On socialism

"The problem with socialism is that eventually you run out of other people's money."

--Margaret Thatcher

 

Amar's Bill of Rights: Our First Amendment - Expression

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We see the First Amendment of the Constitution as the bedrock of our rights, protecting our freedom of speech and religion. As we have analyzed already, the primary role that the Bill of Rights plays in constitutional jurisprudence today is the protection of minority rights against repressive majorities. But the Founding generation was not looking for the protection of minorities. They had just suffered at the hands of British imperialism and militarism, and they sought protection against repressive central government.

The structure of the First Amendment sounds in majoritarianism, localism and federalism. One need look no further than the language of the amendment to see evidence of this truth: "Congress shall make no law..." Amar elaborates:

The body that is restrained is no a hostile majority of people, but rather Congress; and the earlier two amendments remind us that congressional may in fact have "aristocratical" and self-interested views in opposition to views held by a majority of the people. (p. 21)

Because of Congress' distance from local constituencies and the large number of constituencies represented by each congressman, the general concern was that Congress would "be less likely to reflect majority will." The courts were not expected to be the main arbiters of First Amendment rights either. Rather elections and states were expected to fill that role, as evidenced in the successful rallying against the Alien and Sedition Acts and the elections of 1800 which turned control of Congress over to Jefferson’s Republican Party. 

Local juries also played a part in enforcing the freedoms of expression guaranteed by the First Amendment:

The common-law rule against “prior restraint” – courts could not enjoin a publisher from printing offensive material but could entertain civil and criminal prosecutions for libel and sedition afterward – had bite largely because of the structural differences between the two proceedings. The former could occur in equity courts, presided over by permanent government officials on the government payroll (chancellors), but the latter required the intervention of ordinary citizens (jurors) free to vote for the publisher without fear of reprisal. (p. 23)

Many publishers invoked the First Amendment at their jury trials for libel and sedition prosecutions under the Alien and Sedition Acts. The Federalists insisted that the right to free speech was not absolute, but in the English tradition, free speech rights grew up out of Parliament. In Article 1, Section 6 of the original Constitution, congressmen were shielded from various reprisals “for any Speech or Debate in either House.” Absolute freedom to speak one’s mind in the constitutionally-recognized legislature was a foundational principle in a society of parliamentary sovereignty. So in a society where the People were sovereign (America), why should the People as citizens not have absolute freedom to speak? No court ever declared the Alien and Sedition Acts unconstitutional, but several juries refused to find publishers guilty under the Acts because of the First Amendment. After the Federalists lost control of Congress in the elections of 1800, the Acts were allowed to expire, free-speech rights defended through the work, jealousies and vigilance of the People, rather than by the hand of government. 

The Civil War and Fourteenth Amendment shifted this bias toward the insulated federal judiciary as it is unpopular, minority speech that is prosecuted in the courts. Rather than trusting popular opinion and the sentiment of that body of local citizens, defendants seek the protection of speech from judges who are free from popular political pressures. We will look at the Fourteenth Amendment in more detail when we examine what Amar has to say about its provisions, but for now it is enough to say that the First Amendment’s protections of free speech and expression are incorporated against the States through the Fourteenth Amendment’s Due Process clause  (though incorporation really should be accomplished through the Privileges and Immunities clause, but again, we will discuss this in the appropriate place). 

This progression should not surprise us, but the focus on individual and minority rights bleach out the rich tapestry of the popular-sovereignty logic and the roles of elections, states and local juries in protecting and building up the freedoms we all enjoy under our First Amendment.

imported from Wordpress. Original post date 5/21/2010

Civil Religion in America

Every society needs some prevailing worldview that binds its conscience together and forms the starting point for its most important debates. Without this common frame of reference, a society simply cannot cohere. This is a good article by Robert Bellah on the role that Civil Religion in America.

The cross symbolizes something. Except when it doesn't.

This is an excellent op-ed by Stanley Fish. (h/t: Dr. Pursiful)

In the latest chapter of this odd project of saving religion by emptying it of its content, Justice Anthony Kennedy, writing for a plurality in Salazar v. Buono, ordered a district court to reconsider a ruling that Congress had impermissibly promoted religion by devising a plan designed to prevent the removal of a cross standing in the Mojave National Preserve. The cross had originally been erected in 1934 by the Veterans of Foreign Wars to commemorate American soldiers who had died in World War I. In 2002, Frank Buono, a retired Park Service employee, filed suit alleging a violation of the Establishment Clause and “sought an injunction requiring the government to remove the cross.
...
Notice what this paroxysm of patriotism had done: it has taken the Christianity out of the cross and turned it into an all-purpose means of marking secular achievements. (According to this reasoning the cross should mark the winning of championships in professional sports.) It is one of the ironies of the sequence of cases dealing with religious symbols on public land that those who argue for their lawful presence must first deny them the significance that provokes the desire to put them there in the first place.

It has become a formula: if you want to secure a role for religious symbols in the public sphere, you must de-religionize them, either by claiming for them a non-religious meaning as Kennedy does here, or, in the case of multiple symbols in a park or in front of a courthouse, by declaring that the fact of many of them means that no one of them is to be taken seriously; they don’t stand for anything sectarian; they stand for diversity. So you save the symbols by leeching the life out of them. The operation is successful, but the patient is dead.

Fish makes clear that he does not oppose accommodation of religious symbols in public life, but the reasoning we use to reach that accommodation matters:

My distaste for Kennedy’s opinion has nothing to do with its result. In general, and for the record, I have no problem with the state accommodating religious symbols and I am not bothered by the thought of a cross standing in a remote part of the Mojave desert even if the land it stands on is owned by the government. I do have a problem with reasoning that is patently dishonest and protests too much about its own motives and the motives of those it defends. But that is what the religion clause drives you to when in one of its clauses — the free exercise clause — it singles out religion for special positive treatment, and in the other clause — the Establishment Clause — it places a warning label (watch out for this stuff; it’s trouble) on religion. It’s no wonder that the justices who try to deal with this schizophrenia tie themselves in knots and produce opinions that are as unedifying as they are disingenuous.

I am a big fan of the work of the Baptist Joint Committee for Religious Liberty in its ongoing efforts to ensure common sense balance between free exercise or accommodation of all religions and government non-establishment or favoring of a particular religion. Its Executive Director Brent Walker has said it well:

As I have said, both of these clauses in the First Amendment ensure religious liberty, but in different ways. The Establishment Clause keeps government from indirectly hurting your religion by helping somebody else’s religion and Free Exercise keeps government from harming your religion directly. Even though these provisions are complementary, sometimes—when taken to their logical conclusion—they rub up against the other clause.

This tension between the two clauses is good. If one assiduously enforces the Establishment Clause and forgets about free exercise, an environment of hostility to religion can result. However, if one concentrates only on the Free Exercise Clause and forgets about no establishment, the logical outcome can be a theocracy or something close to it. In either case, religious liberty would be diminished.

In short, it is important that we understand that government should accommodate religion, without advancing it; protect religion, without privileging it; sometimes lift burdens on the exercise of religion without extending religion an impermissible benefit.

Although U.S. constitutional law has come up with elaborate typologies to help us sort through this dilemma (mandatory, permissible and impermissible exemptions), I like to employ a common sense exercise. Every time we say “no” to government activity to uphold the Establishment Clause, we should find a way to say “yes” to its Free Exercise counterpart. This allows us always to try to find a “win-win” solution.

As with anything else in life, it is balance and preserving the healthy tension that leads to the best possible outcome. This is, in the end, the essence of the Governance Imperative: struggling with what is moral in right within a pre-erected structure or framework of fairness.

Jesus did not give us a theory. He gave us a meal.

Editor's Note: This is the first post on this blog that is of a pointedly religious nature. It has probably not been hard for readers to discern that this author is informed in his worldview by his Christian faith, but this is the first overtly Christian post I have released in this space. While I do not want to see the focus of this blog changed, I would, perhaps, like to toy with expanding it a bit.

Religion plays an undeniable part in forming how we as humans approach societal problems. I occasionally write on topics that are directly theological, such as this one, and while our Constitution rightly demands a separation of church and state in the implementation of government laws and policies, it does not and can not call for a debate sterile of religious perspective. The best such a vacuum would produce would be all questions of morality resolved solely through the unforgiving lens of constitutionality alone, and there is nothing human in that.

Reading through N.T. Wright's book Evil and the Justice of God has been more than the consumption of Yet Another Book. It's been a journey of discovery, and I highly recommend it for every Christian who is looking for answers to the infamous Problem of Evil. Because you won't find answers here. At least not the ones you think you're looking for.

That sounds contradictory, I know. Let me explain.

Since the atrocious and evil terrorist attacks on 9/11/2001, I have noticed a significant increase in questions regarding the nature of evil and what God, if He exists at all, is doing about it. People like the New Atheists have used the existence of evil as one of the best arguments that God cannot exist. Others have not lost all hope for the existence of God, per se, but they do not see how God can be all-powerful if He is good. Otherwise, the argument goes, He would not allow evil to flourish and dominate.

Christians have responded with a number of rebuttals and theories, and many of these are quite satisfactory. At least as far as they go. For people looking for theoretical answers and philosophical insight, these might provide some entertaining rejoinders. The best of these (known to me) is not recent, however. You will find no better defense of Christianity in this field of inquiry than C.S. Lewis' The Problem of Pain.

Nevertheless, these sterile and, in some ways, inhuman theoretical defenses miss the point and leave people in real pain untouched, uncomforted, and, if possible, more miserable. Most of the pain I have felt in life has been because of childhood issues and events that were beyond the fault or control of my immediate family. A large portion of my early twenties was spent running away from who I was and searching for a way, anyway, to recreate myself after my own image of who I thought I should be. It was not until I met the woman who would become my wife that my journey of healing and reconciliation began. It wasn't until I found acceptance as who I was that I was able to come to grips with where I had been. It was only then that I stopped running and searching for an illusive shadow that could never have been. My wife saved me, and she continues to do so every day.

This is how theories miss the point. Pain is real, and it requires real people, real events, real interaction to come to grips with pain and deal with it. N.T. Wright gets this, and in his book Evil and the Justice of God, he shows that orthodox Christianity gets this as well. Wright starts the book by taking Western society to task for its inadequate and immature response to evil. Since the Enlightenment, we have tried to outrun evil through technological progress and the thing we call civilization. We have thought evil merely a lack of provisions and opportunity that could be solved with enough money, technology and stuff. Two world wars, repeated genocides, perpetual hunger among the world's lost billion, and the spectre of nuclear holocaust has snapped our illusions that evil is something we can conquer on our own. However, the response of postmodernism has been anemic at best. Acknowledging evil as a real and personal force, we now don't know what to do about it. So we do nothing.

Wright then surveys what the Old and New Testaments have to say about evil and God's response to it. Over a span of a thousand years, the Scriptures consistently acknowledge the presence of evil in the world, and they persistently insist on the goodness and omnipotence of God. Yahweh created the universe, so it is good. But it is also contaminated, and God is working through His people to set things right. And that's it. No defense of God. No theory as to why evil is here and why God, given who the Bible says He is, does not eradicate it.

Rather, we are given an insight into the breaking heart of God who is here with us, breaking into the world to advance His Kingdom. We meet a first-century Palestinian rabbi, Jesus of Nazareth, who lives for those around Him and is killed for His efforts. In His execution on the cross, we see all of the forces of evil in the world (personal, political, social, demonic) focus all their energies and do their worst to kill God. And they succeed!! But the extraordinary claim of the Scriptures is that God raised Jesus from death and made evil impotent. It has done its worst and failed. Now, through the power of the Spirit, followers of Christ are called to spread the work that Jesus started throughout the world, appropriating God's action for our time and place.

So what do we have for an answer to evil? A person. An event. Ourselves.

In the end, Wright does not wonder that the Church has not settled on a specific theory of atonement, of what Christ did for us on the cross. While each one of our theories offer a valuable insight into what occurred, none of them present the whole picture. Wright offers the answer to which all Christians should return and keep at the forefront of our faith and practice: "[W]hen Jesus himself wanted to explain to his disciples what his forthcoming death was all about, he didn't give them a theory, he gave them a meal."

Amar's Bill of Rights: the Founder's Second Amendment that became #27

Money, who has it, and who should get to spend it are pervasive questions that haunt every generation. From Jesus' warning that "you will always have the poor with you" (Matthew 26:11) to our Founding Fathers to today, society and government have always struggled to find the proper balance between preserving liberty and freedom and providing the proper level of coverage (e.g., of food, clothing, shelter) for the poor and dispossessed.

Congress controls the purse strings for the federal government, so, through the legislative process, it sets the priorities for the nation. This is a lot of power to provide one institution, especially if it is not representative of the People. The Founders provided for frequent elections in an attempt to ensure Congress was representative, but they also provided several constitutional mechanisms to guard against the agency problem. Sourcing the House and Senate from different societal constituencies was one way; the presidential veto was another; judicial review a third.

Madison presented an additional structural safe-guard to the First Congress in the form of the second of the twelve initial proposed amendments to the Constitution. Amar briefly considers the amendment in his book The Bill of Rights: Creation and Reconstruction, highlighting its place behind the amendment expanding congressional size as further proof that the original Bill of Rights was more concerned with preserving majority rights against oppressive central government than about protecting repressed and disenfranchised minorities.

Madison's second amendment sought to control the rules under which Congress could grant itself a pay raise: "Article the second.... No law, varying the compensation for services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened." Coupled with the emolument clause of Article 1, Section 6, this amendment sought to clearly assign responsibility and hold government officials accountable to the People through elections.

Madison's second amendment was only ratified by by six states in the 1790's; this is perhaps indicative of the very agency problem Madison was fighting - how could state legislatures pass this amendment without triggering demand within their own states for a similar amendment in their state's constitution? But this Rip Van Winkle amendment survived into the 1990's when it received the requisite three-fourths of States to become the Twenty-Seventh Amendment of our Constitution.

The one meaningful response to the BP oil spill

Thomas Friedman has a valid point in his latest article No Fooling Mother Nature.

There is only one meaningful response to the horrific oil spill in the Gulf of Mexico and that is for America to stop messing around when it comes to designing its energy and environmental future.

We do need to stop messing around, but I differ with him on exactly how we are currently messing around and what we need to do to stop messing around. He thinks more government regulation and taxation is the answer to change behavior and to push the markets toward green technology. Rather than Yet Another energy bill from Congress loaded with taxation, regulation, and tax breaks that skew the market, Congress should pass an energy bill that removes tax breaks for the oil industry and keeps only regulation that guards against large-scale disasters (rather than, for example, worrying about caribou in ANWR or fish in California).

We will eventually get off oil (we will run out or some other fuel source will become more economical), but without perverse government policies in place, the market can drive what technologies can be introduced and when. The past ten years should have proven definitively the absolute inability of government bureaucrats to competently orchestrate big systems with lots of moving parts.

 

Amar's Bill of Rights: the Founder's First Amendment

Before we venture into the Bill of Rights that is familiar to us, let us examine what Akhil Reed Amar has to say in his book The Bill of Rights: Creation and Reconstruction about the amendment that James Madison listed as first in the First Congress:

Article the first.... After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be regulated by Congress, that there shall be not less that one hundred Representatives, not less that one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, not more than one Representative for every fifty thousand persons.

This proposed amendment was passed by the Congress and proposed to the States, but it fell one state short of the requisite three-fourths needed to ratify it. We shall examine why in a moment, but its failure to be ratified means it is obscure to many in this day and age. Nevertheless, its prominence on the list of so many weighty amendments reveals the importance the Founding generation placed on erecting proper safeguards in the government structure to ensure the liberty and rights of society. While we are used to the federal government, especially the courts, championing and advancing the rights and freedoms of the people, the federal government was still unproven in 1787. Anti-Federalist fears were centered around the small size of the House of Representatives and the lack of a Bill of Rights that would explicitly remove certain areas from Congress' purview of legislation.

Probably the deepest Anti-Federalist objection to the Constitution was that the document took the skimming principle too far: Congress was too small, too rich, too "refined." Indeed, this structural concern underlay most of the Anti-Federalists' other arguments. Because the legislature was so small, the Anti-Federalists feared that only great men with reputations spanning wide geographic areas could secure election. [Amar 10-11]

So the Anti-Federalists fell squarely in line with the views of traditional replublicanism, classically expressed by Montesquieu:

It is natural for a republic to have only a small territory; otherwise it cannot long subsist. In an extensive republic there are men of large fortunes, and consequently of less moderation; there are trusts too considerable to be placed in any single subject; he has interests of his own; he soon begins to think that he may be happy and glorious, by oppressing his fellow-citizens; and that he may raise himself to grandeur on the ruins of his country.

In an extensive republic the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen; abuses have less extent, and, of course, are less protected. [Montesquieu, Spirit of Laws, Book 8, Ch. 16]

The Federalists knew that this was a legitimate concern, and Madison, Hamilton, and John Jay, famed authors of The Federalist Papers, devoted the first section of their work to this topic. Madison's Federalist No. 10 is today a great treatise on the implementation of a Republic over a great mass of land and people, but extensive republics were untried in the eighteenth century, and it was far from certain that the scheme as laid out in the new Constitution would work. So Madison sought a compromise with the Anti-Federalists and proposed his First Amendment that increased the size of the House from that prescribed in Article 1, Section 2 of the Constitution: "the Number of Representatives shall not exceed one for every thirty Thousand" constituents.

So if the proposed amendment would increase the size of the House and this was such a burning concern, why did the amendment fail to obtain ratification? According to Amar, several reasons present themselves:

• The amendment's mathematical formula made little sense and introduced too great of a complexity. The word "more" was strangely substituted for the word "less" in the last sentence of the amendment: "not more than one Representative for every fifty thousand persons." Unless the U.S. population rose from 8 to 10 million in the first decade, this provision would have proved inconsistent with the requirement preceding in the same clause, that there "not be less than two hundred Representatives".


• What the amendment gave in the short-run - a larger House - it took away in the longer run. The final clause established a maximum on the House's size, rather than a minimum. Whether Madison purposefully slipped in this language to enforce a maximum size, we can only speculate. His original wording did include a maximum size, but Congress had rejected that idea. Perhaps he saw an opportunity to reintroduce the maximum principle once he was on the conference committee for the twelve proposed amendments. After all, Madison was quite clear of his philosophy on the proper size of a legislative body in Federalist No. 10:
  

  
  It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects.
  



• Small state like Delaware (which ratified the ten amendments that did pass) might have been seeking to preserve the advantage a smaller House provided them. Since every state is guaranteed at least one Representative in the House, increasing the size of the House would have diluted the voting power of a small state.

Regardless, if Madison's First Amendment had become our First Amendment, it would be harder for us to miss the fact that the original Bill of Rights was more concerned with governmental structure than it was about individual and minority rights. If that had been the case, the Bill would begin and end (in the form of our Tenth Amendment) with articles unmistakeably added to deal with structural issues.

Amar's Bill of Rights

Akhil Reed Amar's book The Bill of Rights: Creation and Reconstruction is a fascinating walk, first, through the first ten amendments of the Constitution and, second, the Bill of Rights as recast through the prism of the 14th Amendment. Through this series of posts, I want to look at some of the perspectives Amar brings to each of the first ten amendments - first as the Founders would have expected each amendment to be interpreted after ratification in 1787 and, second, through their refinement by the Radical Republicans in 1866 through the 14th Amendment.

In our world in which the Bill of Rights is viewed as a bulwark of protection for minority rights against over-aggressive majorities, we have lost sight of the fact that the Founding generation was more concerned about protecting their liberties against an over-aggressive central government and standing army. Having just fought and won a Revolution against the British Empire because of the onerous policies and taxes passed by Parliament, the first twelve amendments proposed by James Madison in the First Congress were designed to shore up the structure of the federal government through strengthening the structures of federalism, localism, and majoritarian control of government.

This perspective was skewed by the experiences of slavery, the oppression that State governments practiced on their people in their defense of that sorry institution, and the stabilizing role that the Union Army played in preserving both liberty and union. We live under a Constitution that was nationalized by the Fourteenth Amendment, but we cannot understand what this means until we understand how the first ten amendments of the Constitution functioned before the Civil War.

Revisiting the 17th Amendment

This blog has been a proponent of repealing the 17th Amendment. Mostly this was due to a concern that the balance of power between the States and the Federal Government had shifted too far. But this proposal is more about the ends that we would hope to promote through the means of the amendment's repeal. That is, some mechanism needs to be devised and implemented to give the States direct representation and a systematic say in crafting federal legislation. This was the idea of the Founders' original mode of senatorial selection, and it is this sort of structural rebalancing that provides the only hope of restoring the concept of enumerated, delegated powers at the federal level. A structural fix would provide the flexibility of needed to enact federal responses to problems deemed truly federal, while giving the States a direct responsibility in this formulation.

However, Jon Roland brings up a great point in his article:

Proponents for such repeal argue for the original intent of the election of U.S. senators by state legislatures that it would better serve to protect the reserved powers of the states from encroachment by the central government, and that state legislators would bring more expertise to the selection process.

Unfortunately, that never worked as it was designed. What actually happened was that special interests, such as banking, railroads, oil, and steel, found that they could buy tU.S. senators for a lot less through state legislators than through direct popular election.

Most state legislatures had no strong desire to protect their citizens from the central government. They were more interested in getting federal money. Accepting large donations in exchange for voting for the U.S. Senate candidate of choice of the donor was a matter of almost all upside and little downside.

There is a reason why by 1912 so many state legislatures were holding popular referenda to nominate U.S. senators and then just rubber-stamping the popular choice.

So point taken.

This blog's specific proposal goes beyond just repealing the 17th Amendment. Section 3 empowers State Legislatures to remove its senator, ensuring that a State's senators have its government's desires and interests in mind. Section 4 is designed to address the aspects of the original design and congressional "fix" that led to the deadlock and corruption that Progressives were fighting when they proposed the 17th Amendment.

Jon Roland's specific proposal is to change the nominating process for senators to sortition. His proposed amendment states:

Members of the United States Senate, and houses of state legislatures whose members represent political subdivisions not based on population, shall be selected by a multi-stage nominating process that first randomly selects precinct panels of twenty-four, who then elect a person from each precinct, from among whom are randomly selected twenty-four persons for the next higher jurisdiction or district, and thus by alternating random selection and election to the next level, when they reach the top level, the number of randomly selected candidates shall be five, who shall be the nominees on the ballot for the final election by general voters, except that general voters may write-in other persons. Voters may vote for more than one nominee, using the method of approval voting. There must also be an alternative of "none of the above". The nominee receiving the most votes shall be declared elected, unless "none of the above" wins, in which case the position shall remain vacant.

The concern with this proposal is the quality of candidate a random selection process would produce. Taking the average Joe off the street and sticking him in the Senate would not fill me with much inspiration and hope for the Senate. Nevertheless, one key element of the Constitutionalism article that is absolutely required, assuming that a State Legislature should not choose a State's senator because of the increased chance of corruption, is the use of a different type of election procedure,

"Voters may vote for more than one nominee, using the method of approval voting."

The nominating process in America is badly broken, and this might be a good place to start thinking about how to change it. Perhaps if the random selection could be from the State Legislature itself or from among the leading people of each state's community (business, academia, medical, legal, religious, etc) and the selection from that seeded list could be via sortition, we could get to a process of senatorial selection that could bring the voice of the States back into the structure of the federal government while still minimizing the chance of corruption and deadlock.

Either way, it's heartening to see the interest in exploring this topic spread. At least people are thinking about it.

The morality of fairy-tales

If you really read the fairy-tales, you will observe that one idea runs from one end of them to the other—the idea that peace and happiness can only exist on some condition. This idea, which is the core of ethics, is the core of the nursery-tales. The whole happiness of fairyland hangs upon a thread, upon one thread. Cinderella may have a dress woven on supernatural looms and blazing with unearthly brilliance; but she must be back when the clock strikes twelve. The king may invite fairies to the christening, but he must invite all the fairies or frightful results will follow. Bluebeard's wife may open all doors but one. A promise is broken to a cat, and the whole world goes wrong. A promise is broken to a yellow dwarf, and the whole world goes wrong. A girl may be the bride of the God of Love himself if she never tries to see him; she sees him, and he vanishes away. A girl is given a box on condition she does not open it; she opens it, and all the evils of this world rush out at her. A man and woman are put in a garden on condition that they do not eat one fruit: they eat it, and lose their joy in all the fruits of the earth.

--G.K. Chesterton, "All Things Considered"

The morality of fairy-tales

If you really read the fairy-tales, you will observe that one idea runs from one end of them to the other—the idea that peace and happiness can only exist on some condition. This idea, which is the core of ethics, is the core of the nursery-tales. The whole happiness of fairyland hangs upon a thread, upon one thread. Cinderella may have a dress woven on supernatural looms and blazing with unearthly brilliance; but she must be back when the clock strikes twelve. The king may invite fairies to the christening, but he must invite all the fairies or frightful results will follow. Bluebeard’s wife may open all doors but one. A promise is broken to a cat, and the whole world goes wrong. A promise is broken to a yellow dwarf, and the whole world goes wrong. A girl may be the bride of the God of Love himself if she never tries to see him; she sees him, and he vanishes away. A girl is given a box on condition she does not open it; she opens it, and all the evils of this world rush out at her. A man and woman are put in a garden on condition that they do not eat one fruit: they eat it, and lose their joy in all the fruits of the earth.

–-G.K. Chesterton, All Things Considered

The plain-ness of it all

There is a series of little articles that G.K. Chesterton wrote bundled in the book All Things Considered. In the article "Patriotism and Sport," Chesterton writes:

But the real historic strength of England, physical and moral, has never had anything to do with this athletic specialism; it has been rather hindered by it. Somebody said that the Battle of Waterloo was won on Eton playing-fields. It was a particularly unfortunate remark, for the English contribution to the victory of Waterloo depended very much more than is common in victories upon the steadiness of the rank and file in an almost desperate situation. The Battle of Waterloo was won by the stubbornness of the common soldier—that is to say, it was won by the man who had never been to Eton. It was absurd to say that Waterloo was won on Eton cricket-fields. But it might have been fairly said that Waterloo was won on the village green, where clumsy boys played a very clumsy cricket. In a word, it was the average of the nation that was strong, and athletic glories do not indicate much about the average of a nation. Waterloo was not won by good cricket-players. But Waterloo was won by bad cricket-players, by a mass of men who had some minimum of athletic instincts and habits.

Chesterton often turns conventional wisdom on its head, and since today's conventional wisdom is typically only the wisdom of his day stretched out and taken to its logical (and oft times illogical) extremes, many of his insights are as insightful today as they were in his own time. It is fashionable today to bemoan the state of America - her politics, her job market, her "lost" liberties, her social inequality, her international reputation, her antiquated institutions, her professionalization of many aspects of society... the list can go on and on. In some ways, we are right to worry about these things, as constant evaluation of where you are helps with the mid-course corrections needed to get to where you are going. I think that, however, we sometimes lose sight of the winding road's long course for fear of the numerous potholes we are swerving to avoid. The state of the United States now looks a lot like Rome in its decline, they say.

For all I know, we might look a lot like Rome in decline. I wouldn't know; I never lived in Rome. But I have studied this country and lived with her people for almost four decades, and that experience does give me the ability to say a few things about the U.S. Americans are a hard-working, innovative people who are very engaged in their families and communities. States and the nation as a whole produce bright, energetic leaders and thinkers who work to make things better for the country. We know how to compromise to avoid extremes, and we have a uniquely American way of doing things. We've been stumbling about for over two hundred years, but somehow we continue to find a way to stumble forward.

By all rights, the United States should not be a great power - we are loosely organized and governed, we are not good at managing complex systems, we have multiple-layers of power and thousands of points of responsibility. Yet we have constantly risen to meet challenges that threaten us. Time and again, we have shown that we can come together and beat the odds. We reinvent ourselves and, somehow, end up on top - or at least among the leaders.

I attribute this to the grit of the average American. We live passionately and love our families, communities, and country, yet we fight constantly - among ourselves with words and too easily against other peoples with weapons. We believe in who we are, yet we find ways to treat each other as humans to tolerate dissent and conversation. We hate government, yet we continue to find creative ways to channel it to solve societal ills even as we turn around again to constrain and shackle it. We are full of paradox, yet we are guided by an everyday plain-ness, and average-ness, that is really not all that plain or average.

The United States is not perfect as a country. But Americans as a people are not Romans, and history does not repeat itself. At least not in the way most of the Talking Heads mean.

Three reasons why the individual mandate is unconstitutional

The Cato Institute has three well-reasoned arguments for why the individual mandate for health-care insurance is not constitutional.

Who's the conservative now?

Current uses of the words "conservative" and "liberal" have nothing to do with their traditional meaning. Well, that is not exactly true. They have, perhaps, too much to do with their traditional meaning given the fact that they seem to mean the same on the surface, but the animating spirit is completely different. Two hundred years ago, liberals believed in moving beyond personal government, in the form of the monarchy, to impersonal government, typically defined as what was then known as republican government. Conservatives sought to use the power of government to maintain the status quo and prop up existing power structures. There was not, however, any disagreement over the nature of man - that he needs restraint - or the proper role of that good government can play.

Over the course of the past one hundred years or so, these definitions were turned on their heads within the American context. Liberals became those who believed in the fundamental goodness of man for whom government could be used to advance the plight of man, and conservatives were those who, in the best spirit of the old Liberals, believed in the original sin of man who needed boundaries and hedges to keep an ordered society, those in government being no different (hence, separation of powers and checks and balances). The conservative commitment to republican values was, at heart, a commitment to the constitutional values that had made the experience of government a successful one, even if inefficient and unwieldy.

Over the past fifteen years, however, a phenomenal and dangerous blurring has occurred. The conservative paradigm has been petrified to the point that government itself is seen as the root of all problems. Rather than a properly-formed government being seen as a barrier against the more destructive inclinations of men, government of any kind is now seen as the barrier to all the good inclinations of men. It's some strange hibrid of the American-liberal vision in the goodness of men and the danger inherent in the original conservative perspective that the government that governs best is the one that rises the boat of the guilded interests. The rallying cry of the day is "No new taxes!"

On the other hand, the liberal paradigm has petrified to believe that government is the source of all goodness and the only savior of humanity. Because people are not to be trusted to conduct their affairs in honorable and virtuous ways, government regulates every possible area of life. Religion is banished from the public square, conviction is seen as the sign of a fanatic, so we are left with the only moral compass available to a society whose only remaining binding institution is the government: a thing must be deemed constitutional before it can be deemed moral. And since the ever-growing government has crowded out all room for virtue and compassion, welfare and social justice must be the business of federal agencies who, ironically, deliver the exact opposite of social security and medicare. It's some strange hibrid of the American-conservative vision in the evil of men and the danger inherent in the original liberal position that the government that governs best is impersonal. The plaintive cry of the day is "If we just spent more..."

I generally fancy myself a Constitutionalist, in an attempt to identify with the values of the eighteenth-century liberal and the twentieth-century conservative. But this week I am a Democrat as the Senate is taking up financial regulatory reform. I have to wonder if the Republican Party has completely lost its mind with its opposition to the severely anemic bill introduced by Senator Dodd. I can only hope that Senator Lincoln's bill will receive enough support for its main provisions to be adopted in any compromise bill the Senate crafts.

Even the sorriest of attempts to put some rules around the derivative trading and overleverage that led the U.S. economy into the worst recession since the 1930's is met with opposition by the Party that is supposed to believe that man requires boundaries and hedges to prevent him from doing his worst. Rather, we see the Republican lack of trust in government extending to functions that once received near unanimous agreement as fundamentally governmental. I see this as somewhat ironic, since the Bush Administration's (apparent) trust in government extended to functions that once received near unanimous agreement as fundamentally off-limits to government.

The world indeed has been turned on its head.

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.