Letters from an Ohio Farmer

America's Constitutional Story

To My Fellow Citizens:

We Americans have a constitutional history going back further than we usually think. It is an instructive history. We were a constitutional people long before we became a nation.  For nearly 170 years, England's North American colonists lived and prospered under the English (later British) constitution and thus enjoyed the rights and liberties of Englishmen.  They had colonial charters, of course, and they learned to cherish representative government.  But the wellspring of their rights and liberties, as they understood them, was the English constitution itself.  Unlike our present U.S. Constitution, the English constitution is unwritten.  In the seventeenth and eighteenth centuries it was best understood as a set of judicial precedents and institutional arrangements, developed over time, which ensured a balanced government. 

This balance guaranteed that no branch of the government (though they didn’t think in terms of branches the way we do) would become too powerful.  According to the English Whig historical narrative, the Glorious Revolution of 1688-89 expelled the would-be tyrant King James II, elevated Parliament, and thereby preserved English liberty through constitutional balance.  In a late-feudal and early-modern European world of absolute monarchies, English parliamentarians declared that royal power had limits.  Small wonder, then, that England's North American colonists thought themselves the freest people on earth.

But as Americans became more integrated into the British Empire, they came to understand liberty and constitutionalism in ways that differed from their brethren across the Atlantic.  Britain's clumsy efforts to extract revenue from the colonists—stamp taxes, tea taxes, etc.—ignited a great constitutional struggle.  When Parliament claimed the power to make laws for the colonies, America's political leaders met this claim with defiance.  "The true ground on which we declare these acts void," Thomas Jefferson argued, is "that the British parliament has no right to exercise authority over us."  In short, Jefferson and his compatriots declared independence from the British Empire in large part because they realized that the unwritten British constitution meant whatever Parliament said it did. 

Recognizing that an unchecked legislature posed as great a danger to liberty as did an absolute monarch, America's revolutionaries commenced the second act of our constitutional story when they set about drafting written constitutions, including the U.S. Constitution of 1787. History had shown that even in the English-speaking world power and liberty were constantly in tension. 
Societies need their governments to exercise power for the common benefit, but that power requires meaningful limits.  Fully discarding both divine right monarchy and parliamentary sovereignty, America's constitution-makers appealed to the sovereign consent of the people to impose limits on government authority and instruct public officials in what powers they may wield. 

The constitution-makers divided these powers among the three branches and between federal and state jurisdictions. They wrote bills of rights to serve as redundant checks in case any public official forgot the popular source and limited nature of government's powers.  To exercise powers not granted by the people through their written constitutions, Jefferson wrote in 1791, was to "take
possession of a boundless field of power, no longer susceptible of any definition." In the ensuing decades, America's post-revolutionary statesmen did not always agree on the precise meaning and limits of constitutionally enumerated powers.  Universally, however, they acknowledged a good people's sovereignty channeled through written constitutions as America's salvation from arbitrary rule.

This firm belief in the relationship between liberty, the sovereign people, and enumerated constitutional powers persisted into the twentieth century, when American progressives launched the third act of our constitutional drama.  For more than a hundred years the United States had grown and prospered. Americans built canals and railroads, settled the trans-Mississippi West, and assimilated millions of immigrants. Despite a cataclysmic rebellion and civil war, the Founders' constitutional order survived.  By the early 1900s, however, many came to believe that industrialization and modernization posed challenges for which the Founders' Constitution was inadequate.  National problems, Theodore Roosevelt insisted, required national solutions. 

As I noted in an earlier letter, progressives' belief in the inadequacy of eighteenth-century governments to deal with twentieth-century problems compelled them and especially their intellectual heirs on the political left to adopt a kind of "living" constitutionalism. The U.S. Constitution, they say, is organic; it must evolve as society’s challenges multiply.  It is true that on four separate occasions the first generation of progressives at least had the decency to amend the Constitution.  As they discover more and more "national" problems, however, modern progressives grow impatient with constitutional restraints and the people's sovereignty. They turn more and more readily to virtually lawless government-by-experts. When asked to identify constitutional authority for one or another proposed progressive remedy, they sometimes react with utter astonishment.

There is a strange irony in the name "progressive," for the progressives' "living constitution," in replacing enumerated powers and the sovereignty of the people with the unlimited sovereignty of government, resembles the British constitution we rejected over two centuries ago. The next historic act in America’s constitutional drama is to recover the Founders' Constitution.               

Ohio Farmer

Progressives and Regressives

To My French Friend:

You raise lots of good questions, Jean-Luc, about my previous letter on the speeches of Presidents Theodore Roosevelt and Barack Obama at Osawatomie.  For the moment, let me comment on just one.  

I think you are right to say that Mr. Obama drew a false parallel in his speech, when he compared himself to Roosevelt as he did.  Just as Roosevelt argued that the government had to have more power to counter the centralization in corporations of the wealth and power created by the industrial revolution, so did Obama argue that the government required yet more power to counter the centralization in corporations of the wealth and power created by the information revolution, the more recent transformation the President acknowledged our economy has gone through.  

The problem with this parallel is that the two revolutions are very different—in fact, they are opposed—in their effects.   Corporations centralized power during the industrial revolution because it was the most efficient way to get their work done.  All decisions, all actions require information.  Manufacturing a product requires thousands of decisions, for example, about raw materials, design, marketing, and many other things.  Getting the information to make those decisions is costly.  Bringing all those decisions and the processes they make possible under central control in a corporation reduces those costs.  Furthermore, when dealing with a mass of less skilled workers a hundred years ago, it made sense to give them simple tasks and to centralize control over them by giving them rules and regulations that they had to follow in carrying out those tasks.  The information revolution is changing all this. 

Consider your own situation.  You design and can manage industrial control systems for corporations around the world from France because the internet connects you to thousands of sensors that automatically feed you information.  The cost of gathering the information you need to decide and act on a problem in a California plant is a fraction of what it would have been even a few decades ago for the plant itself to do that work.  And you can do it more cheaply than they can because you can do it for many others at the same time.  Furthermore, you and your colleagues are skilled.  The company in California does not need to give you detailed rules on how to do your work.  In fact, such rules would make you less useful and productive.  They merely tell you what they want and they leave it to you to figure out how to do it.  The information revolution means that corporations can and need to decentralize, to disperse their power and authority. 

The administrative state of rules and regulations that Theodore Roosevelt championed was a response to industrialization.  The industrial age is ending, as the President himself acknowledged.  Shouldn’t the administrative state be ending as well then?  Instead, the President proposes more rules and regulations.  

Everywhere we look, whether the streets of Cairo or New York City, offices in France or family rooms in America, the information revolution is putting more information and thus more power into the hands of individuals.  Everywhere that is but in the minds of people like the President who acknowledge that our case is new, but who cannot think or act anew.  It is striking how backward looking, how trapped in the past so-called progressives are.   I agree with you that they should be called regressives. 

It is true, of course, that the transfer of power to individuals that I just spoke of will never be complete.  Neither you nor I are arguing for some kind of absolute individualism.  As I noted in my previous letter, we acknowledge, for example, that governmental action is necessary to ensure that none have unfair advantage.  But this does not mean that government action and power must always be the same or must always grow.  Given the information revolution, the transformation that the President acknowledged, our real task is not to keep building up the centralized industrial age bureaucracy but to figure out what aspects of that bureaucracy we can do without and what might need to be preserved but changed. 

The transformation we are going through has the potential to enhance human freedom, but while the President acknowledges the transformation, he does not acknowledge its potential.  At Osawatomie, he presented it not as an opportunity but as a problem that only government could fix.  If Jefferson were alive today, I think he would see this potential for freedom as he once saw such potential in America’s abundant land.  Living on one's own land, Jefferson thought, was the best way to ensure that citizens would live free and be safe in the enjoyment of what they labored to achieve.  Our circumstances have changed.  The age of the family farm has passed for most of us.  But the age-old longing for freedom and justice that Jefferson sought to satisfy can find fulfillment still, I believe, in the new forms made possible by the latest transformation of our lives.  Indeed, that transformation can give fresh life to individual liberty.  We should not let it be smothered in rules, regulations, and thinking suited to a by-gone era. 

There is more to say about all this, Jean-Luc, as you know, and I look forward to our future correspondence.

Ohio Farmer

 

The Shades at Osawatomie

To My Fellow Citizens:

On August 31, 1910, Theodore Roosevelt gave a revolutionary speech at Osawatomie, Kansas, and a couple of weeks ago President Barack Obama visited Osawatomie and wrapped himself in the mantle of Roosevelt's revolutionary progressivism. Thomas Jefferson saw it coming. 

Jefferson did not predict that Roosevelt would make a speech at Osawatomie. He merely predicted the subject of Roosevelt's speech. Jefferson feared that at some point social and economic change would call into question the character of the American republic, portending a revolution that would change it fundamentally. He feared this because he talked to a French peasant woman. 

Jefferson was then Ambassador to the Court of Louis XVI. Representing a poor government, Jefferson was not able to afford the display thought necessary for the French Court’s most elaborate ceremonies. So, one day, instead of attending such a ceremony, Jefferson took a walk in the countryside near Versailles. He happened upon an old peasant woman. Falling into conversation with her, he listened as she spoke of her difficulties. As Jefferson later wrote to a friend, he learned that she had no land and was not allowed onto the vast lands held by the nobility who used them only for sport, riding at their pleasure and hunting wild game. She was entirely dependent on the hand-outs and odd jobs the aristocrats deigned to give her. Her children, she told Jefferson, often went to bed hungry. 

Jefferson was appalled by the destitution of the woman. He told his friend that the critical difference between France—indeed the rest of the world—and America was that in America land was available to all who wished to work it. The land gave opportunity—equality and liberty—to all and secured to Americans the blessings of republican government. And so it would be, Jefferson wrote, until the land was used up. 

As it turned out, industrialization, not population growth, used up the land, so to speak. As America industrialized, people left their farms. As they did so, the wealth generated by industrialization spread to all but unequally. Individuals and corporations amassed great sums. Theodore Roosevelt and people like him, who called themselves Progressives, believed that the old limited national government championed by Jefferson was no longer adequate to these new circumstances. At Osawatomie, as the shade of Jefferson hovered over him, Roosevelt announced the New Nationalism. 

By the New Nationalism, Roosevelt meant a powerful president acting in the name and on the behalf of the people who would control the "special interests" (Roosevelt's term) to ensure equality of opportunity. At Osawatomie, in the spirit of Jefferson, Roosevelt spoke of "the triumph of a real democracy, . . . of an economic system under which each man shall be guaranteed the opportunity to show the best that there is in him." Roosevelt understood, as Jefferson did, that opportunity so understood satisfied the age-old longing for justice and at the same time encouraged our virtue—the best there is in us.

The revolution in our government foreseen by Jefferson and announced by Roosevelt did not concern its goal—equality of opportunity—but the means to achieve that goal. Jefferson as much as Roosevelt thought government should prevent monopolies. But beyond this Jefferson believed that liberty itself was equality of opportunity and limiting the power of government would maximize liberty. Roosevelt believed that the great wealth and power of individuals and corporations required a powerful central government to ensure equality of opportunity for everyone else. 

But the progressive revolution did not stop with the means our government used. Over time, gradually but inevitably, it sought to change its goal. How do we know that there is equality of opportunity? Is it enough to pass laws and impose regulations? If we do so, and inequalities persist or reappear, then perhaps government must do more. It must not simply ensure an equal playing field but a more equal score at the end of the game. 

This is the view President Obama expressed in his speech at Osawatomie. With the shades of Jefferson and Roosevelt hovering over him, he said that the fundamental issue was that inequality of outcome meant there could be no equality of opportunity.  "Gaping inequality," he announced, "gives lie to the promise that's at the very heart of America: that this is a place where you can make it if you try." 

Like Jefferson and Roosevelt, Obama sees equality of opportunity ("you can make it if you try") as the heart of America. Unlike his predecessors, however, he believes that inequality of outcome or wealth denies equality of opportunity. If it does, then to save the heart of America, the government must work to prevent inequality of outcome.

Let us note immediately that the President made no argument to prove that inequality in wealth, "gaping" or otherwise, reduces opportunity. He merely asserted what has become a Progressive dogma, one that revolutionizes the goal of our government as much as Roosevelt revolutionized the means.

What are we to make of these revolutions? Let us acknowledge that governmental action was and is necessary to ensure that none has unfair advantage. All agree on this. But let us also acknowledge the contradiction at the core of Roosevelt's revolution: restricting liberty cannot create opportunity. The power of government, therefore, should be as limited as possible, so the heart of America, opportunity for all, beats as strongly as possible. Let us acknowledge, finally, that a government that works to equalize outcomes, the hope of Obama's revolution, will need to exercise such power that it will imperil opportunity and thus both justice and virtue even more than Roosevelt's revolution did. This above all was the revolution Jefferson feared as he walked with the peasant woman and looked to the future.

Ohio Farmer

 

Caesars or Presidents

To My Fellow Citizens:

We have noted in these letters that the modern presidential campaign has become a long, long job interview, which favors applicants who are good at running for president but not necessarily those who are good at being president.  A vetting process that favors those who are good at electoral politics over those who are merely good at governance is obviously detrimental to America’s republican experiment. Serious as that problem is, it seems to me that the danger to constitutional government from modern presidential politics goes even deeper. 

We are about to observe the 100th anniversary of the presidential campaign of 1912.  That campaign stands as a key dividing line in American political history. Former president Theodore Roosevelt's electrifying campaign in 1912 as the nominee of the Progressive Party signaled the dawn of a new political era—the one we still live in. To get an idea how momentous was the change wrought in the 1912 campaign, it suffices to reflect that, in decisive respects, that campaign had a lot more in common with the 2008 presidential election than it did with the election of 1908. 

The core difference is that before 1912, presidential campaigns were conducted more by political parties than by individual candidates appealing directly to voters, and following a successful campaign, the president governed more as head of a party, as well. Teddy Roosevelt lost the 1912 election, and the Progressive Party never again really mattered, but its spirit—its Caesarian impatience with the mediating institutions of political parties and constitutional checks and balances—came to define the political framework America lives in to this day.

It is not simply, then, that we have different kinds of candidates than we did before 1912, but that they are running for a different kind of presidency.  TR urged Americans in 1912 to regard the president as "the steward of the public welfare."  This Caesarian conception of the presidency will not hesitate for a moment to ride roughshod over the impediments of constitutional government limited to securing the natural rights of the governed.

President William Howard Taft finished third behind TR and the 1912 Democratic nominee, Governor Woodrow Wilson of New Jersey.  Taft, as a result, has the unfortunate distinction of being the only American president to run for reelection and not receive even the silver medal for coming in second.  (He has the happier distinction of being the only president also to serve as the U.S. Supreme Court's Chief Justice, thereby heading two of the three constitutional branches in the course of a public career.)  Taft's defeat was not just a personal rebuke but a setback for the cause of preserving, as he put it, "all the checks and balances of a well-adjusted democratic, constitutional, representative government."  One hundred years later, the Tea Party's exertions argue that this cause is not defunct, while the Tea Party's grave challenges argue that the restoration of a constitutional order that has been ceding ground for a century will be, at best, an arduous endeavor.

It would be helpful, in that work, to have presidents who secured and held office with the circumspection that comes with being a guardian of the constitutional order, rather than the imperiousness that suits the "steward of the public welfare."  One of the consequences of 1912, however, is that the former kind of politician is less likely today to seek and win the presidency, and the latter is more so. 

As late as 1952, Dwight Eisenhower could "announce" his candidacy for the Republican presidential nomination with a single sentence in a letter that was made public while he was serving as NATO commander in Paris.  After stipulating that "under no circumstances" would he seek a political nomination, Ike wrote, "Of course, there is no question of the right of American citizens to organize in pursuit of their common convictions."  That opaque truism was all it took to send the signal: Eisenhower would run for president if the Republicans drafted him as their nominee.  The next year he took the oath of office.

It is impossible to imagine any presidential aspirant today even feigning such reticence.  It is quite telling that while politicians in the 19th century were said to "stand" for public office, the accurate formulation favored since early in the 20th century is that they "run" for office.  Every four years they run farther and faster. 

The rules of the game now require those who seek the presidency to: raise tens of millions of dollars in increments limited by law; spend the better part of two years giving speeches, shaking hands, and participating in debates and town hall meetings; and subject every detail of their personal and financial lives to inhuman scrutiny.  Little wonder that such a process attracts campaigners with Caesarian ambitions and the "arts of popularity" more than "characters preeminent for ability and virtue," as the Founders had hoped.

If we are not happy with that political process and its results – and we shouldn't be – we need to change them.  It won't be easy or quick, but it will be worth the effort—to ensure that the White House is not occupied by a Caesar but by a President who understands that he is filling a constitutional office that works within and respects "all the checks and balances of a well-adjusted democratic, constitutional, representative government."

Ohio Farmer