The Constitutional Presidency

The nation has spent the better part of this week mourning the death of Gerald Ford and reflecting on his presidency. I was only two years old when President Ford assumed the presidential office upon the resignation of Richard Nixon in August of 1974, so I do not have the benefit of first-hand experience. In listening to all the reflections and memories of his time in the Oval Office, I was most moved by Ford's first speech to Congress as President (replayed by CSPAN this Wednesday past).

"Our national nightmare is over."

Inheriting a nation torn apart by the Vietnam War and scandalized by the imperial presidency of Nixon, Ford governed with the good of the country foremost on his mind. Pardoning President Nixon and negotiating the withdrawal of U.S. forces out of Southeast Asia were controversial and divisive at the time, but history has proven the wisdom of President Ford's actions in working to bind the wounds of the nation.

If Richard Nixon's was the imperial presidency, Gerald Ford's was the constitutional presidency.

The humility and openness with which President Ford governed in many ways epitomized good governance, as envisioned by the Framers of the Constitution. Ford understood the limits of the presidency, respected the co-equal role which the Congress is meant to play in our constitutional scheme, and worked tirelessly to secure the constitutional rights of all Americans.

Presidents are in large measure fashioned by their times. While President Ford made his share of mistakes, he transcended his times to govern in grace and wisdom.

Re: The Emporer's New Clothes

"What the hell happened to Christianity?"

I have an answer to the question asked by the article to which Kelly linked. But I am afraid most people won't like the answer - either because it will offend their secular sensibilities or because it will offend their religious ones.

George Mason, the Senior Pastor of Wilshire Baptist Church in Dallas, has said that the problem with Fundamentalists is that they know too much too soon. They presume to know the mind of God and then act on that presumption to force the rest of the world to comply with that presumption. And while Christianity is not plagued by extremists that blow people up and saw heads off, it is challenged with Fundamentalists who have hijacked the gospel of Christ and twisted it into a message about themselves. American Christianity is more American than it is Christian and more interested in the power of the Establishment than in the powerless who Jesus says will inherit the Earth.

In the end, Christianity has been beset by a crisis of faith.

The Emperor's New Clothes

While the article in question does not mention government per se, it does do a good job of speaking out against a small minority acting as if they are the "Guardians of Truth". The Cold War hawks seem all cute and cuddly as compared to the current set of neo-Cons who have made an art of rushing to war but not to judgment, wouldn't want to be hurried into doing something rash. Ok, enough of that. Mr. Bakker from the article, not the be confused with the ex-Chief of State James Baker, points out that there are a group of people who are using their religion as a weapon. We chide the Islamic world for their treatment of women but look the other way when someone in our own country calls for the bombing of abortion clinics and the murder of the doctors who work there. Is there any other word for this besides hipocrasy?

One man with a vision.

In our discussions of the use of the power of the State vs liberty of the individual, I often make reference to a sordid affair in America's history brought about by one man's pursuit of vice in a vain attempt to control the country's morals. Who is this purveyor of piety? None other than Anthony Comstock. He is as good an example of one person misusing the power of the State as you can find. Right up there with Hoover and McCarthy. Can there be any better cautionary tale for allowing the States authority to be too easily be misappropriated by those with a personal agenda?

Government and the trade deficit

Craig and I once discussed the importance of the trade deficit to the economy. My theory was that we as a country could afford such a substantial trade deficit because we must be creating value, otherwise we'd be sending capital overseas - 'capital flight'. After further thinking on this, I wonder what would happen if all those goods being imported were no longer being desired by the American consumer. Yes, our trade deficit would go away but what would become of our economy? With trillions of dollars available to spend and only the domestic industry to provide goods, I would imagine we'd be in for a serious bout of inflation. Too much money, not enough goods - classic.

Let's not take such a simple view. What if the money had somewhere else to go? What if Americans started saving all that dough? There would be lots of funds available for investment. If there was a shortage of capital, these new funds would not cause a problem but instead would spark business expansion or startups. But what if our lack of business startups was not caused by a lack of capital? What then? When too much money chases too few investments, wouldn't we start to see speculation which leads us down the trail to a 'bubble'.

So, is the trade deficit a symptom of how successful we are are creating value? If we tried to reduce it through less consumption, would cause ourselves more problems through inflation or speculative bubbles?

Maybe the deficit is the least of our worries.

The Purpose of Taboos

Which taboos are sacrosanct?

My point was not to suggest a list of taboos specifying which should be maintained and which should be jettisoned. And my real aim was not to complain about the removal of traffic signs per se. But it makes for a good example of this broader thought to do away with societal norms without thinking through the wisdom of doing so. Traffic laws and regulations have been developed by society with over a century of experience in driving cars. They were written and adopted for specific reasons, one of which was to make sure drivers are courteous to one another by not plowing into one another.

If specific signs are more distracting than helpful, then remove the offending signs. But to throw out the whole lot of them is tomfoolery and, as I said, potentially dangerous. The spirit of the old rules might govern traffic flow for a while. But ten years from now, will new drivers who do not have the benefit of learning under the old socially-enforced traffic rules be able to adapt to the new rule-less road?

Which corners stop or yield at a particular intersection? I might feel convicted to stop out of courtesy, but some days I might not. I might be in a hurry. If the guy going through the same intersection adjacent to me is also feeling discourteous, we will crash into each other because we will both be trying to occupy the same space - the middle of the intersection - at the same time. And this is liberating how?

Traffic rules are not societal taboos in the same manner that, say, prohibitions against incest or polygamy are. But the anarchist's goal is the same in each - complete freedom of the individual, no matter the damage done to those around him in the process.

It is these consequences that are so poorly understood. These norms that have been built up over centuries for reasons we no longer understand are being torn down with irresponsible and reckless haste. The separation of church and state took centuries to accomplish, over which time much thinking and theorizing had been attained regarding the benefits and consequences of the separation. What society was doing was well understood.

But the West has largely lost its capacity to engage in ordered, reflective thought. We are five-year olds demanding what we want right now with no regard as to how it will effect others or society at large. In our quest to ensure that minority rights are protected, we must remember the role that societal norms play in making our civilization function. While it might be cute and fun to glibly throw around labels like 'taboo,' doing so does not automatically make them bad or irrelevant.

Re: Taboos

I think Craig has a good point about taboos. The general question is how to distinguish between the taboos that are for our own safety, like incest, versus those that appear to be based on superstition, which I can't quite think of a good example. As for the traffic sign removing Europe, I think they are onto something. It does not take very much signage to overwhelm a driver. The irony is here in Texas they actually have signs that say, "Obey warning signs". I hope they aren't afraid of people missing the warning signs because they were too busy reading the "Please read our signs" sign. I do not agree with the premise that removing traffic signs is like removing taboos, if that was the question. I wasn't sure about the connection Craig was making. If the sign-removal is done where traffic is already somewhat slow speed because of congestion, making less destractions and encouraging driver interaction should not only improve traffic-flow but reduce accidents.

Craig, what are some of the taboos that have been toppled of late and which ones are sacrosanct, or should have been?

Re: 'Why?' and the Efficacy of Taboos

Kelly asks good questions in this post, the most important of which is "how do we protect the minority from a majority that would use the power of government to enforce belief (however wrong) onto an unwilling minority?"

As a Baptist, I am part of a tradition that came into existence in order to fight for the freedom of the conscience of every human being. We believe that faith can be imposed on no man, woman or child, and each person must be free to worship - or not worship - according to the dictates of his or her own conscience. Faith and belief are deeply personal matters, and the State or church heirarchy cannot force belief through the force of arms - or laws.

Having said that, is there an unhealthy extreme to which this principle can be taken? Are there certain taboos that are insisted upon in order to allow society to function? I read story this morning. Apparently at least a few European towns are ready to do away with the most basic of norms - traffic signs.

An excerpt from the article is illustrative:

"The many rules strip us of the most important thing: the ability to be considerate. We're losing our capacity for socially responsible behavior," says Dutch traffic guru Hans Monderman, one of the project's co-founders. "The greater the number of prescriptions, the more people's sense of personal responsibility dwindles."

Having prescriptions does not diminish the sense of personal responsibility in those who have personal responsibility in the first place. They simply bring order to a potentially chaotic situation where chaos will prove deadly. Guesswork is removed as people know what the rules are - in this case, rules of the road. To say that removing traffic signs will result in more courtesy is the silly argument of a five-year old that becomes unconscienably dangerous in the hands of a grown man or woman. There are times, like driving on the road, when rules enable freedom.

It has been a LONG time (centuries) since we in the West have had to build a society from the ground up. In our rush to enable personal freedom, we are tampering with "taboos" that our ancestors from those many ages ago put in place in order to build a society that functioned. While some of these probably are unnecessary, we are removing many of them with frightening speed and glee, before we understand the ramifications of doing so.

'WHY' - The world's shortest 4-letter word.

To those who might be wondering what all the fuss is about: are we just wasting out time? Shouldn't we get back to work like good little citizens; quit questioning our betters and let them get back to the dirty work of making the world more like us, er, I mean a better place...

Is all this discussion about the proper way to setup a government just a bunch a mental bubble-gum? All sweetness and light; keep you busy for a short while but lacking substance? Consider the following from the linked article by Paul Graham:

I suspect the biggest source of moral taboos will turn out to be power struggles in which one side only barely has the upper hand. That's where you'll find a group powerful enough to enforce taboos, but weak enough to need them.

When we talk about the tyranny of the majority, this might qualify. If the majority were actually right about the taboo in question, it wouldn't need to do anything to enforce the 'taboo'.

So, how do we protect the minority from a majority that would use the power of government to enforce belief (however wrong) onto an unwilling minority?

On Jeffersonian Revolutions (or On the Politics of Being 'Thumped')

Jefferson once said that a little revolution every now and then would be good for the country. What happened in the 2006 U.S. elections could be considered a 'little revolution'. I'm sure the incumbents might disagree as to the necessity but I digress. Let's examine what happened that day. What did the party in power do to trigger the revolt, what message or messages were the voters sending and what should the newly empowered party learn from the election?

First off, was the GOP asleep at the wheel? How else do you explain such a sweep where they lose the majority in both the U.S. House and Senate? Was it inevitable?

The Bush Administration leadership stance was that they thought that their current policies were taking the country in the desired direction. Stay the course - stick with the status quo. No one can force the Bush Administration to stray from their course. If they feel it is that imperative to continue their policies then it should be easy for them to convince the incoming majority of the wisdom of their decisions. I daresay that Bush's idea of 'Leadership' is to not waffle. While it can be said that you are being consistent with your principles, it also makes you susceptible to the sweet siren song of hubris. The question I would ask is, wouldn't it be prudent to at least entertain the notion that you could be wrong. In that situation, a little humility will go a long way. Think FDR during the Depression. He didn't defend a program that didn't work, he wanted results even if they came from a program that wasn't his own. Now that is real leadership. If you dismiss polls or the voices of your critics, when those voices get so loud as to sweep you out of power, they are essentially saying, "You are not listening to us!"

Secondly, the voters showed with their ballots that they have misgivings about the current policy direction. You can dismiss the pollsters and pundits, close the door on your critics, but you can not ignore the voices of the voters. It would be one thing if it was only the opposition party clamoring for attention. The danger is when you lump all who disagree with you into a single category. The political cartoon Doonesbury does this succinctly by having U.S. Soldiers refer to the Iraqi insurgents they are battling as 'Benchmark haters', subtly implying that those who disagree with the Bush Administration are in league with terrorists. The message the voters are sending is, "listen to us." We can disagree and still be loyal.

Thirdly, the biggest mistake the Democrats can make is to ignore the golden rule. Take the high road and treat the new Republican minority as you wished they had treated you. Also, don't waste the opportunity on investigating old dirt. Instead of trying to prove that the dirt is/was real, act as if all that uncovered dirt was real. Use the time you have to lead the country upwards and onwards instead of a vengeful trek into the mud. Be vigilant for new cases of ethical lapse, regardless of party. If the GOP had actually shown some gumption to address the misdeeds of their own members, the election may have had a different outcome.

Power grab

Slashdot is known for users who place a high regard for personal liberty. With that being said, I'm not normally a government conspiracy theory fan but this one is an example of how the Federal Government can increase their powers in small increments until one day, when it is seemly too late, we wonder how it happened that the Federal Government can override the will of a State. I would have been perfectly happy with the change to section 1076 if they had left it with wording that limits the authority to when the government of a State requests assistance. If they don't because they've been too disrupted, that is one thing, but the wording lets the President use Federal troops when the President deems the State to be unwilling to enforce a law. If a State elected official decides not to enforce some law, we already have a mechanism to force action. There is a recall, their is a lawsuit, there is an election. During the fight for Civil Rights, Federal troops were used to integrate schools. While from a social justice point of view this was the right thing to do, did that create a dangerous Constitutional precedent? Big Brother has to force one of its wayward children to straighten up and fly right.

Re: We the Sheeple

Kelly asks why it is so difficult to get people to think. I think (was that hard?) that people don't want to be bothered with things that they feel like are out of their control. People are busy working, raising kids, contributing to their schools and communities, and generally living life. People have little energy left for the larger concerns that demand our attention and cry out for our action. It seems the machine of global capitalism is worsening this problem, involving people more and more in the minutia of their own lives so that they care less and less about what is going on in their society or the world as a whole. This is not to say that people's lives are unimportant. They are very important. But the kind of society and world we live in are important as well.

We the Sheeple

Why is it so hard to get people to think? I know it can be hard to believe, but there is a class of people out there who once they form their party loyalty are content to vote the straight party ticket. Do they not care if they are electing idiots or power-mad egomaniacs as long as they are 'our kind of people'? Is the straight party ticket tantamount to absolving oneself of political responsibility? A way of saying, "I don't care what the issues are as long as 'we' (whoever that might be) are in power. Is there a lure to this type of black-and-white thinking that I don't understand? Us or Them, with me or against me? Can someone explain it to me?

Power of Taxation

In Section 928 of his Commentaries on the Constitution, Joseph Story has the following to say about Congress's power of taxation enumerated in Article 1, Section 8:

Having thus disposed of the question, what is the true interpretation of the clause, as it stands in the text of the constitution, and ascertained, that the power of taxation, though general, as to the subjects, to which it may be applied, is yet restrictive, as to the purposes, for which it may be exercised; it next becomes matter of inquiry, what were the reasons, for which this power was given, and what were the objections, to which it was deemed liable.

Those Uncompromising Quakers

The Quakers lacked neither courage nor energy. It was not so much the actual content of their creed as the uncompromising obstinancy with which they hung on to it, and their attitude toward themselves, that were decisive. The two flaws fatal to the influence of this remarkable people on American culture were, first, an urge toward martydom, and a preoccupation with the purity of their own souls; and, second, a regidity in all their beliefs.

...

The Puritan success was accompanied, if not actually made possible, by the decline of American Puritanism as an uncompromising theology.

--Daniel Boorstin, The Americans: The Colonial Experience, Chapter 6

Liar, Liar

Katherine Harris has stirred things up again with her recent comments that the separation of church and state is "a lie" and that electing non-Christians to office is to "legislate sin."

While there is some legitimate debate around the history of the doctrine of church-state separation, it's not like the concept was foreign to the Founders. Thomas Jefferson wrote about it in his famous letter to the Danbury Baptist Association. And the idea goes back further in the writings and ideals of Baptist Roger Williams, as well. And in any case, the concept of separation between the government and the religious is well-established and is not a seriously questioned constitutional principle.

I find Rep. Harris' comment that electing non-Christians to office would be akin to legislating sin to be peculiar. I'm not sure if she assumes that Christians in office are immune from legislating sin, or if she believe that non-Christians are just incapable of doing good. In either case, who defines what a "sin" is? If we were in Iran, Rep. Harris would be sinning by speaking out in the first place.

Perhaps her ideas of legislating sin are informed by her other strange comment - that the nation's Founders did not intend for America to be "a nation of secular laws." What, pray tell, makes a law "secular?" For that matter, what makes a law "sacred?" Can a law ever be both? A good case can be made that murder would be illegal even in a society devoid of religious influence. The idea that my rights stop where another person's nose begins is very appealing to even the atheists of this country. Self-preservation is a universal trait of all living beings.

Rep. Harris' comments are problematic on several levels, but perhaps the most troubling aspect is that she is starting with a strange view that artificially separates the secular from the sacred in exactly the way that the Founders did not want them to be separated. She does this only to turn around and fuse them where the Founding Fathers sought to separate them! While the faith of people should guide their decisions and behavior in elections and in government, faith should never become the concern of the government. Government should govern for the good of all its citizens, regardless of race, creed, color, gender, or age, and the church, mosque, synagogue should be above the politics of the day so that each may continue to be a prophetic witness to society.

War Powers in Brief: On the Irreducible Politics of the Matter

Roger Pilon's article, The War Powers in Brief, argues that the Founders intended to build a constitutional war powers framework that allowed as much flexibility as possible. Politics, rather than onerous constitutional structures and balances, are supposed to govern American war-making.

I don't buy his analysis that the Founding Fathers sought to retain the basic model of the English assignment of war powers (war making as an executive function and prerogative while Parliament constrained executive excesses through the power of the purse). The Constitution assigns too many specific powers to initiate war and hostile activity to Congress for Pilon's interpretation to stand.

While his dissection of the power of Congress to "declare war" is accurate, Pilon doesn't go on to analyze the remainder of the declare war clause. The entire clause reads: "[Congress shall have power] To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;" My research of the meaning and judicial interpretation of the middle section, "grant letters of marque and reprisal" leads me to believe that this eighteenth-century language is roughly equivalent to the modern-day expression "grant authority to use military force."

While declaring war is, as Pinson says in his article, a judicial declaration for both international and domestic law to put the country in a state of "perfect war," letters of marque and reprisal were authorizations for more limited acts of hostility, or what we might term today "undeclared wars" or "military actions." In other words, I contend that Congress was given the power to initiate every kind of conflict the country could possibly enter into of its own accord. This obviously leaves the necessary room for the President, as Commander-in-Chief, to respond to sudden attacks or insurrection, as the Founding Fathers intended.

Having said all of this, I do think times have changed to the point that Pinson's reading of the Constitution's war powers might be the only viable reading possible. Congress is not populated with the statesmen it was in the late eighteenth and early nineteenth centuries, and the modern need to maintain a standing military serve to strengthen the President's hand when it comes to war powers. Nevertheless, I do think a more effective constraint needs to be given to Congress than just the power of the purse. While defunding a military operation sounds like an effective check in theory, it hardly seems to work in practice, whether that be because Congress doesn't have the political will to do so or because it is impractical to not supply U.S. troops once they have been deployed to a theatre of war makes little difference.

Some codification of the 1973 War Powers Act into the Constitution might be one solution to consider.

Judging the Living and the Dead

This article by Jonah Goldberg makes the same point I alluded to in my previous post: Re: For our own good. To wit:

And so here is the real absurdity of the "living Constitution" school. Where the Constitution is supposed to be inert, they want it alive and mutating. But where the Constitution was intended to be flexible, intellectual rigor mortis has set in.

This is not to imply that I agree with the neo-conservative view that the President is granted expansive war powers by the Constitution. Nevertheless, Goldberg's point stands: the bankrupt liberal idea that the Constitution is a "living document" cracks the very foundation the Founding Fathers built with the Constitution. Under this paradigm, the Constitution says what the elite in the courts and universities say it means, and the certainty that the rule of law brings dies the death of a thousand qualifications. First the impact is economic. Then the impact is lost liberties.

Re: Federalism

In Craig's post Federalism. He discusses the historical support for how the founding fathers expected Federalism to prevent the despotic advance of government. I'd like to bring that discussion into the present, if I may. Many 'hot-button' issues of today seem to derive their longevity not to mention their vitality from the idea that if 'our side' doesn't win, we'll have to allow (or prohibit depending on which side you support) something we feel is 'wrong'. Gay-marriage and abortion are two such issues. If you are part of the majority that supports a particular issue, you might fear or at least resent a minority wanting to change the status-quo. Federalism is a double-edged sword. It allows those States who want to do something different to do so without encroaching on all other States. The downside to this is that a State you don't live in might allow something which you feel is morally wrong. Look at Nevada and gambling. If you are morally opposed to gambling than you may feel that it is your duty to prevent citizens of some other states from being allowed to legal sinful behavior.

In getting away from Federalism, we lose the tools that allow people to live in places that they feel they have a say in how it is run and deciding what behavior is acceptable. Tolerance as a political principle.

systems of education, the poor laws, or the road laws, of the states

While we are on the topic of federal involvement in this country's welfare and medical coverage programs, I thought I would highlight an what Justice Joseph Story says about the general welfare clause of the U.S. Constitution. This is the clause which the Roosevelt Administration and, subsequently, the Supreme Court used to uphold the constitutionality of the Social Security program. In Section 959 of his Commentaries on the Constitution, Story writes:

The power to regulate manufactures, not having been confided to congress, they have no more right to act upon it, than they have to interfere with the systems of education, the poor laws, or the road laws, of the states. Congress is empowered to lay taxes for revenue, it is true; but there is no power to encourage, protect, or meddle with manufactures.

Federalism

Article I of the Constitution establishes the Congress of the United States and vests it with “All legislative Powers herein granted.” The powers of Congress are then listed in Section 8 of the First Article, explicitly setting forth what is in the congressional jurisdiction. The Founding Fathers intentionally created a government that was neither completely national nor completely federal, but an ambiguous mixture of both. Far from wanting to weaken the states or abolish them completely, the aim of the Constitution was to establish an “energetic government” (to use the words of Alexander Hamilton in The Federalist Papers) which would relieve the states of the burdens of international issues while strengthening their ability to govern their internal growth and economic development.

It was also generally believed by the political science of the eighteenth century that republican government could thrive only in small jurisdictions. In his book Spirit of Laws in 1748, Montesquieu wrote, “It is natural for a republic to have only a small territory, otherwise it cannot long subsist.” In arguing against the Constitution in the Virginia ratifying convention in 1788, Patrick Henry argued, “One government cannot reign over so extensive a country as this is without absolute despotism… I call for an example of a great extend of country, governed by one government, or Congress, call it what you will.” (The Americans: The National Experience, Daniel Boorstin, Chapter 46) The Framers of the Constitution believed, therefore, that the states would have to play a vital role in securing a republican form of government for the American people. Thomas Jefferson wrote in an 1800 letter to Gideon Granger:

Our country is too large to have all its affairs directed by a single government....The true theory of our Constitution is surely the wisest and best, that the States are independent as to everything within themselves, and united as to everything respecting foreign nations. Let the General Government be reduced to foreign concerns only...and our General Government may be reduced to a very simple organization, and a very inexpensive one; a few plain duties to be performed by a few servants. (Letter to Gideon Granger, August 13, 1800, Thomas Jefferson, Works 4:331.)

So the Constitution was meant to establish a system of federalism in which the Congress legislated according to its delegated powers, and the states were left free to legislate in all other areas reserved for them. However, many were still nervous about potential federal encroachment onto the prerogatives of the states, and they attacked the “necessary and proper” and “general welfare” clauses of Section 8 of the Article 1 of the Constitution as overly broad. James Madison insisted in Federalist 41 of The Federalist Papers that an expansive reading of Section 8 was not only unlikely, it was unnatural:

...shall the more doubtful and indefinite terms (i.e. the terms “general welfare” and “necessary and proper”) be retained in their full extent, and the clear and precise expressions (i.e. the specific Art.1, Section 8 delineations of power) be denied any significance whatsoever? For what purpose could the enumeration of particular powers be inserted if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity...

To further calm the concerns of the original thirteen states, the First Congress passed the Tenth Amendment to solidify the constitutional principle that the powers of Congress are delegated powers and all others are reserved to the States:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The states, then, were to play a central role in the American scheme of government, not only because eighteenth century Americans were overly paranoid over the loss of states’ sovereignty, but because experience had shown them that dividing up the power of government into smaller units would protect their freedom and liberty. Again, Thomas Jefferson:

...The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to. Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body.... (Letter from Thomas Jefferson to Joseph C. Cabell, Feb. 2, 1816, Works 6:543, p.421.)

The Civil War and the nationalizing pressures of the late nineteenth and twentieth centuries have forced the balance of power between the federal government and the states to maintain flexibility. Ever practical, Americans have not tied ourselves to one vision of federalism. We have adjusted the federal system to order our affairs and protect our liberties to fit with the times. The federal government has grown beyond its originally-delegated powers to encompass areas such as management of economic policy, drug-usage enforcement, welfare, social security, and medical insurance. These had become national problems beyond the ability of any single state to cope and demanded the energy and resources of the national government. Nevertheless, the states have always been understood to govern the everyday affairs of their people: education, code enforcement, land use, contracts, maintenance of law and order, and general health and welfare laws. These are areas in which the Constitution has not delegated authority to the Congress, so the states retain responsibility.

Federalism, then, has evolved not as an ideological bulwark to protect some antiquated notion of states' rights. Rather modern-day federalism is an integral part of our governing structure. It helps to diffuse power and encourage competition among governments, experimenting with solutions to diverse problems and compromises to societal debates.

Re: For our own good

Kelly's post on For our own good highlights the recent decision by federal Judge Taylor that declares the NSA's foreign surveillance program to be unconstitutional. I'd like to highlight a quote from this article from the Washington Post:

Judge Taylor's opinion is certainly long on throat-clearing sound bites. "There are no hereditary Kings in America and no powers not created by the Constitution," she thunders.

What caught my eye were the following words in Judge Taylor's opinion:
There are ... no powers not created by the Constitution.

What I'd like to know is if Judge Taylor really believes this or if she is just using it because it happens to support a preconcieved conclusion that she had drawn for this case. I'd like to believe the best about the consistency of her convictions, but as an appointee of President Carter and therefore, I presume, a jurist of a more liberal-leaning persuasion, I can't help but wonder how committed she is to strictly following this underlying principle of her ruling in this case.

If there are truly no powers that are not created by the Constitution, then Judge Taylor would be obliged to declare Social Security, Medicare, and Medicaid unconstitutioinal because these are not congressional powers delegated by Article 1, Section 8 of the Constitution. Somehow, I seriously doubt that the good judge would actually do this if presented the opportunity.

But, then, I have been wrong before....

For our own good

The administration has acknowledged eavesdropping on international calls and emails without a warrant. A Federal judge has declared the program unconstitutional. The administrations response? It's legal because we say so; we can prove we have the authority but we can't show you the proof without revealing State Secrets. Here is an excerpt from the article

On May 26, instead of responding to arguments attacking the legality of the NSA's eavesdropping program, the government filed for dismissal of the case. It cited the "U.S. military and state secrets privilege" and argued the government would not be able to defend the domestic spying program without disclosing classified information.


Or, more directly,
The government argued that the NSA program is well within the president's authority but said proving that would require revealing state secrets.

Are they suggesting that we have secret laws in this country? Let's look at how that would seem to be impossible not just from a theoretical but from a specific examination of the sources of power and how they are incompatible with the concept of a secret law.

Recently, I mentioned to Craig that the Executive branch derives its power from four places. 1) the U.S. Constitution, 2) Properly passed Congressional legislation, 3) Treaties approved with the Senate's advice and consent, and last and maybe least 4)Executive Orders.

Here is the rundown on those fonts of power. The Constitution is the foundation of our laws. It authorizes the branches of government and defines their roles. The granting of power is limited to very specific area like the Post Office and minting currency. The 10th amendment even specifically says, if it's not in here, you can't do it.

If the Constitution is the foundation, legislation is the rest of the house. The walls, floors, ceilings, and any bread and circuses desired. What would it take to pass a law and keep it secret. The entire membership of Congress, not to mention their staffers, would have to read it, and then put it up for a vote. Then the President has to sign it which would almost certainly involve staff at the White House. So the minimum would be 536 people aware of and keeping said law secret. Even if they were able to accomplish that dubious act, there are problems implementing it. If you were accused of breaking said secret law, how would you defend yourself in court?

Treaties would be the doors and windows of our governmental house. The portals through which we interact with the rest of the world. Submitting a treaty is a pretty formal process. It is hard to imagine concealing the debate of an international treaty especially considering the soverign country who is the other party in the treaty.

That leaves the Executive Order. It is law only to the degree that it directs the Executive branch on how to implement the prior three legislative anchors. I've heard of secret EO's but by their very nature they don't give new authority to the executive branch but define how the existing authority will be used.

I say to Congress, wake up from your stupor! You've been asleep at the wheel, staying the course, for far too long.

In the Land of the Blind

Why is it that the public is so willing to believe the Homeland Security department who is demonstrably lying to us? The majority of actions taken "For our own sake" do not actually make us safer. The administration is trying to make people feel safer even if they aren't. This story does a good job of describing the incompetence, hubris and arrogance of those who would take away our liberty for the sake of no real increase in safety. If I wanted to improve my safety, I would get off the highways, which take more lives annually in fatal accidents than multiple World Trade Centers.

The Gnostic Theory of Constitutional Interpretation

Anthony Esolen's writes at Mere Comments on the trend on liberal Western courts to be guided by "a new natural law":

Speaking in New Zealand last December, Chief Justice Beverly McLachlin of the Canadian Supreme Court described the criteria for discerning what she called “a new natural law.” Her statements evince that soft narcotic blurring of categories that people find so useful when they wish to arrogate an authority that is not properly their own. “The rule of law,” she says, “requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion.” Note that she has not identified constitutional mandates, or constitutional prohibitions, but constitutional norms, the meta-constitutional values that are supposed on certain nights to animate the actual written constitution, which would otherwise be a dead letter. These norms are, conveniently, unwritten, requiring a special sense, a knack, to discover not only what they are, but that they are at all.

Esolen goes on to call this "Judy Jetson Theory of International Jurisprudence:"

“But Daddy, don’t be such a square! I just have to wear that miniskirt! It’s all the rage on Pluto. It’s the living end!” And the daughters of Pluto say it’s all the rage on Earth. Unlike Justice McLachlin’s natural law, some things never change.

And this is the essence of the matter, isn't it? This notion that there are principles "in, with, and under" (to use a Lutheran phrase to describe the presence of Jesus Christ in the bread and wine of communion) the words of the constitutional text is peculiarly bizarre, especially within the context of the U.S. Constitution. How did we become saddled with this idea that a document which sets forth specific, enumerated powers in order to erect very definite boundaries for the federal government is somehow animated by subjective values which are not discernible by the great, uneducated masses?

It would be just as well to refer to this as the Gnostic Theory of Constitutional Interpretation: the saving ways of the law can only be known through secret knowledge , accessible only though the wisdom of the judiciary.

Border wars

It seems to me that there have been several situations in our history where a law went from universal acceptance to being divisive. The courts find themselves in the middle of the fray, as always. Since they cannot bring action on their own, you can even say they are our country's eternal peacemakers in these border wars. They have to be armed in and of themselves or else they have no power to enforce their decision and worse yet, would be plowed under or ignored during disputes.

Kelly, this last paragraph struck me, and I want to spend some time reflecting on it....

Issues like marriage and abortion were not litigated in our court system for the first 200 (or so) years of our Republic because, as you say, they were among several issues which became more divisive as America became more diverse and less governed by Judeo-Christian ethics of community and sacrifice. Even so, polls consistently show that a vast majority of Americans hold to traditional views of marriage, and a majority of Americans held the view that abortion should be illegal at the time of Roe v. Wade. This raises the question: Are the courts keeping the peace or disrupting the peace?

Allow me to elaborate: The wisdom of illegalizing abortion was, admittedly, being debated among the state legislatures during the 1950s and 1960s. Several states had liberalized their abortion laws by the time the Supreme Court took on the Roe case and issued its decision, ripping the debate out of the state legislatures, short-circuiting the democratic debate, and decreeing the state of things concerning abortion. Now, was this a necessary act to "keep the peace?" Or did the Court end any possibility of peace and compromise when it came to abortion laws?

I would submit the affects of its Roe ruling were the latter, ironically undermining the Court's authority, increasing the very danger you warn of: that the Court will be "plowed under or ignored during disputes".

I would hope that the federal courts will learn the lessons of Roe in the realm of marriage laws and not let a few disrupt the peace or the chance of finding peace through the democratic process. As messy as democracy is, it's still the best we've got.

The Principle Battle

In reading Craig's post about equality vs. fairness, I'd like to present an idea about principles, mainly the principles upon which our society is founded and their relationship with our current form of government. Throughout our country's history there have been less then twenty changes to the structure of our democracy, the Bill of Rights notwithstanding. To me, it is no mystery why so few amendments have been adopted. If you ask yourself, what belongs as an amendment and what does not, you first have to answer the question of what an amendment is. Some people seem to think that laws struck down by the Supreme Court can be resurrected by turning them into amendments. The many incarnations of the "Flag Burning" amendment come to mind. The Constitution of the United States of America is not just a list of laws, it is the framework in which laws are set, rules for how government is expected to work, and processes for interpreting conflicts.

A society of principles naturally wants to codify them. Principles are the pillars on which expectations of behaviour are set. They help us define what is right from what is wrong. What happens, though, when an issue arises that rides the boundary between two principles? Where two different camps both claim to be right. If the different camps beliefs are based on differing principles, they are setting up for a battle royal. We are taught the difference between right and wrong. If you know you are right, because you are defending a principle, you will take a dim view to being essentially declared to be wong which is what each side in in for when two principles are pitted against each other. How can one principle be more 'right' than another?

The case of Terri Schiavo seems to be a good example of what happens when a society has a dispute between principles; in that case being the principles of the sanctity of life and the sanctity of marriage. Terri's parents were advancing the argument that since she was still alive, that should take precedence over her husband's right to make the final decision. The contingent that thought life was the more important of the two principles fought tooth and nail at every level; a testament to the depth of their convictions. Another contingent thought that if the law said that the husband could make that decision, it was incredibly pretentious to think that some judge or legislature should have the final decision that intrudes on the very intimate relationship between a husband and wife.

So, what do we do when we find ourselves in a situation in which two principles face off? I contend that laws are where we define what is 'Right' and the Constitution is where we define what is 'Fair'. We are being fair when we legislate that murder is not right. What about when a law defines what is right, but cannot be applied fairly? Using a chart we can come up with combinations of these two principles, hopefully it will be instructive.

-----|1 2 3 4
Right|Y Y N N
Fair |Y N Y N

1) Both Right and Fair - no problem
2) Right but not Fair - blue laws? (Compton acts?)
3) Not Right but Fair - poll taxes? Jim Crowe?
4) Neither Right nor Fair - any suggestions?

It seems to me that there have been several situations in our history where a law went from universal acceptance to being divisive. The courts find themselves in the middle of the fray, as always. Since they cannot bring action on their own, you can even say they are our country's eternal peacemakers in these border wars. They have to be armed in and of themselves or else they have no power to enforce their decision and worse yet, would be plowed under or ignored during disputes.

So, have I made any sense? I'll have to continue this topic, it's too meaty to cover all at once.

Recovering the War Power

I ran across this paper, Recovering the War Power, on how far we have strayed from the Framers' original design for and distribution of the war power. In today's atmosphere of party loyalty and political expediency, Congress has abdicated many of its constitutional war powers to the presidency and, as a result, the ability of the United States to conduct successful wars and secure lasting peace has suffered.

It is a 58 page paper, so read it when you have some time to devote to it, but here the Conclusion to whet your appetite:

The second Iraq War is a reminder of how much we have ignored the Framers’ concerns about the war power, the constitutional text, early judicial decisions, and such misguided military conflicts as the Korean and Vietnam Wars. The Framers valued deliberation, a republican form of government, and popular control. From their study of history, the Framers had good reason to distrust executive wars. We have more than good reason. We have the Framers’ understanding about political principles plus the experience of presidential wars that have been tragically misconceived and executed. Various administrations, Republican and Democratic, have lied their way into wars and displayed incompetence about the conduct of war. Once again an administration, this time in Iraq, has opted for military force without understanding its limits or its consequences. There is no possibility for spreading democracy abroad if there is no respect and understanding for it in the United States.

Congressional debate on the Iraq Resolution of October 2002 has eerie parallels to the Gulf of Tonkin Resolution of August 1964. Both resolutions transferred to the President the sole decision-making authority to go to war and determine its scope and duration. Both resolutions were based on false information. Both occurred in the middle of an election year: a presidential election in 1964 and congressional elections in 2002. Both Presidents––a Democrat in 1964 and a Republican in 2002––used military operations in an effort to enhance their party’s electoral chances. In each case, lawmakers chose to trust in the President rather than in themselves. Senator Chuck Hagel (R-Neb.) regards the Vietnam War as a national tragedy “partly because members of Congress failed their country, remained silent and lacked the courage to challenge the administrations in power until it was too late.” How many times does it take to learn the same lesson?

Equality vs. Fairness

America was founded on principles of equality. The Declaration of Independence asserts, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Of course, any American and probably most of the world knows this, so why do I bring it up here? Because I wonder if we hear the words and parrot them back to one another without truly understanding what they mean. I think they have become an elegant sound-byte for us, rather than words that shape our worldview.

These days we are all about "fairness," not equality. When we complain that it's "not fair," we are really worried about how to tear someone else down, rather than seeking ways to build ourselves up. Witness:

• "it's not fair" that bad things happen to me and not to others
• misery loves company
• so-and-so "gets all the breaks"
• well, why shouldn't Bill Gates pay higher taxes, after all he can afford it!
  

We are informed by our notions of what is fair, not by the words of the Declaration of Independence. We want to play God and take from those who have to those we think, for whatever reason, deserve it (usually ourselves). Equality, the kind written into the Declaration and Constitution, is about the dignity of persons. Equality, according to the nation's Founders, is about setting people up to provide for themselves, rewarding people when they do succeed and helping them out when they fall. Fairness is about Socialist Utopian Dreams, not a fundamental respect for the human person.

And fairness, as we demand it today, was a foreign concept to God's people throughout biblical times. Concerns of justice, mercy, and love pervade the scriptural witness, but there is nothing of this kind of fairness. And no wonder! Our ideas of fairness are little more than adolescent fits about the way the world is. We want to judge, taking that decision away from the Sovereign Creator of the Universe. We demand free choice, and then we demand to be free of any consequences which are naturally tied to that choice. Original sin in the Garden of Eden all over again!

It is this fundamental confusion of fairness with equality and, more broadly and more sinister, a confusion between what is fair with what is right, that has led to the twentieth-century drifting from the ideals of America's founding and caused many of the present-day issues with which we struggle. It is an unraveling of some of this confusion that we hope to accomplish here on this blog. Guided by the overarching thesis of The Governance Imperative, Kelly and I seek to discuss and analyze questions of politics, constitutionalism, and general issues -- both historical and present-day -- through the lens of this "governance paradigm." The nature of the tension between what is right vs. what is fair is rooted in areas like epistemology, philosophy, and religion, so the occasional foray into these areas should not come as a shock or a surprise.

This is an open conversation, so jump in with your opinions or feedback through the Comments section.