Ungovernable Nation?

Frank Pasquale writes in Law blog Balkinization on The Tragic Sense of Health Insurance Reform. Pasquale engages in a level-headed yet anguished look at both the potential good and the potential problems / challenges that are seeded in the health care reform bill just voted out of debate by the Senate last night.

Pasquale's last paragraph is worth quoting in full, which summarizes well the more in-depth insight contained in the rest of the article:

By passing this reform bill, Democrats will jettison whatever "populist" credentials they once had, opting instead for an early-twentieth-century "progressive" vision of technocratic alliance between corporate and government experts. However many disastrous missteps the FIRE industries make, this is the only arrangement that the media will credit as responsible governance. We'll commence an endless argument (read: notice and comment rulemaking and subsequent administrative adjudications) over what constitutes an adequate baseline of coverage, what is the fair share of revenue for middlemen like insurers, and what regulatory infrastructure can best vindicate the entitlements (and impose the burdens) specified by the bill. But the fundamental victory of reform--the national commitment that no one should have to choose between death or bankruptcy when confronted with a serious illness--will also endure. The tragic paradox is that the Democrats can only achieve this great cultural and ideological victory by becoming identified with the very interests that only they are willing to confront.

While this is, I think, the best bill one could hope (if one is so inclined) that Congress could produce in this day and time (and as good of one as any Congress in the last 100 years could have produced - probably better because of all we have learned through experience with our current insurance-based system), the fact that we are having this debate (idealism vs. realism in government's accomplishing public policy aims) is telling of something more fundamentally broken.

Pasquale makes passing reference in his article of America as "an increasingly ungovernable nation." Given the premise, I don't think that this is a fair characterization of the people or the underlying constitutional system of the United States. As the only military and economic superpower in the world, we have done, and are still doing, enough things right along the way. Rather, what some have termed "ungovernable" is an observation on the overreaching omnipresence of the modern-day federal government.

Americans have been through too much history and are too enamored with natural rights to ever countenance a scheme of direct socialist governance. We are dedicated to the fundamental soundness of the free enterprise system. However, we realize that there are holes in which the free market, left unregulated, do not work for the common good in areas where such is indispensable. Namely, in the self-same areas as called out by Pasquale's reference to "FIRE industries": finance, insurance, and real estate. Of course, Pasquale's point is to add the health care industry to this pot.

So, one of the great experiments in American governance has been an attempt to have government (mostly the federal government) step in to this breech and either regulate these industries or work in collaboration with them to bring about the results needed by society as a whole. One problem (if not the problem) is that this has been done divorced of constitutional principles. In a system set up to honor and promote the energies and risk-taking of the individual (the original concept of public education was to support this bias), coordination through government of massive industries and segments of our society's economic activity can at best be only a Lernaean Hydra, remedies applied to a body that is naturally resistant to such foreign substances.

If the goal of society is to implement the policies most favorable to the common good, then twenty-first century China is an excellent case study. When the ruling Communist Party oligarchs decide that the country needs to go in a particular direction, e.g., invest in solar power technologies and infrastructure, then it gets done. But such policies are implemented with the common good in mind (as defined by the ruling elite) and not the rights of individual citizens. Such is the trade off. But the question must be posed: What good is a society that does not pursue justice and rule of law for its citizens? Even Plato concedes that the philosopher-king is who is because he is just.

Obviously, the Chinese example is the opposite extreme of what we see in American principles of governance, but that is the point. The American Constitution is dedicated to, first, individual rights and freedom and, second, limited, constrained government. In too many ways, the twentieth and twenty-first century American government has broken loose of its constitutional constraints, and it is this, more than any other factor, that has created the conditions for the current debate. If we are ungovernable, it is only because the United States were (yes, subject / verb agreement is correct in the sense I mean to here employ) not set up to be governed by an omnipresent government coordinating the various segments of our complex, energetic society.

That American businesses and markets do not in many ways act for the common good is here readily acknowledged. But the remedy for this shortcoming is not more and bigger government. Rather, the remedy is to be found in the return to the principles held by the Founders and Western political tradition: personal responsibility and one's sense of duty to neighbor and fellow man, rooted in the justice and watching eye of Providence. It is fashionable in this day and time to be suspicious of the civil religion. Nevertheless, for 200 years it performed the service of knitting Americans together to provide for the common good out of love. That it is no loner given space to do so and that our form of government can not do so is the true present crisis and what, if anything, makes us "an increasingly ungovernable nation."