Letters from an Ohio Farmer

The American Conversation

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

Security and Limited Government

To My French Friend:

In my previous letter, Jean-Luc, I promised I would write to you again about the necessity of limited government.  I thought I would do so not by reiterating my concerns about our budget deficits and national debt but by discussing security.  It may seem odd to do so, since even the most ardent advocates of limited government acknowledge that government must provide security for its citizens.  This is true but what this means now and in the future must change, I submit.  To persuade you of this, let me offer some history. 

Throughout America's history, concerns about security have varied.  After the war of 1812, except for the years around World War I and the period from 1941 to 1990, our principal security concerns were domestic, not foreign.  But whichever were most important at a given time—domestic or foreign threats—we have responded to them by increasing the power of the government. 

Consider our domestic security concerns.  In response to the rioting and disorder of the urbanizing United States, police forces replaced constables first in Boston and then in other cities, slowly but steadily, from 1838 onward.  In response to labor and other violence of the later 19th century, states organized national guard troops and then, beginning in 1905, state police.  Federal police began with the Secret Service in 1865, which fought counterfeiters and other violators of Federal law but also the violence of the Ku Klux Klan after the Civil War in states then under Federal control during Reconstruction. 

The Secret Service was joined about 40 years later by the FBI, which eventually took over the fight against the Klan and other disturbers of our domestic tranquility.  Since the establishment of the FBI in the Justice Department, a number of other Federal agencies have also gained police authority.  Not only did new law enforcement organizations come into existence but new laws did as well, to regulate the conduct of citizens and to authorize the activities of local, state, and federal police.  After the attacks on September 11, we did not create new police forces but we passed new laws increasing the power of the police that already existed.

Each of these increases in the police power created controversy.  Still, our history shows that our concern with security has steadily, if reluctantly, led us to increase the power of government.  I believe that we can no longer follow this path.  In the future, our security will require that we limit the power of government, not increase it. 

To see this, I think we need only consider how technology is developing.  I read not too long ago of someone experimenting with DNA in a home lab.  This was being done for reasons of personal curiosity and in the hope of curing disease.  But it could also be done with malicious intent, in hopes of inflicting grave harm.  Or think of all those who spend time online and the few who are led to violence or who lead others to violence through the internet.  In these cases, what must be the power of government, how intrusive must it be into the lives of citizens, to find the few who might do grave harm?  Given these threats can we continue to seek security by steadily increasing the power of government?

An alternative approach is present in our constitutional tradition.  The real issue of the Second Amendment is not whether the right to bear arms applies to all individuals or only those in the militia.  The Amendment is clear recognition that security should not be left only to professional soldiers (and we may now add professional police) but that it is the responsibility of every citizen.  We must encourage that spirit.  I believe that the American people still possess it.  We see it, for example, in the help they give each other in natural disasters. 

In encouraging that spirit, the objective is not to replace government and its police power with the activity of citizens.  It is rather to change our historical pattern as regards our security; to look first to increase as much as possible the scope of citizen action, in order to limit as much as possible the scope of government action.  Given the security threats we face, only such an approach will preserve both liberty and security.

No doubt, my friend, you are wondering what exactly are the people to do when they take responsibility for their security.  In truth, I would say that the full answer to that question remains to be discovered.   Vigilance will be important, as will be working with the police, an effort that to their credit many police forces are already encouraging.  This vigilance and cooperation is already occurring to some degree, for example, on the internet. 

You will also be worried that in encouraging vigilance, the approach I am offering will encourage vigilantism, or citizens taking the law into their own hands, often for unjust ends.  To this I must respond that vigilantism does not produce only injustice and the judicial system only justice.  But the American judicial system is both competent and just, and the police powers of government will remain significant.  Together they will limit the dangers of vigilantism.  And those limited dangers are worth the risk to give liberty its greatest scope.   

So, I hope you will agree that the people have a growing role to play in preserving their security. That is after all the simplest yet most profound lesson of 9-11.  The only attackers who were stopped that day were stopped by citizens who took their security and the security of their fellow-citizens into their own hands. 

Ohio Farmer

Taxation and a Republican Constitution

To My Fellow Citizens:

The Supreme Court recently held the Patient Protection and Affordable Care Act (Obamacare) to be a valid exercise of Congress's constitutional authority. Surprisingly, the Court did not find the Act constitutional under the Commerce Clause as the law's proponents had argued, but under the taxing power.  Perhaps no Supreme Court ruling in our lifetimes will be as heavily scrutinized as this one, so serious citizens will want to think about it and come to their own conclusions. 

As I noted in an earlier letter, progressives for the past century have justified expanding federal regulatory power over the economy by insisting on a broad reading of the Commerce Clause. It was a breathtakingly aggressive claim that underlay Obamacare, namely, that Congress may "regulate" commerce by mandating that individuals purchase health insurance or else face a financial penalty.  Chief Justice Roberts rejected this claim. But he then upheld Obamacare's constitutionality, nonetheless, under the taxing power.

Outraged conservatives took little solace in his rejection of the Commerce-Clause justification of the law. What difference does it make, some wondered, whether the federal government tramples our liberties under the Commerce Clause or the taxing power?  And where exactly in the Constitution does the Chief Justice find authorization for such use of the taxing power? Still, the distinction between regulation and taxation is not a case of mere semantics, and maybe this is a distinction that could make a difference.

Taxation occupies a unique place in American history and civic consciousness.  While few citizens know the origins of the Commerce Clause, nearly everyone understands that taxation somehow ignited the American Revolution.  We've all heard the phrase "no taxation without representation."  Schoolchildren learn of oppressive taxes on stamps and tea—oppressive not because British officials imposed a heavy financial burden but because they raised taxes without colonial consent.  Indeed, the colonists felt driven to resistance primarily because Parliament acknowledged no limits to its authority. 

Episodes such as the 1794 Whiskey Rebellion show that Americans' resentments over taxation persisted after the Revolution.  Nowadays elected officials often take a pledge not to raise taxes, a pledge they ignore at their peril.  In short, taxes tend to command Americans' attention and arouse their anger in ways that commercial regulations do not.  Is it mere wishful thinking to suppose that it will be more difficult for proponents of unlimited government to expand federal authority under the taxing power (than under the Commerce Clause) without alarming the sovereign people?  Chief Justice Roberts's opinion seems in some respects to throw the entire question back to the political arena.  At least to this extent, is his decision a welcome development for those Americans who don't want the Supreme Court to serve as the final arbiter of all constitutional debates?

Thomas Jefferson thought that if the Supreme Court came to be regarded as the sole interpreter of the nation's fundamental law, it would threaten the very existence of constitutional self-government.  In an 1819 letter to Judge Spencer Roane, Jefferson argued that "The constitution, on this hypothesis," would be "a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."  Jefferson preferred genuine separation of powers in which "each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action."  He believed, as did most of his contemporaries, that presidents and members of Congress shared in the responsibility of interpreting the Constitution and thus maintaining the balance essential to free government. 

When Jefferson and Alexander Hamilton quarreled over the constitutionality of a national bank, or when Federalists and Republicans in Congress quarreled over the constitutionality of Jay's Treaty, they did not submit the question to the Supreme Court for a final verdict.  The Constitution's framers never meant for the Supreme Court to become the final and sole arbiter of constitutional meaning. They expected Americans to elect legislators who think seriously about constitutional questions, and this could happen only if the people took it upon themselves to think seriously about such questions, assuming their rightful role as guardians of their republican experiment.          

Of course, Obamacare supporters, who tend to want to subject politics to bureaucracy, now wish the matter closed.  But the matter is not closed. It is very much in the hands of the American people, who have a historic opportunity to assert the republican spirit that has served them so well for more than two centuries.  The health-care debate has reminded us anew of our obligation to think about the powers we wish our government to wield.  In that sense, at least, let us hope that it will prove to be good for our political health.

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

The Distributive Constitution and the Election of 2012

To My Fellow Citizens:

In recent letters (here and here), I reflected on the views of some of our learned fellow citizens on the left.  According to one of them, a professor at a public university, democracy requires that citizens enjoy material security.  Without material security, no one has the independence to be a citizen.  Without such security, a citizen lacks the self-respect to stand up for his rights.  A market economy does not provide material security.  It is too unpredictable in its support and leaves citizens at the mercy of a corporate oligarchy.  Since material security is necessary for democracy to function, and since the market cannot provide it, government must do so.  To provide this security, to which every citizen has a right, the government should redistribute wealth.

In response, I argued that what the leftist professor approves in American life would have been impossible, if his argument were correct.  If less well off citizens could not function effectively in a democracy and the corporate oligarchy was all powerful, how did laws favorable to working men get passed and candidates favoring their interests get elected?  That such laws have passed and such candidates have succeeded is a sufficient refutation of the professor's views.  Material security is not necessary for democracy, because those who passed the laws and elected the candidates did not have this security.  But consider this further evidence of how wrong the professor's critique of our democracy is.  Although the left rails that unequal wealth corrupts democracy by giving some more power than others, no one who has studied the connection between money and elections has been able to show that money can buy an election.  Favored candidates attract more money, but more money does not buy favor. 

The professor's claims about what ails our democracy are all wrong.  His remedy, redistribution of wealth, is therefore unnecessary.  If carried out, it would be paradoxical and dreadful in its consequences.  A moment's reflection will assure us that no government, no power on earth, can provide the material security he insists must be considered a right.  Any government with the power and ambition to try would become tyrannical.  The effort to insure democracy through the power of government would paradoxically extinguish freedom.

Arguments like those the left makes about redistribution and democracy do not occur only in theoretical discussions.   They apply directly to political issues.  For example, one of the professor's equally learned colleagues, a distinguished academic, a former President of the American Political Science Association, has written recently that redistribution is central to Affordable Care, the health plan passed by the Obama administration.  She criticizes her fellow leftists for their tepid support of the President.  More needs to be done, she agrees, but then admonishes them that "Affordable Care . . . is a redistributive and regulatory breakthrough" that deserves their support. 

More is at stake, however, in the Affordable Care act, she argues, than just health care.   "Affordable Care, on top of Social Security, Medicare, and Medicaid, could strengthen the bond between middle class Americans and a national government that supports security for all."  The ultimate purpose of these distributive programs, then, is to bind Americans to the national government, to make them dependent on that government.           

A virtue of academics is that they will say clearly what politicians will obscure.  And so our learned friends on the left have posed the issue before us clearly.  For about 100 years, we have sought ways to manage the changes wrought by industrialization.  Those on the left have argued that the concentration of power in corporations brought about by industrialization requires a second revolution, a movement away from the principles of the first American Revolution, a movement away from individuals relying on themselves, their families, friends, and communities, to individuals depending on the government.  Politicians on the left have tended to shy away from talk of revolution, fearing perhaps to associate themselves with such a radical change.  Instead, they and their supporters have focused on specific changes, on Social Security, Medicare, Medicaid, and Affordable Care, for example, not the principle behind such programs, which academic leftists have candidly articulated. 

The piecemeal political approach to revolution worked for a long time.  The real costs were in the future and did not have to be faced.  But now the bills for a system of government dependence are mounting and coming due.  More important, as the pieces of the revolution come together, its character is harder to hide.  It is increasingly evident that it aims to transfer power from the people to the government, so the government can transfer wealth from those it supposes have too much to those it supposes have too little.   The revolution is necessary, the left tells us, to save our independence.  But we see ever more clearly that it aims to makes us dependent on the government.  We see ever more clearly that in the name of saving democracy it will destroy democracy.

As what is at stake becomes clear, it affects our politics.  We currently suffer from political paralysis and bitter political infighting not because of our system or the influence of the media or for any of the other reasons typically offered.  We suffer from paralysis because compromising will no longer work.  Lurking behind the compromises was a fundamental disagreement.  As long as we could afford to, we avoided facing that disagreement.  But as our finances grow threadbare and the threat to free government becomes more evident, the disagreement becomes more obvious, a choice less avoidable.  The learned left is clear again about this too.  "The stakes in 2012 are as high as in any pivotal election in U.S. history (except 1860)" one of them has recently written.

The importance of the election of 2012 is one thing on which we and the left agree.  But we hope its outcome will be a turn away from the distributive constitution toward free government.

Ohio Farmer

A Statesman in Congress

To the Members of the 112^th Congress:

This Friday marks the 160th anniversary of the death of Henry Clay (June 29, 1852). With only a few years excepted, Clay served in the House of Representatives and the Senate from 1803 until his death almost 50 years later. When he died, he was the most famous American of his day and received many, many eulogies. One of them came from a little-known, former one-term Congressman from Illinois named Abraham Lincoln, who eulogized Clay as "my beau ideal of a statesman."

In calling Clay a "statesman," Lincoln chose his words carefully, and he used a term we don't hear much anymore. But it's one we must recapture if we are going to understand the kind of people we need in public office to revitalize the American experiment in constitutional self-government.

To recapture the idea of the statesman, we must, among other things, recall how to distinguish it from the idea of the "leader" bequeathed to us by the Progressive Movement over a century ago. "Leader" is an old word with a respectable heritage—Thomas Jefferson referred to George Washington, for example, as "our great leader."  But the Progressives, beginning with Woodrow Wilson, poured new wine into this old bottle, and our public discourse has been drinking this Progressive vintage ever since.

Progressives who talk about "leadership" also talk about "vision."  They mean that a leader somehow must have a vision, a vision of the future into which he will lead his followers. A progressive leader moves people away from where they are toward some new goal divined by the leader—actually, toward goals that must constantly be renewed as we make endless "progress" into an always receding future. To lead the country into the progressive future requires leading it away from the supposedly outmoded goals, principles, and institutions of the American Founding.

The statesmanship of Clay (and Lincoln after him) was guided by the goals set out in the Declaration of Independence and the Constitution: to protect the "unalienable" rights of every individual to "life, liberty, and pursuit of happiness"; and "to establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."  A statesmanlike pursuit of these goals requires "vision," too, but vision of a sort very different from the progressive variety.

Statesmanlike vision is part of the virtue that Aristotle called prudence. Prudence does not mean "caution"; it means knowing what the right goals are and seeing how to move toward them in the particular circumstances that you face. The prudent statesman has great political vision, like a great quarterback who can see the whole field and make adjustments at the line of scrimmage. Having that kind of larger outlook can be hard in Congress, where there are so many particular interests and passions always trying to narrow your view. But, as Lincoln said, Henry Clay had that broader statesmanlike perspective: "Whatever Mr. Clay did, he did for the whole country. In the construction of his measures he ever carefully surveyed every part of the field, and duly weighed every conflicting interest."

The right kind of compromise is often part of the statesman's prudence. On at least three occasions (the last in 1850), Henry Clay cobbled together a deal in Congress that held a shaky country together. For this he earned the title "The Great Compromiser"—not because he gave in on his fundamental principles but because his compromises preserved the Union and kept the spark of liberty alive. His deals had their critics, and some of their criticism is not off the mark. But Clay was willing to make imperfect compromises because he knew that in politics consequences matter. It's not enough simply to have good intentions: the right action is also the one that has the best possible results. The statesman's compromise is one that, without violating the larger principles at stake, gets as much good as possible out of imperfect circumstances.

To achieve what Clay achieved in his long career required qualities that set him apart from his sometimes more seemingly successful political competitors. As Lincoln said:

Even those of both political parties who have been preferred to him for the highest office, have run far briefer courses than he, and left him, still shining high in the heavens of the political world. Jackson, Van Buren, Harrison, Polk, and Taylor, all rose after, and set long before him. The spell—the long enduring spell—with which the souls of men were bound to him, is a miracle. Who can compass it? It is probably true he owed his pre-eminence to no one quality, but to a fortunate combination of several. He was surpassingly eloquent; but many eloquent men fail utterly; and they are not, as a class, generally successful. His judgment was excellent; but many men of good judgment, live and die unnoticed. His will was indomitable; but this quality often secures to its owner nothing better than a character for useless obstinacy. These then were Mr. Clay's leading qualities. No one of them is very uncommon; but all taken together are rarely combined in a single individual; and this is probably the reason why such men as Henry Clay are so rare in the world.

Statesmen like Henry Clay are rare, but sometimes our Republic needs them. They don't try to lead us to a new political ideal; they help us see how to return to the principles of our Founding and Constitution. They know that the people are supposed to lead themselves by adhering to the Constitution they set up, not by following a leader as he envisions the next goal revealed to him by the always progressing "living constitution." In helping to keep our Founding principles alive in the minds of the American people, they render a noble and glorious service both to our country and to all mankind.

They come to "belong to the ages," as someone said less than a generation later of the little-known Congressman who once eulogized Henry Clay.

Ohio Farmer

 

Material and Spiritual Security

To My Fellow Citizens:

In an earlier letter, I described and criticized the view that our Constitution gives the government the power and duty to provide us with material security because such security is necessary for democracy.   In fact, as I argued, economic insecurity does not deprive any one of their rights or prevent them from exercising them.

In addition to being wrong, the argument that to ensure democracy the government must ensure our material security is paradoxical.  To even attempt to provide material security, the government would have to have such power over our lives and livelihoods that the government would have all the freedom and citizens none.  This is hardly what we call democracy and so, paradoxically, such an effort to preserve democracy destroys it.

If we consider the claim that government must provide material security in light of the founding of our country, however, we arrive at another and deeper paradox.  The great enemy of democracy at the time of the Founding was not the effort to provide material security but the effort to provide spiritual security.  For more than a thousand years, governments had claimed a right to rule based on divine sanction.  They claimed to be God's rulers on earth, and in the name of carrying out God's will they dictated what their subjects could think and do, what they could wear or with whom they could associate.  They did this, they claimed, for the good of their subjects, to ensure their salvation, their spiritual security.  They thought not at all about their subjects' material security.

The Founders noted, as others had before them, that although the rulers did not care about their subjects' material security they did seem concerned about their own.  They ensured it by wringing it from the labor of their subjects.  Talk of providing spiritual security was a pretense for injustice.  Whatever may have been the good intentions behind the effort to provide spiritual security, such is human nature that inevitably the vast powers necessary for such a purpose were put to tyrannical ends.  As I remarked in a previous letter, "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 yet act merely in their own self-interest."

Faced with spiritual tyranny, the Founders established a government that promised spiritual liberty.  Of material security, they thought not at all and the government they established promised nothing.  Human life had been too poor for anyone to have thought of material security as a goal.  The Founders hoped for prosperity, certainly.  They believed that the creative power and energy liberated by their new government would increase it.  But they understood that human life was so needful and precarious that providing material security was something no power on earth could do.

But the new regime of liberty proved good almost beyond imagining at allowing men to produce wealth.  Within little more than 100 years, it became possible for some to think distributing wealth more important than producing it; conquering want a possibility; sharing in the conquest, each citizen's right; and ensuring it, a government's duty, for which it should be given the necessary power.  Paradoxically, such thinking was possible only because of the freedom and prosperity that such a new conception of government would destroy.

It may seem an exaggeration to say that giving government the power to provide material security will extinguish freedom.  But think of the endless needs of human beings and thus the endless demands for security or freedom from those needs.  Think of the already vast power of technology, extending now into the very intricacies of human biology.  Think of the intrusive power of government and how power corrupts.  Think of combining these powers on the assumption that they must satisfy those needs and you can easily imagine the threat to freedom.  Indeed, in a final paradox, the claim that government must provide material security would lead to a government with tyrannical powers exceeding those of the spiritual tyrannies the Founders fought to overcome.

No doubt many of those who speak of government providing material security are well-intentioned.  But we know where the road paved with good intentions leads.   We need to remind the well-intentioned that freedom and insecurity are inseparable.  That we may run, means we may fall.  That a business may start up, means a business may fail.  To remove this insecurity, we would have to remove freedom itself.  We cannot have security, spiritual or material, unless we give up freedom.  But, wrote Jefferson, "almighty God hath created the mind free."  It is that freedom and the prosperity and happiness it makes possible that is the only true compensation for the insecurity that is unavoidably part of human life.

Government cannot give us either material or spiritual security.  No government would be free that attempted it.  To the extent we may possess either kind of security, we must earn it by hard labor.  In truth, all the American Founding promised was the freedom to engage in such unending labor, to the measure of our abilities and the limit of our time.  It is not common, especially in an election year, to speak in such a way about the promise of American life.  But if we remember that to speak otherwise is to flirt, however innocently, with tyranny, we will remember as well the beauty and true greatness of that original promise.

Ohio Farmer

 

Our Constitution is Color-Blind

To My Fellow Citizens:

A prominent theme of these letters is that—to inherit and pass on to the next generation the legacy of freedom bequeathed to us—Americans must understand and take to heart the idea of political freedom that has been at stake in all the great episodes of American history. Today is a fitting time to reflect on one of those episodes.

On June 7, 1892, Homer Plessy boarded a train in New Orleans bound for Covington, Louisiana. When the conductor saw his ticket, he demanded that he move. When Plessy wouldn’t, he was arrested, tried, convicted, and fined $25. His offense? Violating Louisiana's "Separate Car Act" by sitting in a "whites only" railroad car. Plessy and his supporters appealed the case all the way to the U.S. Supreme Court, claiming that Louisiana's "Jim Crow" law violated the 14th Amendment to the Constitution, which prohibits a state from denying "equal protection of the laws" to any person within its jurisdiction.  Congress had sent the 14th Amendment to the states for ratification on June 13, 1866,146 years ago today.

Unfortunately, the Supreme Court didn't agree with Mr. Plessy, and voted by a 7-1 margin that racially segregated facilities were permissible under the Constitution, as long as the facilities were "separate but equal." It was one of the worst decisions the Court ever made. But it did raise a question that Americans – and the Supreme Court – are still asking: What does it mean to be equal under the law?

The meaning of equality had been the central question for Americans ever since our Founders first declared in 1776 the self-evident truth that "all men are created equal." In previous letters, I have noted that the Founders understood equality to mean that everyone has the same natural rights – that is, everyone has the same God-given rights to life, liberty, and property. We should all be free from violence to our life and health, be free to run our own lives, and be free to enjoy the fruits of our labor. Obviously, slavery violated all of those principles and had to be abolished if America was fully to live up to them. In 1865, as a result of the Union victory in the Civil War, it was abolished by the 13th Amendment. But the submission of the 14th Amendment to the states in 1866 raised a different question: once slavery is abolished, how does our basic natural equality translate into law and the Constitution? What does it mean to have "equal protection of the laws," as the 14th Amendment says?

It's not just a historical question. The meaning of constitutional equality is being debated again by the current Supreme Court, which is going to decide soon whether state universities can consider race in the application process, especially by giving a "plus" to certain people because of their race. Does that violate "equal protection of the laws"? It does, and to understand why, we need look no further than the dissent of the one Justice who voted in favor of Mr. Plessy so many years ago.

In his great dissent, Justice John Marshall Harlan argued that "separate but equal" could never be justified under the Constitution. For one thing, "the statute… interferes with the personal freedom of citizens…. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each."

In response, however, Louisiana claimed that states can interfere with personal freedom if necessary for public safety. For example, in order to keep the roads safe, speed limits restrict how fast we can drive. Or more to the point, the law prevents some people from driving (for example, 14 year olds) whether or not they are actually qualified. No one says that those laws are unreasonable, unequal, or unconstitutional. Louisiana claimed the same for its segregation law: it was designed to maintain public order by keeping the races separate. Justice Harlan pointed out, however, that "every one knows that … [t]he thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary." 

But Harlan knew that as a matter of constitutional principle, it was not enough to lay bare Louisiana's racist motives. He had to show that even if the legislature had good intentions, it simply did not have the power to make a law that segregates by race in this way. "In respect of civil rights, common to all citizens," Harlan wrote, "the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights." Why not? Because, he said,

in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

We must understand Harlan’s words. "Our Constitution is color-blind" because, speaking generally, the law – government – does not even have the power to see a person's race; for the purposes of government (the main purpose being to secure the rights of the governed), race is irrelevant. As the Declaration of Independence says, "Governments are instituted among men" to secure individuals' natural rights, which are part of every person as a human being and have nothing to do with race. In order to protect people's rights, therefore, government does not need the power to "know" anyone's race, as Harlan says. So it does not have such power.

So when the 14th Amendment declares that every person should have "equal protection of the laws," it means that the law must treat everyone the same without regard to race. The only exceptions would be the commonsensical ones, when it is necessary for government to consider race in order to protect citizens' natural rights, as, for example, when police departments must hire an undercover officer of a specific race to infiltrate an ethnic gang. But these are practical exceptions that do not apply to Homer Plessy's case in 1896 or to college admissions today.

It's been 146 years since Congress sent the 14th Amendment to the states for ratification. It was designed to complete the work of the Founders and translate the principle of equality of natural rights into the fact of "equal protection of the laws." Since 1866, that full equality has become more and more part of the character of the American people themselves. Now it is up to the Supreme Court – more importantly, up to us – to live up to our color-blind Constitution, rid the law of race, and finally, fully vindicate the courage of Homer Plessy and the wisdom of John Marshall Harlan.

Ohio Farmer

 

The Distributive Constitution

To My Fellow Citizens:

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

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

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

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

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

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

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

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

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

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

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

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

Ohio Farmer

Equality and Race Continued

To My Fellow Citizens:

In a recent letter we discussed the challenge of making republican government succeed in a racially plural republic, a challenge most Americans before 1860 considered insurmountable. One of the long arcs of American history since then is the growing recognition that while sustaining such a nation was daunting, all the alternatives to it were impossible. Thus, America would have to find a way to make it work as well as it could be made to work.

The beginning of this arc can be seen in Abraham Lincoln’s experience. He had become a nationally prominent politician in the 1850s, by insisting that America’s founders had meant to place the institution of slavery in the “course of ultimate extinction,” a course from which the nation must not depart. “Ultimate,” however, is an elastic term. In his fourth debate with Stephen Douglas, Lincoln conceded, “I do not suppose that in the most peaceful way ultimate extinction would occur in less than a hundred years at least….” 

This was a reflection, among other things, of Lincoln’s estimation of American public opinion. In a country founded on the consent of the governed, it is impossible for a democratic politician peacefully to do more than he can persuade his fellow citizens to join him in doing.  That Lincoln’s election was considered an intolerable provocation by the slave-holding states that seceded from the Union demonstrated just how far public opinion had to move in America before slavery could be extinguished “in the most peaceful way.”  As Georgia’s Alexander Stephens, who would become vice president of the Confederate States of America, said in 1861, “Our new government is founded upon … the great truth that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition.”

When war was forced upon him by the seceding slave-holding states, Lincoln took the occasion of the war to make the ultimate extinction of slavery much more immediate. As a measure of military necessity he issued the Emancipation Proclamation on January 1, 1863, less than two years into his first term of office, declaring that all slaves in states rebelling against the federal government were “forever free.” This was one step toward the ultimate extinction of slavery; the 13th Amendment to the Constitution, prohibiting slavery throughout the nation, was the next.

Lincoln’s assassination, less than two months after the start of his second term, means that we can only speculate about the further steps he would have taken towards establishing a democracy that included freed slaves. In his last public speech, given four days before he was assassinated, Lincoln spoke favorably about readmitting Louisiana to the Union, based on its newly adopted state constitution, “giving the benefit of public schools equally to black and white, and empowering the Legislature to confer the elective franchise upon the colored man.” For Congress to reject Louisiana’s application, Lincoln argued, would be to say to that state’s blacks, “This cup of liberty … we will dash from you, and leave you to the chances of gathering the spilled and scattered contents in some vague and undefined when, where, and how.”

The previous month, at his second inaugural, Lincoln had urged Americans to “bind up the nation’s wounds” and “to do all which may achieve and cherish a just and a lasting peace, among ourselves.” It became apparent in the years after Lincoln’s death, however, that there was a profound antagonism between the goals of racial unity and sectional unity. Southern whites, defeated and humiliated, made clear that they were implacably opposed to federal policies that would guarantee blacks’ civil and voting rights. For the first years of Reconstruction the policy of the Republicans who controlled Congress was to confront and overcome this opposition. Federal troops remained stationed in the defeated states, protecting blacks’ rights and allowing legislatures with black representatives, sometimes comprising majorities, to convene.

Southern resistance, manifested in the rise of paramilitary groups like the Ku Klux Klan, forced northerners to decide whether they were prepared to commit troops and resources, to the extent and for the duration required, until southerners finally accepted former slaves as equal citizens. In the aftermath of the election of 1876, a decade after the end of the Civil War, northerners threw in the towel: Reconstruction ended with the abolition of slavery, but also with the federal government acquiescing in white southerners deciding how and whether southern blacks’ rights would be recognized. The imperative of sectional reconciliation had triumphed over the imperative of enforcing the Constitution, explicitly color-blind after the ratification of the 14th and 15th amendments. As Lincoln had feared, blacks’ hopes for realizing liberty were postponed to some vague and undefined when, where, and how. It took most of the ensuing century before the Civil Rights movement impelled the nation to make its commitment to color-blind citizenship specific and immediate. A future letter will examine the democratic principle of equality in the wake of that historical watershed. 

Ohio Farmer

To Provide for the Common Defense

To My Fellow Citizens:

In a previous letter I commented on our self-regarding character as a people, arguing that this character was the only secure foundation for a constitutional government, a government of limited powers.  As we respect ourselves, we will take care of ourselves and those around us.  In doing that, we will have less need of the heavy hand of government.  We will more fully enjoy the blessings of liberty and the happiness that is their fruit.

The self-regard of the people is essential not just to their happiness, however.  It is also essential to their safety.  Consider our current situation.

Long before 9/11, we knew that in a free society such as ours, individuals and small groups who mean to do us harm could operate among us, protected by the same liberties that protect us.  As this danger has increased, the government has responded, as it has always, by increasing its power to gather information on citizens and by restricting their liberties.  How far can this go?  As technology puts more and more power into the hands of smaller groups and even individuals (think of the increasing power individuals now wield to manipulate disease-causing viruses), how much more intrusive will government have to be in order to protect us?  Is there an alternative?

If the threat we face comes from another state and its military forces, then our government and our military forces are the best response.  But if the threat is living among the people, then the people are themselves the best means to meet it.  Even if the government pursued security at the cost of all liberty, its agents would not be as well positioned to identify dangers as the people in their various neighborhoods, communities, and workplaces.  The people are already doing this, and should be encouraged to increase their efforts.  The more the people are actively involved in their own defense, the more likely it is that they will be safe, and the less necessary it will be for them to sacrifice their liberty.  The government cannot make the people defend themselves. Still, the self-regarding people I described in my earlier letter, who take care of themselves and others in crises, are the sort of people, we must hope, who will defend themselves, if not prohibited from doing so.

In speaking of a people active in their own defense, we touch on the hallowed American tradition of the militia, of citizen soldiers ready and willing to defend themselves.  But as always, we must not flatter ourselves.  Citizen vigilance has often led to abuses, to the destruction of the safety and freedom of innocent citizens.  Government vigilance has also led to abuses, however, and only citizen vigilance, constrained by the unbiased application of our laws, will increase the capacities and freedom of Americans.    

Increasing our safety by restricting the power of government is not what we have done in the past.  But as our circumstances are new, so should our thinking be new.  Consider another example.  Most of the infrastructure in our country—phone and electricity lines, gas pipelines, computer networks, railroads—is privately owned.  All of this infrastructure is now, as it has always been, a possible target of attack.  But because all this infrastructure was not centrally planned by the government, because it grew in response to individual initiative, it is redundant and complex.  No one kind of attack can imperil it.  Various utility companies, for example, use different kinds of software to run their networks.  Some have modified what they have bought for their own special circumstances.  No one computer virus or hacking exploit can compromise all these systems.  If the government, in the name of increasing security or efficiency, were to impose one kind of system on these utilities, this would in fact only decrease our security.  The uniformity of central control would make the job of attackers much simpler.

The preamble to the Constitution speaks of establishing the government to provide for the common defense.  For most of our history, increasing the power of government was essential to that defense.  Now, limiting that power is just as important.

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

 

We the People

To My Fellow Citizens:

Our Constitution begins with the phrase "We the people."  The people precede the Constitution.  They, through their representatives, wrote it and then voted to adopt it.  Following generations amended it.  Since we can amend the Constitution, ultimately we cannot depend on it unless we ourselves are dependable.  The people are the foundation upon which the legal edifice of the Constitution rests.  No matter what the Constitution says, no matter how clever its provisions, it will never be sound and constitutional government secure, if the people are not sound.

We often hear another account of the relationship between the people and the Constitution.  This account presents the Constitution as a necessary constraint on the people.  The people are a collection of self-interested individuals, perhaps even self-indulgent.  If not for the rule of law, the authority and the procedures of the Constitution, who knows what they would do? This was a view held by some at the time of our Founding.  It is a view still held today.

This must disturb those who love liberty.  For if the people are weak, and divided by self-interest, then the government must be strong.  For what else could control such people and direct them to useful ends?  It is also a paradoxical view of the Constitution, since some of those who complain of the self-interestedness of the people also praise limited government.  But, again, if the people are weak and divided, does this not encourage their government to be strong and to take over responsibilities for which the people are supposedly unfit?

How we, the people, view ourselves, therefore, is critical to the kind of government we have.  How should we view ourselves?  One test we might apply is a now ancient one, offered by those who sought to revive republican self-government after centuries of rule by emperors and kings.  The test was simply this.  What are the people like when a crisis comes?  What do they discover in themselves?

We might think this a test we will fail.  Have we not heard stories of the horrors in New Orleans following Hurricane Katrina, for example?  Once government disappeared—the narrative goes—savagery returned.  The first reports did convey that sense, but the first reports were wrong or at least exaggerated.  Further research has revealed that violence was rare; people helped one another.  The people of New Orleans and surrounding areas, in the absence of government, organized on their own an evacuation that saved thousands from the flood waters. 

Something similar but on a larger scale happened in New York City on September 11.  When the twin towers fell, thousands were trapped in lower Manhattan.  They moved to the tip of the island.   There they stood, growing numbers pressed against the water's edge.  Some of those who worked the waters around Manhattan started to take people aboard.  Other boats joined them, starting an evacuation that lasted almost nine hours and brought more than 300,000, perhaps nearly 500,000, to safety.  The evacuation took place without panic.  No one was injured or killed during it.

This evacuation was the spontaneous response of people to a crisis.  As such, it reveals something about the people.  One observer saw businessmen, no doubt from the financial district in lower Manhattan, those we might think of as the very paragons of conniving self-interest, carrying the old and disabled to boats, setting them down and then returning into the dust and crowds looking for others they could help.  Such actions occur not just in great crises like 9/11 or Hurricane Katrina. They occur when a tornado rips apart a town and people from surrounding communities come to help or when an ice storm takes out the electricity and neighbors share firewood or check on an elderly couple.

It is important, of course, not to flatter ourselves.  A small number of the people do take advantage of a crisis for their own ends.  The people did get some assistance from the government on 9/11.  Seeing the evacuation starting, the Coast Guard issued a call for all available boats and announced that the normal safety rules about how many passengers a boat might carry would not be enforced.  Above all, we should not take our bearings solely by what people do in a time of crisis.  We live mostly in more normal times, when complacency has a more marked effect and where the law as constraint and guide is helpful. 

Still, we should not accept the idea that the people are above all self-interested, especially if it suggests that the government, therefore, needs a heavy hand.  Or, perhaps, we should take from the example of how the people act in a crisis a better understanding of self-interest.  What we see in a crisis, we might say, is people who think enough of themselves, and what they can do, to think of others as well.  We see that self-interest in this sense derives from self-respect.  If you think well of yourself, you will take an interest in yourself.  Taking an interest in yourself, you will take an interest in and help those who are important to you, your family, friends, neighbors, and fellow-citizens.  The circle of regard spreads, in due proportion, outward from the self-regarding individual.  That is the true foundation upon which the Constitution and our hopes for limited government rest.

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

 

Constitutional Letter and Constitutional Spirit

To the Members of the 112^th Congress:

From my first letter, I have spoken of the need for attention to the Constitution if we are to continue to enjoy the blessings of limited government.  It was gratifying, then, to hear the Attorney General say in a recent speech that "our actions must always be grounded on the bedrock of the Constitution." 

The particular action the Attorney General was referring to was the execution of an American citizen without trial, solely on the order of the President of the United States.  On the face of it, nothing could seem less constitutional or legal.  The Constitution is the framework, the set of rules, that prescribes what the government may legitimately do in a regime dedicated to securing the rights of life, liberty, and the pursuit of happiness for its citizens.  These rights exist before and outside the Constitution; the Constitution is meant to serve and preserve them.  We never cede them to the government and we cannot be deprived of them without what the Constitution calls due process, which includes trial by jury. 

How then could the Attorney General claim that it was constitutional for the President to authorize the execution of an American without trial?  I have neglected to mention that the American executed was a terrorist, an American citizen "intent on murdering Americans" and taking a leading role in plotting such murders, as the Attorney General put it.  Moreover, the citizen carried on this plotting in places where it was not feasible to capture him for trial.  In such cases, when the threat to Americans is imminent, the courts have ruled that the normal procedures of due process do not apply.  In this case, "after a thorough and careful review," the President authorized the execution.  According to the Attorney General, citing Supreme Court decisions, this review met the constitutional requirement for due process, and such review will pass constitutional muster in other similar cases involving American citizens.

But how do we know that the American was a terrorist intent on murdering Americans?  The executive decided he was.  The executive branch acted as judge, jury, and executioner.  It thus exercised the powers of the judicial, as well as the executive branch.  A fundamental tenet of our Constitution is that limiting the power of the government to protect the rights of citizens requires separating the powers of government.  In grounding executive action on Court rulings, the Attorney General ignored the spirit of the Constitution.

What evidence did the executive rely on to order the execution of an American citizen?  It relied on intelligence, which includes what a court would call hearsay and would not allow in a trial.  We also know that intelligence may be wrong.  Was it wrong in the case the Attorney General refers to?  We do not know.  Nor will we know in future cases because intelligence is secret.  Not only is the Attorney General advocating a process that nullifies the separation of powers, he is advocating a secret process that defies our tradition of open trials.

The Attorney General assures us that we should not be concerned.  The executive branch orders executions only under "robust oversight."  Congress provides the oversight, "in keeping with the law and our constitutional system of checks and balances."  The Attorney General's words at this point in his speech are artful.  He says that the Executive informs the appropriate members of Congress about the legal framework for its execution of citizens.   Some members of Congress are told, apparently, only of the justification of targeting in general, not of the evidence that justifies targeting in any particular case.  This would be similar to a judge explaining to a jury what the law against murder means without allowing the jury to hear any of the evidence in the case before them.  Would such a proceeding ever be thought compatible with the rights of free men?

In addition, it is the peculiar function of the judicial branch to check and balance the power of the executive branch when the rights of citizens are at stake.  Congress, especially the members of the House of Representatives elected every two years, are too close to the passions of the people, too exposed to immediate political concerns, to protect the rights of someone accused of being a public enemy.  Again, the Attorney General ignored this fundamental tenet of our constitutional system.

But the Attorney General counsels us further about the Constitution.  He admonishes us that, however disturbing the process by which the President comes to order the execution of an American citizen, however contrary it seems to our most fundamental understanding of what a citizen is due—it is necessary.   We are at war and in war "real-time decisions" must be made, as opportunity dictates.  In these circumstances, the President cannot consult; he must act.

This is true but not relevant in this case.  Again, how do we know that the American citizen to be targeted is in fact a terrorist?  The Attorney General assures us a thorough review of available information takes place before an American is executed.  This takes time.  So does collecting the information on which the review depends.  The actual execution may occur because of an opportunity that must be seized immediately, but the process that leads to seizing that opportunity unfolds deliberately over time.  In this process, is there no opportunity for the judicial branch to play its constitutional role?

Playing such a role does not require a full trial.  In 1978, Congress passed a law that established judicial review of the executive branch's surveillance of individuals, including American citizens, in certain national security cases.  This judicial review is carried out without a trial, and has been done with secrecy and dispatch.  If judicial review is necessary and possible before an American falls under surveillance, should it not also be necessary before he falls under the gun?

It is good that the Attorney General should acknowledge the Constitution.  But it would be better if he and the executive branch were guided by its spirit.

Ohio Farmer

Against All Reason and Justice

To the Members of the 112^th Congress:

I concluded a recent letter by reminding my fellow citizens that "[i]f we have any hope of restoring the Founders' vision of limited, constitutional government, we must regain their understanding of the right to property."

The House of Representatives took an important step in that direction by voting to pass the Private Property Rights Protection Act, which denies all federal economic development funds for a period of two years to any state or locality that commits eminent domain abuse. The bill also gives property owners a legal recourse to fight economic development takings.

The Act was made necessary by the Supreme Court's terrible decision in the 2005 case, Kelo v. New London. A bare majority of the Court held that it did not violate the Constitution's Fifth Amendment for the city of New London, Connecticut, to take Suzette Kelo's cherished, well-maintained home in a decent neighborhood, in order to give it (and other property nearby) to Pfizer Corporation. The Court said that the transfer could help New London's economic redevelopment efforts, so it benefited the public and thereby served a "public purpose." This is despite the fact that the Fifth Amendment explicitly says: "nor shall private property be taken for public use, without just compensation" (my italics).

The Court tried to get around this by saying that "public purpose" is the same as "public use." But it is not. As the dissent pointed out, our Founders understood "public use" to mean that "the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever.... The term 'public use'… means that either the government or its citizens as a whole must actually 'employ' the taken property."

The Founders held this view because of their understanding of the right to property. As I said in my earlier letter, they held that every person has the right to acquire property and to possess it without being interfered with by other people or government. In the Founders' view, one of government's most basic purposes is to protect the right of people to possess their property unmolested.

Every government must have the power to take private property if necessary in order to construct government facilities like jails or public facilities like roads. If it did not have such power, it would not be able to do its job of protecting our natural rights. When we agree to be part of a political society, we implicitly give government (whether local, county, state, or national) this power of eminent domain.

But this power cannot be used to violate the very rights that it is created to protect. The right to possess our property means that we control it and get to keep what is ours. We can admit or exclude other people from it as we see fit ("No Trespassing!"). Under normal circumstances, even the police cannot enter a person's property without a search warrant. Government cannot tax property without our consent, and it cannot even take it for a public use unless it gives us "just compensation."

As the Kelo dissenters pointed out, all of these limitations reflect the Founders' deep understanding that our property is a part of us, and if government can take it from one person and give it to someone else, it denies that we are free people. The dissent quoted Justice Samuel Chase, who wrote in 1798 that "[a]n act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.... A few instances will suffice to explain what I mean.... [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it" (Calder v. Bull).

Justice Chase had it right. And now, as America's constitutional conversation continues, so does the House of Representatives. Some members of Congress supported the bill because public purpose takings tend to appropriate property from poor and minority owners to give it to powerful, politically-connected corporations. That's true, and it's a good reason to oppose them. But it is not the best reason. Any taking from one person (rich or poor) to give to another (rich or poor) undermines the basis of all liberty because it denies that people are by nature free to "dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature," as John Locke put it.

The Supreme Court drifted from the Founders' understanding of a legitimate "taking" because government has drifted from the Founders' understanding of what government should do. Public use has expanded into "public purpose" because government has expanded into so many more purposes than protecting rights: for example, "re-developing" an area of New London that wasn't even blighted.

The American people have taken a lively part in this constitutional conversation. Over 90% opposed the Kelo decision; indeed, they were outraged by it. Many states responded by restricting "public purpose" takings, and some state supreme courts, like Ohio's, struck down this misuse of eminent domain on the ground that it violates their own constitutions. Across the board, Americans saw clearly that Kelo was a decision "against all reason and justice."  Employing many of the political instruments available to them, the people and their representatives have been doing what they can to defend their fundamental right to property against the unreason and injustice that gained a bare toehold in our politics in the Kelo decision.

Now it is the Senate's turn to join in this important American conversation, when it deliberates on the Private Property Rights Protection Act.  We will see if they take the opportunity to recover an important part of our Founders' reason and justice by restoring Americans' right to property.

Ohio Farmer

To Secure These Rights

To My Fellow Citizens:

Rights are at the heart of American politics. Anyone wanting to understand our experiment in self government must grasp what we meant when we began that experiment by proclaiming, as self-evident truths, "that all men … are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," and that it is "to secure these rights" that "Governments are instituted among Men."  In our last letter, we reflected that the phrase "among these" is evidence that the authors of the Declaration of Independence, when listing three rights any legitimate government exists to secure, did not want to rule out the possibility of other rights deserving protection—such as the right to property.

We see the same concern reflected in the Constitution's Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Both our great founding documents, then, the Declaration of Independence and the Constitution, sought to protect against the danger that future governments might construe too narrowly the rights that defined their duties and justified their powers. Both documents explicitly reject the idea that the natural rights they enumerate are necessarily the only unalienable rights that government must protect. What they did not do and could not do is provide an exhaustive list of such rights.

Enter Franklin Roosevelt and the New Deal. FDR's New Deal presented itself as a necessary updating of the American Founding's 18th century principles to make them applicable to urgent 20th century realities.  "This Republic had its beginning," said Roosevelt in his 1944 State of the Union address, "and grew to its present strength, under the protection of certain inalienable political rights...." But,

As our nation has grown in size and stature... – as our industrial economy expanded – these political rights proved inadequate....

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all....

History had made "self-evident" to FDR and his progressive forebears that the self-evident truths of the American Founding were inadequate as a foundation for a just political order in our time. "Social justice," as Roosevelt had written in 1938, "is essentially a conception of this century. It was not visualized by the men who founded the nation." A re-founding was needed, and that is what the New Deal offered. Anyone resisting the new vision and wishing to return to the principles of the original Founding would be a reactionary.

Roosevelt's second Bill of Rights included rights to adequate employment, business opportunities, housing, medical care, education, and protection against old age, sickness, and unemployment. Those who find it hard to imagine a guarantee of economic security that is not included in this list are not thinking like New Dealers. A year before the 1944 State of the Union Address the National Resources Planning Board, an agency created to map out a domestic policy agenda for implementation after victory in World War II, had submitted a report to Congress with its own bill of social welfare rights. It included "The right to education, for work, for citizenship, and for personal growth and happiness," and "The right to rest, recreation, and adventure, the opportunity to enjoy life and take part in advancing civilization."

Replacing the Founders' understanding of unchanging natural rights with an ever-evolving wish-list under the name of rights is central to the modern liberal enterprise and is the key to understanding the boundlessness of that enterprise. The Obama administration recently demonstrated one of the problems with this approach: If any social policy goal may be proclaimed a right, any right may be regarded as just another policy goal. The Department of Health and Human Services navigated this two-way street by announcing that the Affordable Care Act required non-profit employers to offer contraceptive coverage to their employees, even if they have never done so in the past due to religious convictions. The rationale, according to HHS Secretary Kathleen Sebelius, was to strike "the appropriate balance between respecting religious freedom and increasing access to important preventive services." The implication is clear: The government is going to balance two commensurate things, religious freedom and the provision of important preventive services. For the latter to become a right, just like the former, the former needs to be whittled down to fit a domestic agenda, just like the latter.

The biggest problem with the HHS contraception rule is not that HHS made the wrong decision, but that HHS was wrong to make a decision. A properly constituted republican government protects, rather than occupying and managing, the space wherein citizens follow their consciences while securing the employment and insurance arrangements they desire. Such restraint comes naturally to a government that exists to secure a finite number of unchanging natural rights (even if it is imprudent to proclaim an exhaustive list of those rights) but is foreign to one that supposes historical progress vouchsafes an endless list of rights—so that, as a result, nothing is really a right.

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

Free Speech and Free Politics

To the Members of the 112^th Congress:

"Congress shall make no law . . . abridging the freedom of speech."  Two years ago the Supreme Court ruled in Citizens United v. Federal Election Commission that important features of the Bipartisan Campaign Reform Act of 2002 violated this First Amendment ban on laws abridging the freedom of speech. (As you know, this federal law is more commonly known as the McCain-Feingold Act, after the two senators who sponsored it.)

McCain-Feingold prohibited labor unions and corporations, both for-profit and non-profit, from broadcasting "electioneering communications" that mentioned political candidates by name less than 60 days before a general election or 30 days before a primary election. In the course of enforcing the law the Federal Election Commission (FEC) told the non-profit organization Citizens United that its plan to run television commercials for its documentary, "Hillary: The Movie," would constitute an illegal electioneering communication during the 2008 presidential election.

No opponent of campaign finance regulation ever wounded that cause more than did one of its advocates, deputy solicitor general Malcolm Stewart. Defending the suppression of "Hillary: The Movie" before the Supreme Court in March 2009, Stewart said in response to the justices' questions that McCain-Feingold's electioneering communications provision was broad enough to authorize FEC to ban a corporation in the business of publishing books from bringing out a 500-page book if even one sentence discussed a candidate by name. Stewart's answer elicited audible gasps in the courtroom.

It was no surprise, then, when a majority of the Supreme Court struck down McCain-Feingold's restrictions on "independent expenditures" by unions and corporations. "If the First Amendment has any force," the majority opinion stated, "it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

Not only did four justices dissent strongly from this view, but President Obama devoted a weekly radio address to attacking the ruling. The Court had opened "the floodgates for an unlimited amount of special interest money into our democracy," he said, giving "special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way – or to punish those who don't." Other critics were less measured, calling Citizens United a "devastating decision" that shows "we can't expect the judiciary to protect average citizens from the power of big money."

Two years of seething by Citizens United's opponents, however, have not produced a coherent response to it. Politicians and activists have proposed various constitutional amendments. One of the most sweeping stipulates that, rather than just limiting corporations' rights to participate in the political process, corporations shall have no constitutional rights, such as the due process right to sue if the government seizes their property.

One of the ironies of these efforts is that most of the advocacy groups behind them are incorporated, meaning their success would curtail their own ability to affect the political process. The Sierra Club, for example, was fined by FEC in 2006 for distributing pamphlets contrasting candidates' views on environmental issues. Another irony is that the Left's causes and candidates have relied as much as the Right's on political "venture capitalists." In 1967 a handful of millionaires opposed to the war in Vietnam contributed $1.5 million – worth about $10 million today – to bankroll Senator Eugene McCarthy's challenge to Lyndon Johnson for the 1968 Democratic presidential nomination. One of those wealthy contributors, an heir to a General Motors founder, bankrolled George McGovern's presidential campaign throughout 1971 until some primary victories in 1972 allowed it to attract other donations.

The range of political purposes advanced by donated money highlights the central failing of the campaign finance reform effort. Nearly 40 years after Watergate gave rise to the modern wave of reforms, we still have no idea what constitutes a fair campaign finance system. All attempts to define such a system in terms of political processes wind up proscribing or threatening activities, like publishing pamphlets comparing voting records or books critical of politicians, at the heart of both our inalienable rights and a vigorous democracy. In explaining how democracy became a social reality as well as a political one in the Jacksonian era, one historian wrote, "The way to get into American democracy was to get into it. Ask nobody's permission, defer to nobody's prior claim." The campaign finance reform project culminates in a frightening regime change, where the only way to get into American democracy is to get authorization from the political process hall monitors.

Since no one can explain what distinguishes licit from illicit political processes, it's hard not to suspect that the culmination of campaign finance reform is an intended set of political results. All the efforts to "level the playing field" proceed without reference to any standard of evenness or fairness lying beyond the playing field. The levelers who tilt the playing field this way and that will conclude their work is done when the right team wins, not when they've met some comprehensible criteria of procedural fairness. We need to amend the Constitution to overturn Citizens United, one senator maintains, since that decision "tilted the balance of power toward the rich and the powerful at a time when the wealthiest people in this country have never had it so good." We'll know we've tilted it back just far enough, apparently, when President Dennis Kucinich is delivering his inaugural address.

Ohio Farmer

 

Preserving the Constitution and the Nation

To the Members of the 112^th Congress:

These letters hope to find, in the continually arising, pressing political questions and choices of the moment, those principles or observations that have always been and will always be necessary to our deliberations as a free people.  We think there may be a good occasion for this in the President's recent decision to sign the National Defense Authorization Act (NDAA).

For some of the voters who were most enthusiastic about Barack Obama in 2008—those who have since then been disappointed by the President's decisions about enhanced interrogation, the detentions at Guantanamo Bay, and warrantless wiretapping, for example— this was the last straw. After first threatening to veto the bill, President Obama signed it into law, despite warnings from fellow Democrats, such as Senator Bernard Sanders of Vermont, that it would "essentially authorize the indefinite imprisonment of American citizens without charges." The New York Times editorialized against its "terrible new measures that will make indefinite detention and military trials a permanent part of American law."

These are minority positions, however, even among Democrats. Nancy Pelosi and Harry Reid joined John Boehner and Mitch McConnell in voting for NDAA. A liberal Democratic president, supported in the main by his party, has taken a position on calibrating civil liberties in light of national security imperatives that affirms more than it repudiates his conservative Republican predecessor's policies.

One explanation of this quasi-consensus in favor of giving the government the power to circumvent normal criminal procedure and circumscribe peacetime civil liberties is that national security is a hard, grave business. Candidates who spoke as glibly as bloggers and editorialists about respecting boundaries regardless of the consequences become far less categorical when they're in important positions of national power and must confront just how horrific those consequences might be.

Drawing the lines and rightly understanding the nation's exigencies is not merely a post-9/11 problem. The most famous example in our history is Abraham Lincoln suspending the writ of habeas corpus – first by executive order, later according to congressional enactment – as secession and civil war consumed the nation in 1861. He defended his actions in a message to Congress: Are "all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the [president's] official oath [of office] be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?"  Lincoln elaborated his point in 1864:

My oath to preserve the constitution to the best of my ability imposed upon me the duty of preserving, by every indispensable means, that government – that nation – of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.

Of course, the government might mistakenly or cynically claim that the preservation of the nation mandates otherwise unconstitutional actions. In 1944 the Supreme Court upheld the constitutionality of sending over 100,000 Japanese Americans to internment camps after Pearl Harbor, a policy implemented by two of the great liberal heroes of the last century, President Franklin Roosevelt and Earl Warren, later Chief Justice of the Supreme Court but at the time the governor of California. Eight years later, however, the Court ruled that President Harry Truman had exceeded his constitutional and statutory authority when, during the Korean War, he issued orders nationalizing the steel industry to prevent a strike by the United Steelworkers from shutting down the mills.

The "war on terrorism," unlike the Civil War or World War II, is not going to conclude with a formal surrender. Since we won't know when it's over, we have reason to wonder if it will be over. The idea that otherwise unconstitutional measures might, because of an existential threat, become lawful means to preserving the nation requires a bigger, more difficult investment of citizens' faith if the existential threat is not an episode but an open-ended state of affairs.

Even if we're not at war in the aftermath of a terrorist attack that killed thousands of Americans in a single day, we all know we're at … something. There is no tidy formula that defines the circumstances under which otherwise unconstitutional actions may be rendered permissible, especially in the treacherous, uncharted waters we must navigate. In the absence of such a formula, the position of ardent civil libertarians is that the only way to avoid a slippery slope to tyranny is to insist that there are no circumstances, ever, where grave national threats justify ordinarily unconstitutional government actions.

A more comprehensive but less clear-cut position is that the idea of eternal vigilance being the price of liberty works two ways: First, we must be vigilant against all enemies, foreign and domestic, whose threats may sometimes require the government to preserve the nation by taking actions that would ordinarily be impermissible. Second, we must be vigilant against the government, especially when it claims that grave dangers justify extraordinary actions. There are no guarantees, but the continuous exercise of both kinds of vigilance gives us our best hope for preserving our freedoms, and the political order in which they are embedded. This dilemma is a permanent feature of the challenge to make an experiment in self-government succeed.

Lincoln asked 150 years ago, "Is there, in all republics, this inherent, and fatal weakness?  Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?"  Our experiment in freedom, it seems, has always been and will always be in part an answer to that question.

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 and Many

To the Members of the 112^th Congress:

Many thoughtful citizens think that Washington is broken – that the federal government is not working as it should. It is not working, in part, because it is working too much. It has gone beyond the Constitution and reached too far into what is properly the business of the states.

A couple of weeks ago, I speculated about some possible reforms that might help begin to return the federal government to its proper scope. But no single policy proposal will bring federal-state relations back into balance.  For that we must recover something of our old understanding of the principles that created the balance in the first place.

As James Madison famously wrote in Federalist 39, our government is "neither wholly federal, nor wholly national." It is something new. Before, countries had been either what Madison calls "confederal" or "consolidated" – either loose associations of sovereign states (like the European Union today) or countries held together by a single, central government. America set out, paradoxically, to combine these seemingly irreconcilable principles – to be many, and at the same time to be one.

Despite what a few continue to think, America is not a confederation. The 13 original states were never separate, independent countries with complete authority over their domestic and foreign affairs. Even from the beginning, as Madison says, the Union had certain powers; most importantly, the American people existed as “one people” from the Revolution on, as the Declaration of Independence states.

On the other hand – contrary to what so many elected and appointed officials have for so long supposed – we are also not one big, consolidated mass (something to keep in mind when the Electoral College makes its quadrennial claim on our political attention). The American people are "the Citizens of each State" as Article IV of the Constitution describes them. This means that the states are not simply administrative districts of the federal government that exist to carry out federal programs. They are real, living, distinct political societies. We are always Americans first, but for some purposes we are 50 different peoples with different needs, interests, and ways.  We are citizens of the United States with a direct relation to the federal government, and we are citizens of our own states with a direct relation to our state government.

Following this principle, we the people, through the Constitution, empower the federal government to handle certain tasks like foreign policy, national security, coining money, and regulating commerce. These are areas in which the American people are and must be tied to each other politically through a single, national government. The United States must speak with one voice in foreign affairs, and a vital national economy requires a common currency and commercial regulations.

As the Tenth Amendment makes clear, however, the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states (or to us, the people). Basically, states are supposed to be in charge of everything not handed over to the federal government – things that affect everyday life like criminal law, education, speed limits, and even sewers. These are areas in which the people of the different states really are different societies that have different interests and identities. Fifty-five miles per hour may make more sense in Rhode Island than in Montana. What children need to learn and how they should do it depend a lot on the character and needs of the place where they live.

In the last 30 years, we’ve rediscovered that leaving states to design solutions to their problems is a smart way to make policy. It lets solutions be tailored to particular needs, and other states can see what works and what doesn’t. So Congress stopped trying to bribe the states to force all their citizens to drive 55 mph.

But the federal government continues to overreach, because too few elected and appointed officials have any regard for federalism as a principle in its own right. Federalism is one of America’s great principles of freedom. Vital state governments are an essential part of robust self-government in America. Our Declaration of Independence establishes the basic principles of justice for all government in America, federal and state alike. The Constitution then gives the federal government as much power – and only as much power – as the American people need to govern themselves justly on national issues. It leaves the people in each state to manage their particular affairs through their own governments.

This federalism makes sense in a country that is united morally by our fundamental principles of liberty and equality but is distinguished by a huge variety of passions, interests, needs, and traditions that are associated in many instances with the history and geography of the states. There has always been and will always be disagreement about what falls within the purview of the national government and what falls to the states. But these disagreements will be much more fruitful when we remember that we Americans set out from the beginning to be one and many at the same time.

Ohio Farmer

Constitutionalism and Credit

To My Fellow Citizens:

In my first letter, I spoke of the need for a constitutional conversation.  I called upon citizens as much as our elected representatives to reflect on “the limitations and principles of the Constitution.”  Perhaps the most important requirement for such a conversation is the recognition that the Constitution is itself a limitation on the actions of the people and their government and that such a limitation is good.

The Constitution is a limitation because it establishes the border between legitimate and illegitimate political action.  It specifies what we may or may not do in our political life.  The people are sovereign, the ultimate power in the land, and may amend the Constitution, of course.  But however it may change, its stipulations impose limits on the people and their government.  The federal Constitution does this for the people as a whole and the federal government.  State constitutions impose limits on state governments and the people acting as the sovereign power in each state.   Living within these limits is what we mean by the rule of law.

Why do the sovereign people accept this limitation on their power?  Why should officials in their government accept the limitation?  In the 1830s, as mob violence spread across America, Abraham Lincoln warned his fellow citizens that joining a mob, ignoring the rule of law, even to do an evident good, such as punishing a heinous murderer, posed a grave danger.   Those who had acted beyond the limit of the law or took the law into their own hands one day could just as easily become the victim of such action another day.  Politicians who assumed the power to do whatever they believed was good for the country, whether allowed by the Constitution or not, taught their opponents to act similarly, to do things those who first acted outside the law were bound to find harmful.  Ignoring the Constitution or the rule of law might appear an expedient way to do good but was just as likely to produce harm.

The harm of ignoring the law was not just this or that harmful action, however, for even lawful action might produce harm.  The greater harm was that ignoring the rule of law bred a spirit of lawlessness.  In such a situation, citizen would be less able to trust fellow citizen, since no accepted rules would guide their actions.  Not trusting each other, citizens would look only to themselves.  In due course, their public and then private lives would be impoverished.  They would come to see too late that accepting limitations on their power, living within the rule of law, was the basis of all the goods they enjoyed because it was the basis of the common good.

The conjunction of the good and the limits that make it possible brings me to the current demonstrations over the financial crisis.  Let me say immediately that the demonstrations themselves are not the problem.  Those gathering in public to express their views have a right to do so, and if legally exercised, this action should receive the support even of those who disagree with them.  The problem is in the views the demonstrators express.

The demonstrators claim that we are suffering now because of the greed of the financiers and politicians who run the world financial system.  Undoubtedly, there are greedy financiers and politicians.  But if they were the cause of the financial crisis, the crisis would be constant.  The real cause of the crisis is not, to paraphrase the poet, in our financiers and politicians, but in ourselves.  We, the people, are the sovereign power in the country and, ultimately, financiers and politicians can do only what we let them do.

What we let them do was to let us, as a nation and individuals, live beyond our means, to live beyond the limits of what we could afford.  It is good to own a home, for example, but it is not good to buy one with easy credit, made available by financiers with the encouragement of politicians, that one cannot afford.  Both nations and individuals go bankrupt when they live too long this way. 

But the bankruptcy may not be financial only.  In the early days of our republic, many argued that excessive credit was a bad thing.  They did so precisely because they believed that someone who lived on such credit showed that he would not accept limits, could not impose them on himself and was thus in a sense unable to govern himself.   Self-government requires self-imposed limits, financially and constitutionally.

Financial recovery will come, slowly perhaps but certainly.  Constitutional recovery, more difficult and more needful, is less certain.  Most needful of all—if both recoveries are to endure to the limit possible for human achievement—will be a recovery of our willingness to live within our limits.

Ohio Farmer

Congress and the Constitution

To the Members of the 112^th Congress:

Constitution Day approaches, the day on which we annually commemorate the signing of the Constitution on September 17, 1787, in Independence Hall in Philadelphia.  Americans—constitutional people that we are—should celebrate. After declaring our independence in 1776, the first action that "We the People" took was to give ourselves constitutions in our various states. Then we created our first national constitution, the Articles of Confederation. A few years later we replaced the Articles with the Constitution we still have today. We are not the oldest country in the world, but our written Constitution has endured longer than that of any other people. That fact is worth not only celebrating, but pondering.

This is especially important for members of Congress. As these letters have had occasion to observe, Congress is at the very heart of our experiment in constitutional self-government. In the Constitution, Congress comes first: it is Article I. Congress holds the law-making power without which the president has much less to do and the federal courts nothing at all.

Congress also has the greatest responsibility for interpreting our Constitution. Most people think that it is the job of the Supreme Court to tell us what the Constitution means. It is true, as Alexander Hamilton wrote in The Federalist #78, that "it is the proper and peculiar province of the courts to say what the law is," but many people have misinterpreted this passage. Hamilton does not say, and does not mean, that the Supreme Court is the only part of the federal government with the authority to interpret the Constitution, or that its interpretations are automatically supreme over Congress. He is simply defending the power of the federal courts to interpret the Constitution in order to decide the legal case in front of them, as courts must do. As he says in the essay, he is defending the independence of the federal courts, not their supremacy.

In fact, of all the branches, Congress has the primary authority to interpret the Constitution. Like the president or the Supreme Court, Congress receives its power from the Constitution.  Just as the president has no authority to act against the Constitution, you in Congress have no authority to pass legislation that violates it. So—as the 112^th Congress has distinguished itself by recognizing—every time you consider a bill, the first question you must ask yourself is not: "Do my constituents like it?" or even "Is it a good idea?" but "Is this Constitutional?" That's not a matter of partisan politics; it's a matter of legitimate authority.

In asking the very question, "Is this bill constitutional?" members of Congress are interpreting the Constitution. You can take that duty seriously or unseriously, but you cannot avoid it. In making ordinary law, Congress necessarily makes a judgment on the meaning of the "Supreme Law of the Land." Unlike the other branches, however, Congress is the first place for these judgments. The president does not have to consider the constitutionality of a bill until it reaches his desk; the Supreme Court does not have to think about it unless and until a case reaches its bar. You must weigh it while the legislation is being drafted, while it is being examined in committee, and while it is being debated on the floor.  A bill should never make it out of committee, much less Congress, without the most serious constitutional deliberation.

This is why it is so heartening that the 112^th Congress began by reading the document that enumerates its powers, and why it is so important that bills cite their constitutional source of authority. It means that Congress is taking seriously its duty to interpret our Constitution.

In doing that, you are restoring an old tradition that had almost been forgotten. Since the beginning of the Republic, Congress has been the place for our nation's great constitutional debates. Consider the disputes in the 19^th century over the national bank, or the tariff, or the power of Congress to prohibit slavery in the Western Territories. Or in the 20^th century over regulating industry, establishing Social Security, or passing the War Powers Resolution. At each of these moments, it has been Congress that engaged in the most serious and searching debate on the meaning of the Constitution.

That constitutional deliberation must continue in Congress if we are going to restore the American experiment in self-government. For it is in Congress where the American people most fully govern themselves: where the common rights and responsibilities of the American people are submitted to law, and where the variety of the legitimate interests of the American people are most fully represented. When people's representatives engage in constitutional deliberation, the American people engage in it too.

This is a day to remember that if the Constitution is going to endure—if the American people are going to continue to be a constitutional people—Congress must be the place where the Constitution is most deeply studied, interpreted, and lived out. Only then will the habits and principles of constitutional government be restored in our law.

Happy Constitution Day.

Ohio Farmer

Constitutional Lines

To the Members of the 112^th Congress:

We have observed in these letters that the recent debt ceiling debate reflected deep divisions in Washington, D.C., but that those divisions, in turn, reflected the citizenry’s ambivalence about how big government should be, how much it should do, and how much it should tax, borrow, and regulate.  The first phase of the debt ceiling debate ended with legislation to raise the nation's legal borrowing authority by $900 billion and to cut planned federal spending over the next decade by a little more than that amount.  Thus, Congress and the president achieved Speaker of the House John Boehner's goal to match any debt ceiling increase, at least dollar-for-dollar, by deficit reductions.

The legislation also sets in motion a second phase, where a "super committee" of six members of the House of Representatives (three from each party) and six senators (also three from each party) will endeavor to reduce the nation's deficit spending over the next ten years by a further $1.5 trillion.  If the committee agrees on a plan by November 23, 2011, Congress approves it in an up-or-down vote without the possibility of offering amendments by December 23, 2011, and the president signs it, the debt ceiling will be increased by $1.5 trillion.  If the committee can't agree on a plan, or submits one the Congress votes down or the president vetoes, the debt ceiling will be increased by $1.2 trillion, and automatic reductions of federal spending by the same amount over the next decade will take effect – spending cuts evenly divided between discretionary domestic programs and national defense spending.

It is remarkable that, three years after the Democrats' across-the-board victories in the 2008 elections, deficit reduction has become the top item on the national political agenda.  The most important cause of this change in the political weather is the emergence of the Tea Party movement, which took shape in 2009 and propelled Republican gains in the elections of 2010.  That movement remains disparate – it has no headquarters, no single leader, and no agreed upon platform.  Yet some core ideas do connect all of the Tea Party's factions and actions. One friendly observer described the Tea Party essence as "populist constitutionalism," since its "divergent groups agree that the federal government has, over the last several decades, stepped further and further outside of the bounds of the Constitution."  Some of the movement's prominent figures describe themselves as "constitutional conservatives."

The endeavor to re-establish limits to the government's sphere of action and authority is highly laudable, and fully consistent with the logic and spirit of the American founding.  That undertaking will, however, be an intellectual challenge.  Reasonable patriots may disagree about the location of the line the authors of the Constitution drew separating what the government may do from what it must not do.  They may disagree, as well, about whether the logic of the Constitution countenances informal adjustments to the location of the government's boundaries over time, or demands formal adjustments only, using one of the procedures for amending the Constitution specified in its fifth article. 

For example, the power of Congress to declare war, specified in Article I, has fallen into disuse.  America hasn't declared war against any nation since 1941, yet has been involved in a number of wars over the past 70 years, some of them large and prolonged.  Does constitutional conservatism, rightly understood, entail retroactively designating all of these wars – including Korea, Vietnam, Operation Desert Storm, Iraq, and Afghanistan – illegitimate for never having been formally declared?  If so, then either Congress must declare war to authorize future martial actions, or the nation must amend the Constitution to give explicit legitimacy to the kinds of authorizations Congress has come to rely on, such as the Tonkin Gulf resolution that was the legal basis for the war in Vietnam.  If not, then resolutions and authorizations that fall short of formal declarations of war have acquired a de facto constitutionality: They aren’t mentioned in the Constitution, seem not to have been envisioned or favored by the Constitution’s authors, have not been the subject of any constitutional amendment, yet have gained acceptance as the way the federal government arrives at decisions about military actions.

The fact that there are disputes about the location of the line between what the government may and may not do, and about whether that line is bright and tight, or wide with shades of gray, does not invalidate the constitutional conservative argument that erasing any such line renders America a very different kind of republic.  James Q. Wilson, one of the preeminent American political scientists of the last half century, helps us understand this. The ultimate meaning of the triumph of the New Deal, according to him, is the collapse of the "legitimacy barrier."  Since its fall, he argued, "political conflict [has taken] a very different form.  New programs need not await the advent of a crisis or an extraordinary majority, because no program is any longer 'new'—it is seen, rather, as an extension, a modification, or an enlargement of something the government is already doing.  Since there is virtually nothing the government has not tried to do, there is little it cannot be asked to do."

The correct label for the alternative to limited government is not big government, but unlimited government.  The destruction of all legitimacy barriers creates a new constitutional logic in which government grows, not just very big, but limitlessly big.  All the forces – political, economic, and judicial – that might constrain it are rendered ineffectual.

This deformation of our republic has gone on so long, and acquired so much inertial strength, that the Tea Party movement's mission is politically as well as intellectually audacious.  We have had occasion to note in these letters Abraham Lincoln's argument that "public sentiment is everything" in American democracy: "With public sentiment, nothing can fail; without it nothing can succeed.  Consequently, he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions.  He makes statutes and decisions possible or impossible to be executed."

The ultimate goal of constitutional conservatism is to mold public sentiment into a broad, durable consensus in favor of rebuilding legitimacy barriers in American government.  This is not a task that will be accomplished by one legislative fight over the debt ceiling, or in one or two election cycles.  Conservatives, constitutional and otherwise, sometimes speak as though the establishment and perpetuation of the New Deal is the result of some kind of coup d'état.  The fact is, we have this bloated government because we, the people, have shown our favor to the expansion of government's activities far more reliably than to their contraction.  The success of constitutional conservatism will depend on exercising the statesmanship that carefully leads the people to set aside their acquired tolerance for a government that purports to have a program for every problem, and rediscover their older apprehensions that any government strong enough to give you anything you want is also strong enough to take away anything you have.

Ohio Farmer

Willful Majorities or Constitutional Majorities

To the Members of the 112th Congress:

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

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

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

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

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

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

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

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

Ohio Farmer

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 Commerce Clause

To the Members of the 112^th Congress: 

Are there any limits, in principle, remaining on federal power in America?  We have seen in these letters that there are elected and appointed officials and citizens in the country who would answer, for all practical purposes: “No.” We have also seen that the question is not closed and that it is not just for lawyers or judges to decide; it belongs to all the people, and to all three branches of government.  Let us reflect on one path our nation took that, over the course of a couple of generations, made assertions of unlimited federal power commonplace in America; and let us consider some recent decisions by the courts that remind us that the constitutional conversation is not over. 

Much of the current debate over federal authority (including the lawsuit over the Patient Protection and Affordable Care Act—PPACA or Obamacare) turns on how much power Congress has under the Commerce Clause, which states that “Congress shall have Power to . . . regulate Commerce . . . among the several States.”  The Founders inserted the Commerce Clause into the Constitution to correct a deficiency in the Articles of Confederation, which led states to impose duties on goods from other states, or goods which traveled through their states.  James Madison lamented that, in some cases, it was cheaper to buy goods from Great Britain than from a neighboring state given the taxes and duties that the states were placing on the goods.  The Commerce Clause was intended to give Congress the authority to facilitate the free flow of goods among the states. 

In the late 19^th and early 20th century, states began to regulate areas like working conditions, hours, and crop production and pricing, but Progressives argued that federal regulation was necessary to bring about more reforms.  Many of these policies enjoyed (and continue to enjoy) some measure of popular support. But there was a problem for those who wished to implement the policies at the federal level: the Constitution provided no general authority to regulate businesses.  And so, Progressives and New Dealers in Congress and the White House turned to the Commerce Clause.   

For a time, Progressives and New Dealers were politically successful in promoting their agenda in Congress and the White House, but they had less success in the courts, which found that, while Congress had authority to regulate some local activities that affected interstate commerce, the authority was limited. With retirements, replacements, and threats of court packing, the Court’s position changed over time.  By 1942, the Court decided a case in a way that many believed spelled the end of any limitation on federal authority.  In Wickard v. Filburn, the Court found that the federal government could regulate wheat grown by a farmer for personal consumption under the theory that such local activity, when aggregated, could substantially affect interstate commerce.  

After Wickard, Congress passed innumerable regulations covering business and non-business activity alike based upon the Commerce Clause and the theory that, when aggregated, just about any activity could substantially affect commerce.  Over the course of decades, presidents of both parties signed legislation based upon expanding notions of federal authority, and on the popularity of the underlying legislative policy, and the courts acceded to the enterprise. But the constitutional conversation continued. In the mid-1990s, the Supreme Court struck down the Gun Free School Zones Act, finding that the federal government does not have a general police power to regulate the non-economic act of carrying a gun in a school zone.  Next, the Court struck down a provision of the Violence Against Women Act (VAWA), which permitted individuals to sue their alleged attackers for gender motivated violence.  The Court again found that non-economic violent actions could not be aggregated to establish a substantial connection to interstate commerce. 

Both of these bills were popular, passing Congress with overwhelming majorities.  And why not? Very few would argue in the abstract against banning guns at schools or prohibiting gender-motivated violence.  Given the popularity of the legislation, the Court’s decisions were first widely attacked, but over time they began to receive acceptance in quarters where few expected it. A constitutional conversation was kindled, between the branches—and among the people. Some feminists, for example, who chastised the Court for striking down VAWA, recognized that they did not like the idea of a federal government with unrestricted regulatory authority over their lives.  Citizens and their representatives began to talk not merely about whether the policy objectives sought by Congress were desirable, but whether the federal government was empowered to act in that sphere at all. 

Which brings us back to Obamacare.  Is it bad policy?  That is a very important question. But whatever we might think about that, let us not fail to give our full and best attention to the separate and even more important question: Is it constitutional?  Even the courts that have upheld the act have recognized that there is something unprecedented at play.  Never before has Congress ordered citizens to buy something, and penalized them for failing to do so. If this is permitted, what are the limits? Congress doesn’t have the power to pass any law it wants; it has the powers given to it by the American people through our Constitution—nothing less, but also nothing more. Limits matter. A law based on the assumption that the commerce power is unlimited violates the basic principle of constitutional self-government.

What limits are there to federal authority? This should be the focus of our constitutional conversation.

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

America and the World

To the Members of the 112th Congress:

America, on the president’s orders, has intervened militarily in Libya; the president has given a speech explaining the intervention and the manner of it; the country and the world debate the matter as events unfold; the outcome remains uncertain.  In his speech, the president insisted that, because the Libyan people faced "the prospect of violence on a horrific scale," America had a responsibility to act. "To brush aside...our responsibilities to our fellow human beings under such circumstances would have been a betrayal of who we are.” 

These letters are particularly concerned with “who we are” as a people and what this requires of our politics, domestic and foreign. So I leave aside for now the many other interesting and important questions swirling around the president’s words and deeds, including his deference to the United Nations and his neglect of the United States Congress. 

What does “who we are” tell us about how we should act toward the rest of the world? The president doesn’t say much about what it is that makes us who we are, though he seems now to be affirming, on behalf of our fellow human beings, a kind of American exceptionalism, about which he had been studiously ambiguous in the past. We might begin to think about who we are by considering the two most important ideas in American political life.  The first is found in the Declaration of Independence, which was cited in the last letter and will surely be cited often in future letters—the idea that “all men are created equal.” The second is derived from this idea and is found in the opening phrase of the Constitution: it is the idea of consent expressed in the familiar words, “We the People of the United States.”  These are words and ideas, not to conjure with, but to consider carefully as events demand our attention and action at home and abroad. As long as Americans are Americans, these ideas will certainly continue to be essential ingredients of who we are. So what do they tell us about us? 

The immediate practical purpose of the Declaration was to establish the right of the colonists to separate from the British Empire and its hereditary monarchy.  In this case, declaring all men equal meant that God did not give one man or his family a divine right to rule other men.  Human equality meant that government derived its powers justly only from “the consent of the governed.”  The claim that men were equal meant that not the accident of birth but the deliberate consent of men—“We the People”— was the only rightful basis for government. 

The Declaration had a larger purpose, a broader reach, than the dispute between Great Britain and the United States of America.  Its declaration of human equality denied not only a right to rule based on birth but a right to rule based on race or religion.  Declaring all men equal meant that a common humanity was more fundamental than the accidents of race or religion that separated human beings.  

The universality of this founding principle explains something of the claim the world has on American sympathies.  Having based our national life on the equality of all men, we recognize that in principle any human being is a potential citizen of the United States. We feel an affinity with people around the world, especially those struggling for freedom or stricken by natural or manmade disasters.  In our common humanity, we believe somehow that our hopes and fortunes are tied to theirs.  These feelings can give rise to a sense of obligation that seems to be what President Obama has in mind—our “responsibilities to our fellow human beings,” which he invokes when he says it would be a betrayal of who we are if we didn’t intervene in the way he chose to do in Libya. 

But in fact, of course, only Americans are American citizens.  Our revolution began with a universal claim about human equality, but it culminated necessarily in the establishment of a particular nation.  “We the People of the United States” are distinct from the other peoples of the world not by birth, race, or religion, but by the deliberate act of establishing ourselves as a different people.  By this act of consent, the people of the United States committed themselves to each other, as distinct from all the others who live outside the bond of citizenship.  In a world where freedom was scarce and tyranny commonplace (a world, in this respect, very like the one in which we continue to abide), we committed ourselves to establishing our own freedom and preserving the blessings of liberty in the United States, not to assisting the democratic aspirations of others or their recovery from disaster, however sympathetic we may be to the plight of our fellow men and however eager we may be to help them. 

No model or mathematical formula can help us strike the proper balance between what we owe to our fellow men and what we owe to ourselves.  Such balance is a matter for judgment and deliberation, as circumstances arise.  This judgment will take into account the diverging claims of equality and consent, the former what Americans share with other peoples, the latter how we distinguished ourselves from them.  These two American principles temper each other as we deliberate about how we as a people should act in a dangerous world of potential fellow citizens. 

Our deliberations will be well served by reflecting that the American founders thought the best thing Americans could do for the rest of the world was to succeed in our own experiment in freedom. As the founders thought of it, the American cause—the cause of liberty— is the cause of mankind.  If we could show by the success of our experiment that free government could be good government, this would be the greatest gift Americans could give to their fellow human beings—our own political well being would be a constant act of philanthropy.  America’s success would be cause for all men to rejoice. By the same token, failure of the American experiment in freedom would “deserve to be considered as the general misfortune of mankind.”  

From this point of view, Americans should want to know how our intervention in Libya enhances the prospects of the American experiment. If it does, the world will be a better place. If it doesn’t, it betrays America’s primary responsibility to our fellow human beings.

Ohio Farmer

Capacities of Mankind

To the Members of the 112th Congress:

In recent weeks, the course of human events—from Tunisia, to Libya, to Egypt, to Syria—reminds Americans once again that tyranny is common in the world, that it is hard to remove, and that it is even harder to replace it with freedom and good government. We Americans, of every political stripe, generally like to consider ourselves enemies of tyranny and friends of freedom in the world. Of course, we have lots of debates among ourselves (and with others) about what this means and what this requires of American foreign policy. These debates have been rekindled lately, and I take this occasion to recollect that America came into existence by overthrowing a tyranny and that we have had our own struggles replacing it with freedom and good government.

Our success in these struggles—to the extent that we have met with success—is due to moral and political habits and dispositions that arise from principles that must be learned. These principles and dispositions are the most essential conditions of freedom. Everything else is secondary. Without them, you might exchange an unpopular for a popular tyranny, an incompetent and destitute tyranny for a competent and wealthy one. But you will never have free government.

America began its experiment in freedom with what has become and will forever remain the most characteristic and defining American affirmation:  “We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights.”  The truth of human equality and liberty was asserted against all tyrannies—whether of race, class, or religion, one, few, or many.

That men throughout history tyrannized one another in an infinite variety of ways was not proof to the American founders that human beings do not possess equal rights by nature—rather it was proof of how rare and difficult a thing it is to secure them.  It is proof of the philosophic rigor, the moral discipline, the political sagacity, and the beneficence of opportunity that are required for reflection and free choice to prevail over ignorance, prejudice, accident, and force.

Proclaiming that all men everywhere and at all times possess by nature equal rights to life, liberty, and the pursuit of happiness, the American founders undertook the historic effort to secure these rights, so far as they thought they could then be secured, to a small people at a particular place and time.  They were acutely conscious of the limits of their ability to secure these rights.  When they were able to establish a “more perfect union” they understood full well how far from perfection they remained.  It was all the new republic could do in the first century of its existence to keep the American experiment in freedom from failing miserably at home while other less fortunate experiments struggled to give birth to  freedom in other parts of the world.

In the course of its history, the American people have many times fallen beneath the high standards they set for themselves at the beginning.  They have strayed from those principles, and they have forgotten them, and become confused about them, and allowed misunderstood self-interest to obscure them.  Our own experience has confirmed for us that democracy requires more of its citizens than any other form of government and that it is no accident that history provides so few examples of successful and enduring democracies.  We count our blessings—the blessings of liberty—when we reflect with John Adams, "how few of the human race have ever had an opportunity of choosing a system of government for themselves and their children," and how few have chosen well.

The “genius” of the American people at the time of the American revolution and founding made it both possible and necessary to establish a country based on the republican principles proclaimed in the Declaration of Independence.  As Jefferson said in explaining the genesis of the Declaration, the ideas expressed in it were “the common sense of the subject” in America.  He was merely expressing “the American mind.”  It was only because the American people had learned to embrace republican principles that it was possible to establish an American republic.  I mentioned in an earlier letter the American founders’ “honorable determination  . . . to rest all our political experiments on the capacity of mankind for self-government.” This was a determination, James Madison affirmed, “which animates every votary of freedom.”  But the founders understood that any people that wished to be free, including the Americans, would have to demonstrate this capacity for themselves, and continue to demonstrate it each generation.  

As the Declaration of Independence proclaimed, the just powers of government are derived from "the consent of the governed."  Only a people prepared to consent to a free government are capable of establishing one; and once they have established it, as Ben Franklin never ceases to remind us, they will need to have what it takes to “keep it.”  At the least, this means a people must be prepared to recognize their own humanity and that of their fellow citizens; they will neither aspire to be masters nor submit to be slaves; they must be prepared to rule and be ruled in turn and to abide by the laws they claim the right to make for themselves.

We know from our own American case, even with all the natural and historical advantages we have had, that it is not easy to achieve or to keep and pass on these capacities for self government. Experience and common sense tell us that these capacities are going to be even harder to achieve without the great advantages we have had. So let us be patient and moderate in our expectations from those who may face great disadvantages.

Ohio Farmer

A Boundless Field of Power

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

Ohio Farmer

Reconstitutionalizing America

To the Members of the 112^th Congress:

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

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

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

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

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

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

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

Ohio Farmer

Civility and Powers

To the Members of the 112^th Congress:

"Civility" has been a word to conjure with for the past few weeks. Since the terrible killings and woundings in Tucson, Americans could hardly open a newspaper or turn on a television without someone shouting at us most uncivilly in the name of civility. In the name of making us all friends, "civility" is wielded as a cudgel would be wielded against hated enemies. The word is deployed as a weapon, the way "bipartisanship" has sometimes been deployed in the service of the most narrow and unseemly partisanship.

Citizens' eyes roll and glaze over at such unserious and trumped up scolding. But civility is a serious theme. We want civility in our civil discourse because, in the language of the founders, we want reason and not passion to govern our affairs. We insist that we will be ruled by the consent of the people, and we are aware at the same time that the people can become a mob. And so, as the last letter observed, we have devised "constitutional ways of constructing and shaping the authoritative consent of the people" so that the "cool and deliberate sense of the community" might prevail in our political deliberations.

Among the constitutional devices intended to help achieve this difficult and desirable result, separation of powers ranks high. This idea, "that the legislative, executive and judiciary departments ought to be separate and distinct," is (let us hope!) familiar to every American eighth grader; let us even be so immodest as to say that it is an essential American contribution to the advancement of constitutional governance.  Separation of powers was so important to the founders that they thought, in James Madison's words, that "[t]he accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny." But I won't rehearse here what (I trust) we all have learned on the subject from fondly remembered grammar school teachers.

In the spirit of renewed attention to the Constitution that distinguishes this Congress, I will hope merely to observe something that may not be quite so obvious and may have a bearing on Congress's response to current challenges. Put simply, in our Constitution the branches are separate, but they are not equal: the vast preponderance of federal authority is delegated to Congress, which is without question the preeminent branch under the Constitution.  One reason this may not be as obvious as it should be just by reading the Constitution is that, over the last fifty years, the separation of powers has tilted a bit out of constitutional balance. The presidential and judicial branches have become assertive and bold in articulating the national agenda, and Congress has largely deferred to this (or to the bureaucracy), sometimes in an effort to avoid difficult or potentially unpopular actions. Think of the fact that we call the recent historic elections "midterm" elections, as if Congress is a sideshow and the Presidency is the main event.

In our Constitution, Congress is the main event, and our separation of powers will serve us better if Congress is not as deferential as it has become accustomed to being (whether to the executive, the judiciary, or the bureaucracy). Let Congress reassert the lawmaking preeminence and responsibility intended for it in the Constitution--initiating constitutional conversations, setting out an agenda which is not necessarily the President's or the Court's, overturning what the members may consider to be the wayward actions of the other branches--and our constitutional deliberations as a whole will benefit.

I hasten to add, lest "irrational exuberance" seize the day, that when Congress acts boldly and takes the legislative initiative the Constitution intends for it to take, members should do so on behalf of their constitutional duty and not for mere party advantage, and they (and we) should hope and expect to find that the executive branch and the judiciary will rise to resist any assertions that seem to them unacceptable, behaving just as is intended in the Constitutional design. This proper functioning of the separation of powers (aided by the checks and balances within Congress) is meant to impede the misuse of Congressional power. We and Congress will display a kind of constitutional wisdom and patience, I think, if we recognize that the power to resist misuses of Congressional power is also a power that might on occasion thwart the necessary and proper uses of Congressional power.

More generally speaking, if separation of powers is designed to impede the rash introduction of radical change, it also has the effect of making it difficult to undo such change. If this Congress thinks it is its duty to do just that, let it act and give its reasons. It will meet resistance, and we all should expect that reasons will be given in turn. This is our Constitution at work. Citizens should anticipate serious argument, not just about policies, but about rights and duties, about the powers of government and limitations on those powers.  We should all learn from this, and all of this, of course, takes time.  And if our elected representatives can't sort it out, then the people, through the ballot box, will speak again, and a new constitutional deliberation, possibly with different participants, will begin.

A final word:  No constitutional devices like separation of powers--none of these "inventions of prudence," as Publius called them--will bring civility or cool and deliberate reflection from a nation of savages. So our broader constitutional deliberations should include not just civility but all the virtues, capacities, and principles that must shape the character of a people if they mean, as we do mean, to be self governing. Among the themes to include in these deliberations is the civic friendship, the care for one another, even in our millions, that could not be missed when the news of the Tucson tragedies spread across the land.

Ohio Farmer

An Experiment in Self-Government

To the Members of the 112^th Congress:

I wrote in the last letter about the sovereignty of the people and about the oaths you take as members of Congress to uphold the Constitution. Both seem to me to be related in a beautiful way to the American experiment in self government.

Whenever I happen to think about it, I can’t help feeling a fresh sense of wonder, and then of gratitude, that the American people, upon achieving sovereign independence and proclaiming to the world their right to govern themselves, submitted their sovereign power to a Constitution, which was at once their creation and the Supreme Law over them.  This great political act reflected, I think, our recognition that the people’s sovereign power is itself subject to what Thomas Jefferson called "the great principles of right and wrong." As Jefferson put it, it was not an "elective despotism" we fought for; we seemed to understand that if our right to self government was to lead to good government, we must establish conditions under which our authoritative consent might become reflection and deliberation—conditions for drawing out from our sovereign selves what Publius called "the cool and deliberate sense of the community."  To form ourselves into a community in which, in Madison’s word, "Reason" might rule, we formed ourselves into a constitutional people. We devised for ourselves constitutional ways of constructing and shaping the authoritative consent of the people into constitutional deliberations by which we would be governed. 

Think what a people we must already have been, to be determined and able to do such a thing. When the American revolutionaries and founders looked back on the history of popular governments in the world (and they were avid students of that history), they beheld scene upon scene of turbulence and instability, of violent agitation between the extremes of anarchy and tyranny. So terrible was the picture, as Publius said, that it gave advocates of despotism an argument against free government altogether. Nonetheless, because of what they called their "honorable determination ... to rest all our political experiments on the capacity of mankind for self-government," the American Revolutionaries insisted that American government would be founded on the"consent of the governed." In fact, as the founders knew, the proud American people would not accept any other form of government.

But this would have been a false pride, it would have been not an honorable but a foolish determination, if the American people did not possess the capacity for self-government they generously claimed for mankind. But they proved themselves not only determined to establish a government based on consent, but capable, in Benjamin Franklin’s famous phrase, of "keep[ing] it."They proved themselves not only to have the pride to insist on freedom, but the virtues necessary to do honor to it (may this always be the case). In subjecting themselves to the Constitution as they did, they proved themselves already to possess a constitution, in their souls—the constitution of a free people, without which the written Constitution would be useless parchment.  

This constitution in our American souls expressed itself in a small way recently in our expectation and gratification that members of Congress should take an oath to uphold the Constitution. This is an oath of fidelity to the Constitution, and not to us, the people. Our high regard for this oath, it seems to me, is the sovereign people’s way of telling our representatives that we expect you to be somewhat independent of us, that we think good government depends upon it. Those who originally conceived this Constitution said in many different ways that you would do your job well by remaining true to the Constitution, even when some people—I mean, us—clamored for you to do otherwise. In such moments, we count on you to "refine and enlarge" the public’s view with your constitutional deliberations. Your oath opens a slight but decisive space between the people and their representatives, in which you can exercise your constitutional judgment in carrying out your lawmaking duties. Of course, you will often disagree among yourselves about what your duty to the Constitution requires of you. But articulating those differences will benefit all of us by contributing to a constitutional politics which will be the most reliable source of enduring sound policy. If we are as good as we claim to be, you will earn our respect, and our vote, when you respect the Constitution and help us to do the same, even despite what we sometimes might think is our contrary interest. 

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