limited republican government to protect the natural rights of its citizens to their lives, liberty, and property, but also offer a hospitable environment for the most high-minded citizens to achieve the honors—even fame—they were capable of deserving for their exertions on behalf of their country. As Hamilton wrote in Federalist 72, "the best security for the fidelity of mankind is to make their interests coincide with their duty."

Hamilton's view prevailed and the United States has risen to become the most prosperous and powerful nation in the history of the world. But recent ongoing economic crises have undermined confidence in the commercial republic that for so long created wealth and power for American citizens. The reason for these economic crises can be traced to the abandonment of the very virtues that Hamilton sought to instill in his fellow citizens.

The virtue necessary to sustain republican government has been replaced with a sense of entitlement and debased dependency. Many Americans have come to accept the Progressive or European social-democratic idea that the purpose of government is not to protect the equal natural rights of individual citizens—the rights invoked by the Declaration of Independence: to life, liberty, and the pursuit of happiness—but instead to adjudicate the distribution of goods and services among competing claimants.

Those who take this position view the United States, not as a community of individuals, but as an array of groups whose demands must be met. But since government produces nothing on its own, certain favored groups prosper at the expense of others. Progressives invoke the language of rights, but what they mean by the term are privileges or claims to resources that are granted by government.

The result has been an explosion of government spending on behalf of client groups that threatens the financial stability not only of the United States but also of a global economy that depends on America's financial stability.  Debt in and of itself is not the problem. As Hamilton proved, debt prudently managed on behalf of a government of limited power, can lubricate the wheels of commerce. But massive government spending to provide limitless entitlements for a dependent class of recipients produces not only economic problems but political and moral ones. The very concept of "entitlements" creates a dependency that is at odds with, indeed undermines, republican virtue.

At the same time, the U.S. government has pursued policies and imposed regulations tailor-made to destroy the spirit of entrepreneurship that fuels a commercial republic.  As a result, the American economy limps along, as businesses curtail hiring workers and avoid productive investment in the face of uncertainty about future economic policy. Like barnacles on a ship, government policies place a drag on the productive spirit of American citizens that is necessary to achieve the benefits of a commercial society.

In order to reap those benefits, it is necessary to reinvigorate that entrepreneurial spirit. This can only be done by reversing the culture of dependence that the demand for government-provided entitlements has engendered, which has separated interest from duty, contrary to Hamilton's admonition. The primary goal of American statesmanship today must be to reunite the interest and duty of citizens, in Hamilton's sense.

Ohio Farmer

Regime of Liberty

To the Members of the 112^th Congress:

9-11 changed everything:  so many have said.  But as we reflect on that day, it is good to recall what has not changed in the ten intervening years. 

Seasons have come and gone.  Leaves have turned color in New England's fall; flowers bloomed in the desert southwest with the spring rain.  Snow has piled high in the western mountains and filled rivers and reservoirs.  Drought has beset new areas, as it ended in others.  Torrential rains have brought flood waters; hurricanes have wreaked havoc; earthquakes shaken the West, the East, and points in between.  And the land has brought forth harvest after harvest.

Couples have fallen in love; babies have been born; the young have aged; some of the old, the famous and the unknown alike, have passed away, disease and time taking their toll.  But as always, the population of the United States has increased steadily, by more than 30 million.   Over 11 million people not born citizens became citizens.  All of them, like the millions who have come to us one way or another throughout our history, were drawn by the hope of a better life.

We have held two Presidential elections; over 130 elections to the Senate; over 1700 elections to the House of Representatives; and almost countless elections of Governors, state legislatures, judges, district attorneys, sheriffs, school boards, municipal commissions, and numerous other offices of public trust.  Some of these elections were barely contested, others bitterly fought, all part of the oldest continuing tradition of democratic politics known to history.

All of these events and many others have unfolded since 9-11, following a pattern unbroken since our Republic came into existence.  They manifest the unending concerns of the American people and of the republican government of, for, and by the people that has been ours for over 200 years.

Like floods, hurricanes and droughts, enemies remain part of our life as a people.  Among our current foes are those who oppose us because they do not accept the idea of the sovereignty of the people.  Only God, they believe, can be sovereign or all-powerful.  God must rule, therefore, not the will of the people.  Calling the people sovereign is blasphemous, and blasphemers must be punished or destroyed. 

Americans know that on this earth the rule of God always means only the rule of men, who claim to act in God's name and with his unlimited power and act merely in their own self-interest.  Americans reject such tyranny.  They long ago concluded that an all-powerful God may be disappointed in what His creatures do but could not be threatened by their exercise of his gift of freedom.  We suspect that those who kill and destroy in the name of a supposedly threatened God actually kill and destroy to defend their own privileges or their fragile sense of self-righteousness. 

In attacking the rule of the people, our current enemies are like those we have confronted and defeated before.  Nazis and Marxists similarly disparaged the sovereignty of the people, in favor of rule by a supposed master race or master class.  Not only did these former enemies disparage American principles, they disdained the American people.  They thought us cowards or too soft and divided to defend ourselves.  Our current foes made the same mistake.

It is understandable that our enemies underestimate the resolve and power of the people.  We do on occasion ourselves.  But when we do, we should recall what Thomas Jefferson understood, something else that has not changed.  A regime resting on the sovereignty of the people, a regime of liberty, will release immense energy and creative force.  More important, only such a regime can satisfy the age-old longing for justice—a human longing that will not be denied.  That is the true source of our power and our resilience.  It is in the light of this fact that we should contemplate the demands of peoples across the Middle East, especially the young, for governments based on the sovereignty of the people.  A sign of the weakness of our current enemies, of their impending defeat, is not their death but the rejection of their ideas by their own children.

As for ourselves, we should remember that government of, for, and by the people has never been easy, but it is best.  And it will endure and prosper, as will the people it serves.

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

The American Mind

To the Members of the 112th Congress:

We saw in the last letter that the revolutionary principles Americans declared to the world on July 4, 1776—the principles that gave rise to a New Order of the Ages when, in support of them, the American people pledged their lives, fortunes and sacred honor—were not "new principles . . . never before thought of." They were principles already well understood by the American people, who were in the midst of a historic conversation about the principles of political freedom, a conversation that gave birth to what Jefferson called "the American mind."  The Declaration of Independence expressed in bold American terms the logic of political freedom that had become the common sense of the American people.

One essential ingredient of this logic of freedom, which is still very much part of American common sense, was the idea that, because human beings are equal and free by nature, legitimate government can only arise from the consent of the governed. A nation dedicated to the proposition that all men are created equal will—if circumstances permit—be under a "government of the people, by the people, for the people." In other words, the principle of equality gives rise most naturally to a democratic or republican form of government. James Madison expressed this idea in Federalist 39, where he considered whether the government proposed under the new constitution would be "strictly republican." "It is evident," he wrote, "that no other form would be reconcilable with the genius of the people of America . . . [or] with the fundamental principles of the Revolution."

Because of our conviction that consent is the foundation of legitimate government, we are concerned in every election that the election be fairly conducted, truly expressing the choice or consent of the people. But although consent is the only foundation of legitimate government, it does not follow that all governments founded on consent deserve the respect of freedom’s partisans. The Founders did not suppose that a tyranny must be submitted to by a minority just because a majority elected it. That would mean asking those who are to be oppressed by a majority to accept their oppression with equanimity—as the rightful expression of the noble principles of democracy.  It would be to tell oppressed peoples everywhere to cease their struggles for their natural rights as soon as they learn they are outnumbered. What could be more slavish?

These days this point has particular relevance to the various uprisings—some apparently supported by majorities—across the Arab world. These uprisings and rebellions are typically against various forms of tyranny, but they often seem to possess the potential to replace one tyranny with another. How would Jefferson’s “American mind” think about such human events?  It would begin, I think, by acknowledging that majority rule is the natural authoritative expression of the consent of the governed; in the same breath, it would observe that free government is instituted to secure the rights of all the people, not just the majority.  The very purpose of free government thus sets limits to what even a majority may rightly do.

Jefferson, in his first inaugural address, expressed this idea with characteristic felicity when he urged his countrymen to "bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possesses their equal rights, which equal law must protect, and to violate would be oppression." The will of the majority must be exercised within the bounds of that moral order which legitimates majority rule itself.  A thousand tyrants are no more palatable than one.  Majority rule and minority rights are therefore inseparable principles of free government. Being bound to respect minority rights does not detract from the majority’s right to rule; it dignifies it. Americans are partisans of free government, but this does not make them partisans of elective despotism, at home or abroad. Oppressive majorities deserve no more respect from us than any other oppressors.

This leads to another ingredient of the logic of political freedom or of American common sense—the idea of "equal law," which Jefferson mentioned in his first inaugural. As we have noted, the idea of human equality and freedom carries with it the recognition of human rationality; it also contains within it recognition of the limits of human rationality.  Because human beings are by nature rational beings, one man may not rightly rule over another as he may rightly rule over a non-rational being (a dog or a horse, for example).  But also, because no man is all-knowing or all-good—that is, because human reason is limited and fallible and subject to human passions—one human being may never rightly subject himself to the unrestrained will or unlimited power of another. This is what Madison meant when he wrote that "government... [is] the greatest of all reflections on human nature."

If men were angels [he wrote], no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.

Human nature or human equality—the fact that human beings are neither angels nor mindless brutes—gives rise to the idea of constitutional or limited government. This is a political constitution that conforms to the natural constitution of man. Because human beings possess reason, their consent can give rise to legitimate government; because human reason is fallible and subject sometimes to unreasonable passions, human government must be subject to law.

It required much experience, reflection, and study for the American revolutionaries and founders to equip the American mind so that its common sense might establish free government that would be good government. Their exertions have left a rich legacy to us, making it easier—though never easy!—for us to ensure that America will continue to be what the revolutionaries and founders rightly thought it was at its inception—"the world’s best hope."

Ohio Farmer

The 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

The Course of Human Events

To the Members of the 112^th Congress:

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

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

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

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

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

James Madison adds his own moderating wisdom in Federalist 37:

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

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

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

Ohio Farmer

A Republican Form of Government

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

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

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

Ohio Farmer

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