Balanced Government: the one, the few, and the many

Part of the purpose of this blog is to occasionally look at the foundational principles upon which our constitutional government is based. This essay looks at the principle of the one, the few, and the many and how their representation in the government leads to balanced government.

Contemplations on government in the Western tradition go as far back as Greek philosopher Aristotle. In his discourse On Politics, government for Aristotle is for the well-being of the community and the good-life of its citizens. One of Aristotle's first exercises in identifying the principles of a well-ordered community is to understand the various interests in any community: the one, the few and the many. In Book 3, Chapter VII, Aristotle writes:

Having determined these points, we have next to consider how many forms of government there are, and what they are; and in the first place what are the true forms, for when they are determined the perversions of them will at once be apparent. The words constitution and government have the same meaning, and the government, which is the supreme authority in states, must be in the hands of one, or of a few, or of the many. The true forms of government, therefore, are those in which the one, or the few, or the many, govern with a view to the common interest; but governments which rule with a view to the private interest, whether of the one or of the few, or of the many, are perversions. For the members of a state, if they are truly citizens, ought to participate in its advantages. Of forms of government in which one rules, we call that which regards the common interests, kingship or royalty; that in which more than one, but not many, rule, aristocracy; and it is so called, either because the rulers are the best men, or because they have at heart the best interests of the state and of the citizens. But when the citizens at large administer the state for the common interest, the government is called by the generic name- a constitution. And there is a reason for this use of language. One man or a few may excel in virtue; but as the number increases it becomes more difficult for them to attain perfection in every kind of virtue, though they may in military virtue, for this is found in the masses. Hence in a constitutional government the fighting-men have the supreme power, and those who possess arms are the citizens.

Of the above-mentioned forms, the perversions are as follows: of royalty, tyranny; of aristocracy, oligarchy; of constitutional government, democracy. For tyranny is a kind of monarchy which has in view the interest of the monarch only; oligarchy has in view the interest of the wealthy; democracy, of the needy: none of them the common good of all.

In order to give a society the best chance of stability and peace, Aristotle recommends that the "poor majority" (the many) and the "rich minority" (the few) be given roughly equal amounts of power in the government. Besides the fact that the poor and middle class are more in numbers, the many, collectively in assembly, says Aristotle, are better suited for holding magistrates accountable:

That inferior persons should have authority in greater matters than the good would appear to be a strange thing, yet the election and calling to account of the magistrates is the greatest of all. And these, as I was saying, are functions which in some states are assigned to the people, for the assembly is supreme in all such matters. Yet persons of any age, and having but a small property qualification, sit in the assembly and deliberate and judge, although for the great officers of state, such as treasurers and generals, a high qualification is required. This difficulty may be solved in the same manner as the preceding, and the present practice of democracies may be really defensible. For the power does not reside in the dicast, or senator, or ecclesiast, but in the court, and the senate, and the assembly, of which individual senators, or ecclesiasts, or dicasts, are only parts or members. And for this reason the many may claim to have a higher authority than the few; for the people, and the senate, and the courts consist of many persons, and their property collectively is greater than the property of one or of a few individuals holding great offices. [Book 3, Part XI]

The few have an interest in having representation in the government in order to protect their property and business interests. The segment of society which generates the bulk of the economic activity must have a say in the government of the state. Aristotle astutely observes that constitutions are generally changed or disposed by a large, dissatisfied faction, so preservation of a constitution is generally best accomplished through moderation, education and inclusiveness. [1]

All men have a claim in a certain sense, as I have already admitted, but all have not an absolute claim. The rich claim because they have a greater share in the land, and land is the common element of the state; also they are generally more trustworthy in contracts. The free claim under the same tide as the noble; for they are nearly akin. For the noble are citizens in a truer sense than the ignoble, and good birth is always valued in a man's own home and country. Another reason is, that those who are sprung from better ancestors are likely to be better men, for nobility is excellence of race. Virtue, too, may be truly said to have a claim, for justice has been acknowledged by us to be a social virtue, and it implies all others. [Book 3, Part XIII]

These principles were fully known by the Founding Fathers and were built into the U.S. Constitution, and John Adams, the nation's second president and an ardent philosopher-thinker, picks up where Aristotle left off. He writes in his tome which defends the Constitution, In Defence of the Constitutions of the United States:

The generation and corruption of governments, which may, in other words, be called the progress and course of human passions in society, are subjects which have engaged the attention of the greatest writers; and whether the essays they have left us were copied from history, or wrought out of their own conjectures and reasonings, they are very much to our purpose, to show the utility and necessity of different orders of men, and of an equilibrium of powers and privileges. They demonstrate the corruptibility of every species of simple government, by which I mean a power without a check, whether in one, a few, or many.

The Founders built upon the concept of the one, the few, and the many that had evolved in Western political theory and had been applied specifically to the governing institutions that had evolved in Great Britain. The one was embodied by the monarch. The few were seated in the House of Lords. And the many were represented in the House of Commons. Each segment of society was present in the government of the British nation, even if not all provinces of that vast empire were so represented.

The writers of the Constitution added further layers of checks and balances to the U.S. system of governance. The president, the one, represents the interests of society at large and has, as Aristotle describes, the royal powers of war. However, these powers of war are checked by the requirement of congressional authorization of any war in which the United States enters.

The Senate, the few, represents the interests of the States and, even more so today since the passage of the Seventeenth Amendment, the interests of the rich minority (to use Aristotle's phrase). The Senate acts as a buffer to the passions of the people through extended debate and the power of individual senators provides insurances that minority interests will at least have a voice. This body also has a say in the the composition of the executive branch through advice and consent, ensuring the few (the States and the wealthy) are adequately confident in the day-to-day administration of the country. However, the Senate must act with the House to pass legislation, ensuring that the rich will not be able to trample the rights of the poor majority.

The House of Representatives, the many, represents the masses of society, ensuring their interests are given voice in the formulation of policy. The constitutional requirement that appropriation bills originate in the House gives the many the power of the purse. However, the Senate must give its approval to all spending measures, ensuring the many will not raid or trample on the property of the wealthy few. And to round out the checks and balances, the presidential veto power means that the House and Senate must act in cooperation with the president to ensure the interests of society at large are considered.

So the one, the few, and the many working together and, indeed, against each other to ensure the proper functioning of the government for the good of all society. Nevertheless, the constitutional design is only as strong as our adherence and dedication to its principles.

[1]SparkNotes summary of Aristotle's On Politics

America in Decline?

I like to listen to podcasts of The Diane Rehm Show every now and then. It provides a calmer, more detailed analysis than one can generally glean from Cable News shows.

This week I was listening to a podcast of one of last week's shows - "America in Decline?" Diane Rehm started off with a story that one of the country's professional organizations of engineers gave America's infrastructure the grade of "C" 20 years ago. A recent analysis by the same group updated America's infrastructure grade to "D", warning that certain parts of our infrastructure were in such disrepair that they were in imminent danger of collapse. It would take $2.2 trillion (with a "t") to bring our infrastructure up to date.

Rehm used this as a springboard to ask her guests the broader question - "Is America in decline and, if so, what do we need to be doing as a society to turn things around?" The concern was entirely focused on infrastructure - the flight control system, roads and bridges in the Northeast (especially older ones built in the 19th century), our relatively slow and spotty mobile networks, our clogged sea ports, and the declining capacity of our power grid and refining capabilities. The argument made by the guests was that American society is good at reinventing itself when it comes to business and local issues, but when it comes to large-scale systems that require national / federal coordination, it fails miserably because of our "antiquated political institutions" (read Congress).

This continues a theme among left-leaning folk that I that, frankly, baffles me. The story they are wanting to promulgate seems to be that the federal government coordinated national responses to truly national problems well through year 19XX (e.g., Eisenhower's National Highway System, Sputnik, and Arpanet research that led to the Internet). Then Corporatism, Oligarch-ism, Elitism, or some other -ism took hold 25-30 years ago, broke the consensus over the proper role of the federal government, and the U.S. has progressively developed more brittle and patch-worked responses to national issues ever since.

It seems to me, however, that this is too simple of a story. The United States is a truly federal system, and any problem that has been met with a federal response has generally been one that is defense in nature (e.g., the National Highway System and Sputnik were driven by Cold War concerns) or is so ripe that a true national consensus has formed to move Congress to action (e.g., Social Security). But these have been the exception, rather than the rule. Health care, the power grid, and the majority of the national roads and highways, among others, have always been patchwork systems, cobbled together by the states or by regional cooperative action. And it's not easy to patch or totally remake patchwork systems from the top down.

The liberals' story, I think, misses the point. They readily acknowledge that America's culture is still vibrant and the most inventive in the world. They point to the inventiveness and initiative of American citizens. But they bemoan the fact that the "antiquated" federal systems of governance were designed to stop things. They see this as a bad thing, but it is, in truth, what has been at the root of America's ability to prosper and grow for over 200 years. The traditional American view has been that government should do a few things well - defend its citizens and create a stable space within which they can chase liberty and happiness. Other than this, government should get out of the way. Let the citizens do the rest.

If any consensus has been broken over the past 25-30 years, it has been the liberal vision of an "efficient" national government. For 30 years after the 1930's, the New Deal Coalition ran the federal government more as a national government than a federal one, in which one-size-fits-all solutions were imposed upon the nation (the minimum wage law in American Somoa impacts the local population differently than in New York. Roe v. Wade is received differently in San Francisco than the Bible Belt.

The U.S. is a big, diverse Union. Rather than exposing the nature of our federal institutions as somehow problematic, perhaps the issues we are now faced with are testimony to the fact that the federal government is not the mechanism through which to deal with these types of problems.

Tony Blankley calls for the Repeal of the 17th Amendment

This blog, among others, has been calling for the repeal of the Seventeenth Amendment for years. The seed of a movement has to begin somewhere. Why not (partially) here? :-)

Hamilton on Civil liberty

"Civil liberty is only natural liberty, modified and secured by the sanctions of civil society. It is not a thing, in its own nature, precarious and dependent on human will and caprice."

--Alexander Hamilton
Notes: The Farmer Refuted [1775]

Competing visions of democracy in the wake of the recent Supreme Court decision re: campaign finance laws

The blog Comparative Constitutions has a a good piece comparing the different visions of democracy currently seen in Canada and the United States, particularly in the wake of U.S. Supreme Court decisions like Citizens United v. FEC, decided last week.

But if the book left any doubt that the United States Constitution and the Canadian Charter of Rights and Freedoms are anchored in divergent constitutional values, the recent judgment of the Supreme Court of the United States in Citizens United v. Federal Election Commission should confirm that the United States and Canada orient themselves toward different conceptions of democracy, at least with respect to private expenditures in political elections. Whereas Canada adheres to a model of egalitarianism, the United States appears to adhere to a model that may be best described as libertarian.

Whether this was a good decision or not, it seems the principle of the First Amendment was at least vindicated by this decision. Egalitarianism is nice is theory, but the problem is - who gets to decide on the rules? McCain-Feingold was Congress's attempt to answer that question, and it didn't take long for someone (Citizens United) to have their right of free expression trampled by the Government. No matter what I think of the danger of corporate money flooding elections, this could not have been right.

On the filibuster - Democrats suddenly find religion

It has recently become fashionable among Democrats and those sympathetic to their programs to decry the supermajority it takes to pass any legislation in the Senate. The new mantra seems to be that it is time to end the use of the filibuster, which requires a vote of 60 senators to stop debate on a particular question or motion before the chamber. The frustration over the legislative process's slow and prodding progress towards a health care reform bill is the straw that broke the camel's back.

This call does my heart good, as this blog has been calling for the reform of the filibuster since 2007. Representative of recent calls is that of reputable law professor Jack Balkin.

But I have to wonder where these principled objections to the filibuster were when the Democrats were filibustering President Bush's judicial nominees back in 2004 and 2005? Dr. Balkin seems to even praise the use of the filibuster by Democrats to stop the imperial designs of Evil Republicans[TM] in a May 2005 blog post:

Getting rid of the filibuster is a key device for achieving this goal. Although the current fight is over judicial nominations, if the Republicans are successful, there will probably be considerable pressure to eliminate the filibuster in other areas so that the Republicans can govern with a freer hand on important issues like taxes, tort reform, and Social Security. If this remaining tool of opposition can be eliminated, the Republicans can proceed to promote their policy goals with far less resistance.

...

In fact, eliminating the filibuster is about consolidating Presidential power-- the power of President Bush as leader of the Republican Party-- as much as it is about Republican power,...

The second goal behind ending the filibuster is to smooth the way for Bush to appoint very conservative judges to the U.S. Supreme Court as well as the lower federal courts. This is a method of constitutional change that Sanford Levinson and I have called "partisan entrenchment," in which a determined President stocks the life-tenured federal courts with ideological allies.

...

Put in terms of my colleague Bruce Ackerman's theory of constitutional change, movement Republicans seek a "constitutional moment" that will usher in a new regime of conservative constitutionalism that will shape and dominate constitutional thought for generations to come. Eliminating the judicial filibuster is a key step in making that dream a reality.

POSTSCRIPT:
Rick Pildes has a helpful history of the filibuster at Balkinization as well.

Resolving the War Powers conundrum through the courts?

John Hart Ely wrote a book called War and Responsibility, in which he analyzes the evolution of the balance of war powers between the President and Congress and, as this blog has, laments the general acceptance of executive-initiated war since 1950. Ely diligently analyzes multiple difficulties regarding war powers through examination of Congress's authorizations of the Vietnam War, and applies the lessons learned from that era to draft a set of proposals that would restore the balance of war powers toward expectations of congressional-initiated war.

The effectiveness of the so-called legislative veto is questioned by Ely (although he also argues for its constitutionality in the context of the War Powers Act), even as it is the backbone of this blog's own proposed war powers constitutional amendment. However, Ely does present a potentially more poignant and effective proposal: pass a revised War Powers Act that explicitly states the courts shall render judgments to suits questioning whether congressional authorization for a particular combat operation has been given. The point would not be to lasso the judiciary into setting United States foreign policy, but rather call it back to its original function of upholding the sanctity of constitutionally-prescribed processes.

The courts have increasingly dismissed cases brought by members of Congress or other parties as non-judiciable political questions. But in these cases, all the court is being asked to render is a ruling on process, not to provide a judgment on the true political question of what the foreign policies of the United States should be. The Constitution demands that Congress authorize the wars that the United States enters into, and Congress either authorizes a war through the constitutionally-proscribed legislative process or not. It is not asking too much of the judiciary to hold the President's feet to the fire and uphold the demands of the Constitution.