On Paradoxes: freedom that leads to bondage

If there is one thing that is sure about Western society, and American culture in particular as personified by the worst of Hollywood caricatures, it is that it is full of paradoxes. Chesterton pointed out a number of these that have only blossomed into full-orbed mind-benders since his day. To sample from the endless supply:

• Despite our conventional wisdom, man is the homemaker and woman is the ruler of the home, even if she is not its titular head.


• The modern matyr is discounted because their supposed sacrifices for their cause are nothing more than mere inconvenience that drunks take upon themselves for fun.


• Nothing is allowed to remain in secrecy except for those things that are too obvious to be named and those things that really are too important to bear telling.


• We look to our doctor for which well to pull water, rather than simply for the effects of drinking water to begin with.

I could go on and on, for Chesterton's essays in All Things Considered are treasure troves of insight and whit. But for this day, I want to look at a more recent paradox that has started to form on the dark horizon, one more recent (at least in its more malevolent form) than Mr. Chesterton's day. Namely, that our worship of human rights and freedom leads to debased and dehumanized bondage.

The Supreme Court yesterday in its case United States v. Stevens overturned a ten year old congressional statute that outlawed videos depicting animal cruelty. This continues a general trajectory that is at least fifty years old to analyze the morality (or, to use the terminology of our modern Republic, constitutionality) of a thing based on the most extreme case imaginable (which is usually in a different category of case anyway). Whether it really would ever happen that hunting videos would be prosecuted in Washington, D.C., where hunting is illegal, I do not have the foggiest of notions. To even ponder the scenario in the context of this case shows how far we've drifted from the vision of federalism, localism, and juries employed by the Founding Fathers. But I do have a clear notion that many pit bull and cock-fighting rings suddenly have new streams of legal revenue opened to them by virtue of this ruling.

In all our concern over whether the government ought to be able to tell someone whether they can record this or do that, we have lost all ability to know whether this or that should even be done in the first place. We protect the right of the pornographer to distribute his videos without even thinking of the dehumanization and objectification of the women he used to make the video. We concede control over to a woman to the point where a baby in the womb is not a human, but a fetus or, more sinister, a mistake. We have freed people married to each other from the "contract" of marriage in the name of privacy and they proceed to privately rip apart the lives of their children, leaving the public to help the kids pick up the pieces to their lives.

The seeds of analysis of this paradox are picked up in this excellent article by Weekend Fisher: The missing superego: removing religion from the public square. She writes:

So what happens when cultural expectations for ethical behavior are largely removed? What happens when a number of leading voices say that the ideas of "right" and "wrong" are meaningless or even destructive? What happens when prevailing voices say that morality is solely a private matter? In terms of our inner struggles, it means that the person can no longer enlist the help of the culture in taming his lower instincts. It means that the person develops a less-controlled animal side than would have developed otherwise. It leads to a stunted conscience.

The part of us that makes us communal or relational creatures - the superego, to use the Freudian term employed by Weekend Fisher - does not have the boundaries once erected by society, so we easily wander off into areas that are not safe for us. All men and women are slaves to something - jealousy, greed, passion, righteousness, demons, God. It is not an accident that we call a dastardly thing that disturbs us (even when we are not quite sure of the source of the disturbance) everything except what it truly is - wrong. In our commitment to be free, we do not recognize the shackles in which freedom binds us. Nor the binders that blind us.

For centuries, mankind struggled to overcome the license of tyranny that kings and emperors and governments claimed in order to wield arbitrary power over people. That's why the American Revolution was fought and why the Bill of Rights added to the Constitution. But never knowing when to stop, we have exchanged the license of tyranny for the tyranny of license. The sin of rulers in the distant past was their arbitrary application of power. At least they moved with purpose. In the name of freedom from control and power, we wander about aimlessly, content to have power (which abhors a vacuum afterall) applied to us arbitrarily.

Price of peace and union

"Just as the price of peace and union in 1789 was a bill of rights against the center, so the price of peace and (re)union in 1866 was a bill of rights against the periphery."
--Akhil Reed Amar, Bill of Rights

Proposed Amendment: Presidential Question Time

There is an interesting idea at goldwaterinstitute.org to import the Prime Minister Question Time from Britain and adapt it to the federal and state governments. Apparently, a proposed state constitutional amendment is being considered in Arizona to do just that for the Arizona state government.

I like this idea for Congress and the president as well, as it would at least move the politicians past their part-line talking points and pithy sound bites. I applaud President Obama for the bipartisan health care summit he held late last month in an attempt to seek ideas from Republicans on health care reform. Many in the media thought it nothing more than a show on everyone's part, but I thought some very useful and insightful question and dialogue came out of it. If we had more of that sort of give-and-take, I would venture to guess that the walls of partisanship and group-think would start to weaken.

Here is a version of the proposed Arizona amendment adapted for the federal Constitution:

On request from the Congress, the president shall appear once every two weeks on the floor of Congress to receive and respond to questions from the members of Congress during periods of regular legislative session. The president shall alternate chambers, appearing on the Senate floor to receive questions from members of the Senate, then appearing two weeks later on the House of Representatives floor to receive questions from the members of the House of Representatives. Each appearance shall be for a minimum of thirty minutes and a maximum of one hour, and the majority and minority party of that chamber of the legislature each shall receive one-half of the question time.

Group-think coming to the Senate?

David Brooks has a helpful article in yesterday's New York Times that explains why getting rid of the filibuster is such a bad idea and why turning the Senate into a smaller version of the House of Representatives will not serve anyone well in the long run. The Democrats need to tred very carefully with the process of how they work to pass the health care reform legislation. The means are certainly not justified by the ends, and I promise the Republicans will be back in power one day. And they will take the novel approaches the Democrats develop and use today and perfect them into the new modus operandi.

In the United States, leaders in the House of Representatives have done an effective job in getting their members to think in group, not person-to-person, terms. Members usually vote as party blocs. Individuals have very little power. That’s why representatives are often subtle and smart as individuals, but crude and partisan as a collective. The social psychology of the House is a clan psychology, not an interpersonal psychology.

The Senate, on the other hand, has historically been home to more person-to-person thinking. This is because the Senate is smaller and because of Senate rules. Until recently, the Senate leaders couldn’t just ram things through on party-line votes. Because a simple majority did not rule, and because one senator had the ability to bring the whole body to a halt, senators had an incentive, every day, to develop alliances and relationships with people in the other party.

For decades, individual senators have resisted their leaders’ attempts to run the Senate like the House and destroy these relationships and these humane customs. A few years ago, when Republican leaders tried to pass judicial nominations on party-line votes, rank-and-file members like Barack Obama, Joe Biden and Hillary Clinton spoke out forcefully against rule by simple majority.

But power trumps principle. In nearly every arena of political life, group relationships have replaced person-to-person relationships. The tempo of the Senate is now set by partisan lunches every Tuesday, whereas the body almost never meets for conversation as a whole. The Senate is now in the process of using reconciliation — rule by simple majority — to try to pass health care.

Reconciliation has been used with increasing frequency. That was bad enough. But at least for the Bush tax cuts or the prescription drug bill, there was significant bipartisan support. Now we have pure reconciliation mixed with pure partisanship.

New paper by Jack Balkin: Commerce

Jack Balkin, host of the Balkinization blog, has a new paper that takes a look at the so-called "interaction theory" of the commerce clause. This is a deeper dive and analysis of a theory of interpretation I first ran across from Akhil Reed Amar.

The connection between evil acts of a country and the responsibilities of its leaders

Revered computer scientist Donald Knuth has a page on "Infrequently Asked Questions". (http://www-cs-faculty.stanford.edu/~uno/iaq.html) and questions #4 and #5 do a good job of bringing up the issue of the moral responsibility a country's leaders have to its citizens.

I don't have any answers to his questions but would to avoid discussing them can't help but to implicitly spread the guilt around among the willfully silent.

It's a question for the ages, what does a society do when its leadership commits hubris? 

The option of nullification

This is a very good article by libertarian constitutional scholar, Jon Roland, on the serious option of nullification available to state legislatures.

In law “nullification” is not repeal or rescission of statutes or executive or judicial actions. It is the result of a sustained, widespread refusal to cooperate with them, until those attempting to enforce the actions are confronted with the unpalatable choice of either backing down or resorting to murderous brutality.

To say federal laws are always supreme just because Congress passes them makes a mockery of the principles of federalism that have always guided the governance of this Union, whatever the flavor of federalism of the day. We need to build some structural checks and balances into the state / federal relationship to reinforce federalism. Jon's proposed amendment to the Texas and other state constitutions seems to me to be a very good idea, serving as a possible institutionalized relief for the pressure that builds up against instances federal over-reach.

1. Commission. Establish a "Federal Action Review Commission" ─ a special commission with grand jury powers to meet continuously with rotating membership drawn from a pool of legal historians and constitutional scholars, appointed by the Governor, Attorney General, or Legislative Council; empowered to review the constitutionality of congressional legislation, or federal regulations or decisions, and if it finds such legislation, regulations, or decisions to be unconstitutional, to issue an edict, with the force of law, requiring that no state or local officials, employees, or contractors cooperate in the enforcement of it, and urging state citizens to refuse to cooperate. This Commission would be established by an amendment to the Texas Constitution.

2. Structure and procedure. The Commission shall consist of 23 members, who shall serve for staggered terms of 4-8 months, drawn at random from a pool of at least 230 constitutional scholars and legal historians, who shall meet for at least one hour once a week, with a quorum of 16, and a vote of 12 required to issue an edict, based on a presumption of nonauthority of federal officials and agents and requiring strict proof of constitutionality from deductive logic and historical evidence. It shall be open to direct complaints of the unconstitutionality of federal actions from any citizen. It shall have the power to subpoena witnesses, and its deliberations shall be secret, except that it may disclose anything in its presentments. It may authorize criminal prosecution by issuing an indictment to any person, not necessarily a lawyer, upon a finding that the court cited has jurisdiction and that evidence of guilt is sufficient for trial.

3. Penalties. State and local officials, employees, and contractors shall be duly notified in writing of such edicts within ten days and shall have twenty days to comply or be subject to termination after one written warning and a second failure to refuse to cooperate with federal officials or agents.

4. Funding. Establish a state fund to pay for legal and financial support of state citizens and officials who refuse to cooperate with unconstitutional federal statutes, regulations, or decisions, with the intention to obtain judicial decisions that support the unconstitutionality of the federal actions.

Interest against interest

"In the next place, there can scarcely be any other adequate security against encroachments upon the constitutional rights and liberties of the people. Algernon Sidney has said with great force, that the legislative power is always arbitrary, and not to be trusted in the hands of any, who are not bound to obey the laws they make. But it is not less true, that it has a constant tendency to overleap its proper boundaries, from passion, from ambition, from inadvertence, from the prevalence of faction, or from the overwhelming influence of private interests. Under such circumstances, the only effectual barrier against oppression, accidental or intentional, is to separate its operations, to balance interest against interest, ambition against ambition, the combinations and spirit of dominion of one body against the like combinations and spirit of another."
--Joseph Story, Commentaries on the Constitution, § 557

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.

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."

Disproving The Anthropogenic Global Warming (AGW) Problem

ADMINISTRATOR'S NOTE: This post was co-written by Craig and Kelly in discussion and brainstorming. These are open speculations on the topic of climate change and are not meant to offer any definitive conclusions. Our interest here is only in trying to get past the current strawmen blocking meaningful advancement of dialogue from both sides, and to offer possible constructions to assist the way forward. Part of the imperative of governance is how our collective social structure (the State) reflects how we handle disagreement. The flip side is how government is supposed to participate in debates of this nature, no pun intended.

Disproving The Anthropogenic Global Warming (AGW) Problem

After reading through this article and comments, it seems that the author’s stated purpose of “disproving” AGW is a bit ambitious for what he is able to accomplish. Nevertheless, he does successfully highlight the fact that there is a lot of disagreement. The facts do not support the AGW theory nearly as definitively as its supporters claim.

We see a disconnect in the debate on several fronts. First, is the global climate warming? Second, is global warming going to lead to devastating results? Third, is global warming caused by human activity?

If the first two are true, it doesn’t matter whether the third is or not. Somehow the debate keeps centering on wither humans are the cause instead of whether the climate is actually warming. We have some evidence of a warming trend during the 20th century but even that leads to quibbling over whether the trend will reverse itself naturally, whether it is just another natural cycle. The merits of investigating cost-effective remedies are still present regardless of human involvement - the type and mix of remedies change only if humans are significant contributors, but not the need for remedies.

Humans have a poor record of leadership in this area. On one side you have those who are certain (but wrong) and advocate outrageous action, e.g. Heaven’s Gate; and on the other you have those who advocate no action, which is reported to happen with European countries' unwillingness to believe in Hitler’s death camps, or more recently with reports of genocide in Africa.

In Texas you have to have proof of insurance before being allowed to drive on public roads. Does this mean that the State thinks you are going to have a wreck with 100% certainty? Of course not. The insurance is a small cost which mitigates the huge cost of damages from an accident. The probability of you making a claim contributes to the price of the policy. If you are a safe driver, your policy is less expensive.

As for the climate, let’s talk about what would be cheap insurance against a catastrophic claim. Is there something we can do that might have a much smaller cost compared against the worst case scenario. Do we have to believe in Anthropogenic Global Warming, or even a natural warming cycle? No. Good drivers seek protection from outside events as opposed to the State’s mandate which is to make sure bad drivers take responsibility for their actions. Both of which are at the core of conservative ideals.

Driver’s-Ed and defensive driving techniques can be considered as cheap forms of insurance. A low-cost way to reduce the risk. It is disappointing that instead of working on the cheap and easy solution, the debate has degenerated to arguing either that everyone needs $1,000,000 of comprehensive insurance, i.e. the more rabid GW alarmists, or adamantly declaring that we don’t need insurance at all, i.e. demagogues shouting that there is no absolute proof humans are causing climate change and thus should do nothing. If we want to be pragmatic about it, we should be agreeing that even if we can’t be sure whether we are the cause, we definitely don’t want to become part of the problem either. We could talk about cheap and defensive solutions like supporting green house-building techniques, reforestation, and sources of bio-fuel - which has a nation security aspect as we'd wane ourselves from dependence on tin-pot foreign dictators. At least such a discussion would be productive, unlike two sides trying to out-bloviate each other.

Seen this way, insurance is both a sign of personal responsibility – the state’s mandate – and a sign of conservatism, as in conserving the long-term viability of our planet's environment and declaring that you won’t need to rely on others to take care of you if the worst happened. Not only that, there is a national security aspect also, as we'd wane ourselves from dependence on tin-pot foreign dictators.

In the global warming debate, we should discuss the severity of the different scenarios and how much it would cost to mitigate them. We don’t have to believe in the worst case to discuss it. Insurance is about the transference of risk. You don’t believe you will necessarily total your car when you discuss a quote for comprehensive insurance; there are dozens of scenarios less severe for which you seek coverage. You want to know what the cost would be to recover or mitigate the damage. What insurance can we buy against climate change? Let’s talk about that.

Our Debt to Machiavelli

In reading Machiavelli's "Discourses on Livy" - chapter II, I found the following,

...because when there is in the same City (government) a Principality, an Aristocracy, and a Popular Government (Democracy), one watches the other.

This sounds suspiciously like our three branches and their checks and balances. In his study of human forms of government and his theory on how each form degenerates into the next, he covers much ground which hopefully wasn't unfamiliar to our founders.

My question is, why is Machiavelli not more widely read, and what evidence is there of his influence on the Founding of the United States of America? The obstacles toward forming a government of the people were rigorously debated during the Continental Congress (and the Constitutional Congress that followed). Were the lessons of Machiavelli ever credited to him or were they borrowed for the convenience of the general discussion?

Is Torture the Answer?

This is a response to the comment of Craig's in our discussion on Torture.

What is Torture?

Sleep deprivation can be a form of torture. It all depends of the definition. Usually its described by total sleep allowed per day and length of continuous sleep. Letting a prisoner sleep for 12 hours a day is meaningless if you wake them up every 15 minutes.

Maybe this needs another post but it is pointless to argue about the definition of torture if there is no agreement on its effectiveness.

Is Torture Ever Necessary?

Is torture effective? Yes. Be clear, by saying its effective all we're admitting is that an effect was achieved. Whether it was the desired effect, that is an entirely different matter. While torture may be effective, neither is it efficient, nor is it efficacious.

(Courtesy of Wikipedia)
The word effective is sometimes used in a quantitative way, "being very or not much effective". However it does not inform on the direction (positive or negative) and the comparison to a standard of the given effect. Efficacy, on the other hand, is the ability to produce a desired amount of the desired effect, or success in achieving a given goal. Contrary to efficiency, the focus of efficacy is the achievement as such, not the resources spent in achieving the desired effect. Therefore, what is effective is not necessarily efficacious, and what is efficacious is not necessarily efficient.

Health care reform and the general welfare clause, Part II

As the health care reform debate has raged on and bills have taken shape in the Senate and even passed the House, the so-called individual mandate has become a central part of most reform packages under consideration. This is a different twist from the angle under which I considered the constitutionality of health care reform in the article Health care reform and the general welfare clause, and, constitutionally, it must be a deal breaker.

It is a settled constitutional fact that Congress can spend federal tax revenues on any program that it feels advances the general welfare, whether the form of that spending takes the form of direct grants, tax credits, tax deductions, or subsidies is of little consequence constitutionally. If Congress wants to set up incentives to give people tax deductions for buying health insurance, for example, or send subsidies directly to people / families who make less than four times the federal poverty rate, then it is acting within its constitutional prerogative.

However, there is no constitutional power delegated to Congress allowing it to impose fines on people for not buying health care insurance. There is a big difference, philosophic and constitutional, between incentivizing people towards desired behaviors and punishing them for not following a prescribed mandate. Article 1, Section 8 and the Fourteenth Amendment form the boundaries within which Congress may legislate, and outlawing a lack of health care insurance is simply not within those boundaries.

This is undoubtedly a power of a State, but not a delegated power of the federal government.