Calvin inKleinAtions

Kelly ponders in his latest, cleverly-named article, Calvin and Hobbes, if the views of sixteenth-century theologian Reformation leader John Calvin toward the poor have infested modern-day America's views of the poor. The implication is, I would think, that those who do not believe government welfare programs are (1) constitutional or (2) proper functions of government do not believe that the poor are worth helping, supporting, etc.

While this proposition is tidy, it is too clever by half and paints a view of the truth both too simple and one-sided. Calvin's theological positions on predestination cannot be used to suggest that Calvin generally blamed the poor for their own plight. While he was a staunch defender of private property as a means for Christians to provide for the needs of themselves and their families, he was just as adamant that Christians should use their earnings over and above their own needs to help the suffering and dispossessed.

In his commentary on Isaiah 58:7 Calvin writes,

Uprightness and righteousness are divided into two parts: first, that we should injury nobody, and second, that we should bestow our wealth and abundance on the poor and needy. And these two ought to be joined together, for it is not enough to abstain from acts of injustice, if you refuse your assistance to the needy, nor will it be of much avail to render your aid to the needy, if at the same time you rob some of that which you bestow on others….

By commanding them to ‘break bread to the hungry’ he intended to take away every excuse from covetous and greedy men, who allege that they have a right to keep possession of that which is their own. ‘This is mine, and therefore I may keep it for myself. Why should I make common property of that which God has given me?’ He replies, ‘It is indeed yours, but on this condition, that you share it with the hungry and thirsty, not that you eat it yourself alone. And indeed this is the dictate of common sense, that the hungry are deprived of their just right if their hunger is not relieved. That sad spectacle extorts compassion even from the cruel and barbarous.

I would submit that Kelly points to a strain in Christian (Protestant) ethics that brings to light a more nuanced difference between liberals and conservatives regarding the role of government in helping the poor. The difference between them is over how to help the poor, not whether to help the poor.

The conservative position draws forth from the old Protestant work ethic that work is a vital expression of service to God and the world and that a person cannot honor who they are in God if they do not contribute to the world through their work. When coupled with the ancient biblical mandate to God's people to make provisions for the poor, we are closer to understanding the conservative position that a man is only whole when he his working in his field of calling (what he was created to do, gifted to do, passionate about, etc) and that the social safety net is there for those who stumble as a temporary hand up to get back on his feet, not a hand out that consigns him to the downward spiral of dependence. This latter destroys a man's (and woman's) sense of self and short-circuits his or her ultimate potential contributions to society. Notice here the importance of the social safety net being provided by civil society, not civil government.

The liberal view that the only way to help the poor is through the government not only works over time to destroy the man and his sense of self and sense of obligation to the community, but it also works over time to destroy the community by creating a permanent underclass of dependence and by diverting the government from its own proper role in providing for the general welfare (the good of society as a whole) and the common defense. The fact that liberals suspect conservatives - or constitutionalists - of not caring for the poor unless they support a myriad of government welfare, wealth distribution programs betrays their own skewed view of government, community and what it means to be human.

Nuclear blast or a blast of sanity?

The Democrats in the Senate this past week voted to restrict the use of the filibuster by the minority Party in consideration of presidential executive and non-SCOTUS judicial nominees. As this blog has called for since 2007, this is a move whose time is past due, especially given the increasing partisanship of Congress and Washington DC and the increased difficulty to move anything legislative along.

What is disappointing, however, is the hypocrisy demonstrated by both Parties on this matter. In 2005, Republicans were decrying the use of the filibuster to stymie President Bush's nominations while the Democrate were clutching to the sacred tool of the minority to defeat the designs of an "imperialist President." Even Senator Obama himself called for the respect of the voice of the minority party. Now that the designs of their own (imperialist? - no more so or less than Bush was) president have been thwarted by the Republicans in the Senate (who now love the filibuster as much as the Democrats in 2005), the Democrats can not believe how unfair and antiquated the filibuster is so moved to change it. "Enough is enough," as President Obama proclaimed.

Well then, fair enough as well. I trust the Democrats will be as faithful to their principled stand today when they next stand as the Senate Minority Party.

 

Groupthink

"In the United States, the majority takes charge of furnishing individuals with a host of ready-made options, and it thus relieves them of the obligation to form their own. There are a great number of theories on matters of philosophy, morality or politics that everyone thus adopts without examination, on the faith of the public; and if one looks very closely one will see that religions itself reigns there much less as revealed doctrine than as common opinion."

--Tocqueville

Calvin and Hobbes

Have the ideas of John Calvin influenced the current debate over the role of government in the United States?

I've been listening to a course about European history and the development of Western Civilization. It is quite eye-opening how many parallels exist between events from centuries ago and those of today's age.  In the time between the Roman Empire and World War I there was no shortage of princes, kings, empires and the privileged classes that seemingly always surround those in power.  The idea of "the divine right of kings" was accepted on faith, somewhat through theological arguments but I think mostly it was due to the simple fact that people who argue with those in power tend to lead much shorter lives (can we say, gaining an up close perspective with the business ends of blades and/or ropes), so let's call that pragmatism which over time became a matter of custom.  It was just the way things were. 

When Thomas Hobbes published Leviathan he set the world to thinking about new ways to think about the relationship between the state and the individual, like the civil society or the social contract.
So when the reform movement began it was easy to divide the groups into those who fought for change (liberals) and those who defended the status-quo (conservatives).  

While it is informative to review the list of ideas resisted by conservatives, I will leave that for another article.  I want to focus on John Calvin and Geneva. Calvin was one of the reformers who wanted to return to a simpler church, one that focused on the Bible more so than centuries of doctrine and orthodoxy.   Some of the attitudes were that the poor were that way due to some moral failing, and thus shouldn't complain but work to be more pious instead because they must be being punished by God. Calvin believed that the power of the State was needed to insure people would not sin and instituted a rigid set of policies of private behavior along with system of informers to make sure that no sin went undiscovered nor unpunished regardless how small or venial.  Another view was that since everyone's fate was predestined, one should not resist whatever plight might befall but rather embrace it as the will of God.  Both attitudes meant it became easy if not acceptable to dismiss the poor as 'not my problem' or 'they must be lazy'. Calvin's theology was strong enough to being an entire city under his influence, stifling dissent even to the point of burning critics like Servetus at the stake for heresy with very little room for tolerance(*).
 
That brings me to the modern day and political debates on reformist ideas like minimum wage, healthcare, food stamps, immigration, spending policies, and the like.  In the comment section of some article not unlike one about the Texas healthcare system and its poorest citizens, one commenter bravely described her 3 bouts with cancer, not being able to hold down a job, barely being able to afford cancer treatments - and the someone had the gall to reply with 'get a job!'.  Yes that person may be trolling but the sentiment seems to be a common one these days and it really exposes an attitude by a large number of people who refuse to emphasize with others. Maybe they are so overwhelmed by stories of the downtrodden that they've become convinced that the world can't be that bad and evidence otherwise must be either hoaxes or from swindlers gaming the system.  The danger with this new attitude is that it reveals a callous nature, if not outright selfishness. 

Here we come full circle, and the question of the day: have the beliefs of Calvin instituted in Geneva been reconstituted in America? 


(*) From the John Calvin Wikipedia article,

Following the execution of Servetus, a close associate of Calvin, Sebastian Castellio, broke with him on the issue of the treatment of heretics. In Castellio's Treatise on Heretics (1554), he argued for a focus on Christ's moral teachings in place of the vanity of theology,^[97] and he afterward developed a theory of tolerance based on biblical principles.^[98]

Armies…. being necessary to to the security of a free State….

This clever juxtaposition of the Article I word of "armies" and the Second Amendment's preamble on militias by Akhil Reed Amar in his latest book on the Constitution, The Unwritten Constitution, serves to illustrate the concept of America's unwritten Constitution through deed and action ("We the People .. do ordain and establish…") that Amar seeks to impart in the second chapter of his book. In this case, the national draft is a constitutional exercise of Congress' power to raise armies granted in Article 1 because of the enactment played out in the adoption of the Fourteenth and Fifteenth Amendment. After the Civil War, the Union Army played a vital role in reestablishing republican government in the southern states that had rebelled against the constitutionally elected government of the United States and the states that had remained loyal to the Union.

Amar's argument is that the events and acts that lead up to the proposal and ratification of the Constitution and its amendments compose part of the unwritten Constitution that, interwoven with the actual written Constitution, makes up the foundational fabric of American law. He examines the principle by proposing that the Reconstruction Congress reinterpreted the expectations of the Founders underlying the militia system. The militia system had been established by the Founders to be locally-based and under the control of the States in order to preserve the People's freedoms and liberties from centralized tyrants. However, by the 1860's, the militia system had been turned into an instrument of resistance against the federal government and Civil War erupted, turning the Founder's experiment in republican government on its head. The Union Army, an Army which was composed of conscripted soldiers up until the end of the Civil War, helped to bring the Reconstructed South into the Union, and part of their readmission was the ratification of the Fourteenth Amendment.

So because of the events and actions behind the adoption of this important Amendment, the Constitution was reconstructed and the Army, an institution of suspicion in late 18th century America, was given a new place of trust and prominence because of its role in freeing the slaves and the hold slavery had on the liberties and humanity of all Americans.

 

The Essential Problem with the Unitary Executive

Not So Eerie Parallel

By Kelly

The analysis of John Yoo's problem with Elena Kagan reminded me of something I attribute to the Watergate scandal, specifically G. Gordon Liddy. The paraphrase was something like 'The President can not give an unlawful order'. I can't find the quote, I might have it attributed to the wrong person. To be fair I'm basing it on 30-year-old memories but I was quite struck by how there could exist a class of person who was so willing to follow a leader regardless of direction, whether into battle or over a cliff. It is these men who allow their hyper-loyalism to distort their duty to the country; if I had to guess I would say that in their minds the President _is_ the country and what is right for one is automatically right for the other.

In political discourse it has become easy for the newly elected to delude themselves with "I won therefore I must be right" which taken to the logical extreme can become 'might makes right', the damage being to the idea that the entire constituency is the source of power not just the subset of people who agree with you and vote. If tolerence is supposed to be a virtue it must be getting lonely of late. Governing without regard to the minority has long been recognized as another form of tyranny; occurring in a democracy only makes it a minor tyranny whose overthrow is only an election away - but a tyranny still.

True patriots do not ask, "If you are not with us, you are against us", which relies on demagoguery and fear to quell dissent. A true patriot asks, "Is this what is best for the country as a whole?" We are not a country of one mind in complete agreement, of which our founding father's were quite aware, and to progress down the road of history will require those who rule to show respect for the opinions and beliefs of the minorities being ruled, how else to have the respect of the people - for if you show the people your scorn for them, you no longer are deriving your power from them and have begun to take the well-worn steps down the despot's road.

 

American Localism

American Localism

In his book Timely Renewal, James W. Lucas makes a particularly effective case for decentralization of government power and placing governance as close to the people, in geographic terms, as possible. Arguing that large federal government (and its associated suffocating regulations and debt) and large corporations (and their anti-competitive monopolies) have brought declining creativity, productivity and standards of living, Lucas argues for a return of "American localism." Large-scale nationalism and mercantilism have killed the spirits of entrepreneurism and local community. The natural relationships among humans have been severed as integration at greater and ever larger scales abstract us from one another at ever increasing levels, leading to dysfunction and dehumanization. Is it any wonder Congress is so polarized and entrenched?

Politics and economics "as if people matter" demands decentralization and devolution of power. Lucas writes:

Progressive, anti-globalization activist David Korten considers it "to be a near-universal truth that diversity is the foundation of developmental progress in complex systems, and uniformity is the foundation of stagnation and decay.... Our challenge is to create a locally rooted planetary system biased toward the small, the local, the cooperative, the resource-conserving, the long-term, and the needs of everyone." Strong local economies "encourage the rich, flourishing diversity of robust local cultures and generate the variety of experience and learning that is essential to the enrichment of the whole." (David C. Korten. When Corporations Rule the World, second edition. San Francisco: Berret-Koehler Publishers, Inc. and Kumarian Press, 200-, pp. 240-241.) A key principle in achieving these ends is that "governance authority and responsibility are

located in the smallest, most local system unit possible to maximize opportunity for direct, participatory democracy." Such communities are strongest when they have strong social capital, for which locally owned businesses are a key element. (Korten, pp. 245, 251.)

The author quotes another historian William Appleman Williams, who proposed replacing the institutions of "American empire" with a federation of regional communities. "The price of liberty is not so much vigilance as involvement. If you want to rest, vote for a dictator. The crucial arena for such citizen groups is and will remain the states. That is where social movements have to be build."

(Lucas, pp. 60-61)

Lucas reminds us that simple arithmetic shows that states are more representative of and responsive to citizen needs than the federal government. "The 435 members of the national House of Representatives have on average more than 700,000 constituents in each of their districts.... In contrast, the more than 7,000 state legislators represent on average just over 50,000 constituents each."

Those who pine for government activism should return their efforts to the States. The federal bureaucracy has become so bloated and the Congress so plodding that change at the federal level takes decades of tireless lobbying, advertising, politicking, and horse-trading. It took 100 years to pass so-called "universal health-care." However, the states are close to the people, both in heart and geography, and there are less people across a state for which to account in the eventual compromise, making conversation more natural and participation for the average citizen possible (big money campaigns at the local level are not of concern). Change can be tried with greater ease and nimbleness, and any potential failure is contained in its scope to the state at hand. Success of experimentation is then rewarded by other states seeking to emulate the model, latching onto the successful government involvement.

Those who love freedom and limited government clamor for a more vibrant federal-state balance as well. Jefferson said, "unless the mass retains sufficient control over those entrusted with the powers of their government, these will be perverted in their own oppression, and to the perpetuation of wealth and power in the individuals and families selected for the trust." Remembering that the federal government was put in place for continental defense and cooperation, the balance of an energetic federalism has the added benefit of diffusing power across a broad number of institutions, separated by thousands of miles, making coordination difficult, even in this age of the Internet (state governments cannot coordinate to call a federal Constitutional Convention, it seems, never mind some effort more complex).

In his book, Lucas does a fantastic job of tracing the rise of federal involvement, control, and centralization. While his book is more focused on proposing constitutional amendments that would allow the People to take control of that document and reduce the tendency of the Supreme Court to continue sitting as a perpetual constitutional convention, Timely Renewal has highlighted the root of the current problems. I will look at some of those in the blog posts ahead, but first I'd like to take a sidebar to examine what this blog has repeatedly called out as the source of the modern-day federal-state imbalance of power - the Seventeenth Amendment.

Liberty's call: messy and the stuff of life

Our Consolation must be this, my dear, that Cities may be rebuilt, and a People reduced to Poverty, may acquire fresh Property: But a Constitution of Government once changed from Freedom, can never be restored. Liberty once lost is lost forever.

--John Adams

Regarding the siege of Boston; Letter to Abigail Adams - Philadelphia [July 7th, 1775]

I am for a government rigorously frugal and simple, applying all the possible savings of the public revenue to the discharge of the national debt; and not for a multiplication of officers and salaries merely to make partisans, and for increasing by every device the public debt on the principle of its being a public blessing.

--Thomas Jefferson

Letter to Elbridge Gerry (statesman and diplomat) [1799]

Democracy is messy business because humans are messy. We hear continued lamentations over how antiquated our Constitution is (although it was good enough to rise up the most powerful and prosperous nation in history) and how dysfunctional our Congress is, yet somehow we continue to govern ourselves in freedom and respect for the law. We have seen compromise win out time and again over the past ten years, in this time of supposed hyper-partisanship and "extremists" of each Party acting as terrorists (Biden's words, not mine). The debt ceiling / deficit reduction compromise is the latest case in point. It is by no means perfect, but no compromise is. No one likes it, because every side had to give up something they desperately believe in. And it is only the first step in a very painful and protracted journey to get our financial house in order. But none of this changes the fact that our Constitution and, even if somewhat belatedly, Congress works as designed (or amended - see Repeal the Seventeenth Amendment).

If the federal government's spending spree of the past ten years (and, truth be told, of the past fifty) proves anything about our Constitution, it's not how antiquated it is. The lesson to be drawn, to those with eyes to see past their own petty paradigms and presumptions, is just how right the Founding Fathers were and how relevant their counsel still is. The Constitution in Article 1, Section 8 lays out the parameters of federal power, and the specifics were limited in their application to the whole (through the general welfare clause) so that Congressmen could not play favoritism. It is our excursions beyond the bounds of the Constitution that have gotten us into financial trouble:

• Social Security
• Medicare / Medicaid / Universal health care
• The Department of Education / No Child Left Behind
• The Department of Energy

These behemoth social welfare programs have squeezed our spending for the business the federal government should be about according to the Constitution:

• Defense
• Regulation of interstate commerce
• International affairs
• Scientific exploration
• The Post Office (and, by extension of the principle, building out and supporting the interstate infrastructure)

We have strayed from the Constitution's bounds, but it still provides the governing superstructure for us to successfully resolve our differences in a peaceful way. The fact that our political process has become more slow and more prone to gridlock is indicative only of the many different areas of governance that Congress has stuck its nose in over the years that cannot be managed on such a large level. Regulation, the police power, health care, education - these are matters for the states because these are the things people are most passionate about. These are the things that impact their lives most day-to-day and the need for decision-makers to be close to the people is real. Also, these are areas where people with different worldviews (metanarratives) most violently disagree, so providing options among states is important. If people don't like what one state is doing, they can fairly easily move to other states. It is easier to gain consensus and move into action at the state level. The machinery is more nimble and smaller scale.

The scale of the federal government is needed on matters of collective, continental interest.

To adapt the famous Chesterton quote from its original Christian context: the Constitution has not been tried and found wanting; it has been found difficult and not tried.

 

 

On paradoxes: the mixing up of conservatives and liberals. Or Why the U.S. Can't deal with it's current debt crisis

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..."

These petrifications are racing toward each other over the current debate over whether to raise the federal debt limit and threaten to spectacularly collide with one another. The resulting wreck would have far-reaching consequences for us all, as the federal government's inability to pay its bills will lead to a default on the debt, the ruining of Treasury bills as a safe-haven for investments, and the meltdown of the financial sectors all around the world. This is serious business, and it is long past time for Congressional leaders and the President to come off their respective high-horses and do what is right for the country. A mixture of spending cuts, some tax increases, and more spending cuts will be necessary to fix the country's short-term debt problems. In the longer term, our fixation with debt will only be addressed through readdressing the boundaries of the federal government and reigning its activities back within its constitutionally-prescribed mandates.

The world indeed has been turned on its head.

"doing the right thing for the wrong cause"

I read these words this morning, and if I didn't know that they were written in 1919, I'd have thought them written for America today.

 

We can no more subject the world to the English compromise than to the English climate; and both are things of incalculable cloud and twilight. We have grown used to a habit of calling things by the wrong names and supporting them by the wrong arguments; and even doing the right thing for the wrong cause. We have party governments which consist of people who pretend to agree when they really disagree. We have party debates which consist of people who pretend to disagree when they really agree. We have whole parties named after things they no longer support, or things they would never dream of proposing. We have a mass of meaningless parliamentary ceremonials that are no longer even symbolic; the rule by which a parliamentarian possesses a constituency but not a surname; or the rule by which he becomes a minister in order to cease to be a member. All this would seem the most superstitious and idolatrous mummery to the simple worshippers in the shrines of Jerusalem. You may think what they say fantastic, or what they mean fanatical, but they do not say one thing and mean another. The Greek may or may not have a right to say he is Orthodox, but he means that he is Orthodox; in a very different sense from that in which a man supporting a new Home Rule Bill means that he is Unionist. A Moslem would stop the sale of strong drink because he is a Moslem. But he is not quite so muddleheaded as to profess to stop it because he is a Liberal, and a particular supporter of the party of liberty.

--G.K Chesterton, The New Jerusalem, Chapter VII

Originally posted on Wordpress 5/24/2011

Money Matters

A dear friend pointed out the Yahoo! news story highlighting the growing gap between the rich and the poor in America that was the central artifact in a drawn-out family debate. I read this story and am left wondering what exactly is the point. What do those who wring their hands over this sort of thing propose we do about the thing? The unspoken assumption is that the pot of money is only so big and the rich are stealing from everyone else.

This is simply not true. Wealth creation is just that - the creation of wealth. America is the first society in all of human history when anyone here can set their mind to something and be free to set about making that thing happen. It is drive and risk-taking and initiative that builds new stuff and ways of doing and this new stuff and ways are what create the jobs that keep the middle and lower classes employed, productive, and yes, paid. If this drive and risk-taking and initiative are not rewarded, then what incentive will there be for these folks to continue to do what is needed to create and produce? And if the best and the brightest do not create and produce, then the middle and lower classes truly will sink to the levels of poverty seen in less fortunate parts of the world.

The rich get richer, but the other half of the story is not that the poor are getting poorer. The astute reader will have noticed this. The other half of the story is that the media does not tell is that everyone can do what the rich do and get richer as well. Dave Ramsey says that if you want to become rich, do rich people stuff. Work hard, stay out of debt, live within your means, and save. These are not hard concepts. Anyone can do them, even those people wringing their hands over the non-existent limit on wealth.

 

Remember those little things called constitutional amendments?

On the venerable Balkinization blog, Guest blogger David Beatty asks if the U.S. Constitution is beloved or betrayed? While the American constitutional system still sets the standard for separation of powers, submission to the rule of law, and federalism, those outside the U.S. share a concern over what Beatty styles judicial politics and personality. Beatty writes:

It is more in the theory and practice of constitutional law that outsiders have come to the conclusion that American constitutionalism is not a practice to be emulated. One feature of the American model of constitutional democracy that many outsiders find particularly regrettable is how personal and partisan it has become, especially among the judges who sit on the Supreme Court.

While Beatty goes on to argue that this is regrettable and holds up South Africa as the model of the judicial function of rightly interpreting law and the facts of each case - what he styles a balancing approach - in reality this encourages the exact problem that Beatty accuses the U.S. Supreme Court of. The protections of law that the South African Supreme Court have carved out are the products of the judicial activism that has been so detrimental in the U.S., a la Roe v. Wade. The U.S. Supreme Court, as we all know, rarely finds common ground on how to interpret the Constitution. But at least they try. I'd rather have this than the real judicial politics and personalities driving in Beatty's South Africa Supreme Court counter-example. They are the ones drawing pre-ordained conclusions, unanchored from the shores of their own constitutional text.

It is beyond me why it is so hard to understand that we can add any protections we want to our Constitution. It's called an amendment.

 

The Repeal Amendment or State Vetoes

Representative Rob Bishop has introduced the so-called Repeal Amendment in the House of Representative as a proposed amendment to the Constitution. The idea is to give the states a mechanism to preserve federalism from their end:

The U.S. Constitution, as drafted by the Founders, designed a system that created a balance of power between state and national government. That original balance has eroded as the federal government has accumulated more and more power in Washington. The Repeal Amendment will help restore the spirit of the Tenth Amendment by strengthening the ability of States to protect those powers “reserved to states”—as outlined in the Bill of Rights.

This is a much more practical alternative to the nullification option proposed by Texas-based constitutional lawyer Jon Roland.

While I have not vetted the text of the proposed amendment or seen much analysis of its projected ability in enabling its objective, here is the wording submitted by Representative Bishop:

"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

 

Did the Framers seek an imperial presidency after all?

The Balkinization blog held a symposium the past week on Bruce Ackerman's new book, The Decline and Fall of the American Republic. Stephen Gardbaum wrote one of the reflections on Ackerman's book, and he also provides a nice recap for the uninitiated:

Bruce Ackerman’s The Decline and Fall of the American Republic is a profoundly important constitutional wake-up call. It presents a powerful, multi-layered, yet highly accessible argument that the body politic faces the serious and unprecedented structural risk of presidential extremism and lawlessness -- and a series of new checks and balances that offer the rare combination of pragmatism and originality.

I have not read Ackerman's book yet, so I cannot comment on it.. However, I would like to comment on Gardaum's essay, Empire Rises. Gardaum agrees with Ackerman's assertion that the presidency has turned out to be the branch that has proven the most dangerous to republican government, but, unlike Ackerman, he does not want to let the Framers off the hook. He contends that the Framers had all the evidence they needed to draw the right lessons. They simply decided to institute a strong executive:

 

I think the Framers’ error went beyond this wrong guess to the governmental structure that they established. This structure was inherently and latently flawed at the outset in the way that has come to pass, not precisely of course but generally – and the knowledge to have avoided this was available to them at the time. For the republican revolution that they wrought was not entirely without precedent. The first took place in 510 B.C. when Rome expelled its last king and established the republic. The new republican constitution split both the executive and legislative branches of government into two or more. It replaced the king with two magistrates, the consuls, who were jointly endowed with full executive power, and separated/divided legislative power among several citizen assemblies. The Roman Republic, which became a superpower along the way, lasted for just under five hundred years before it fell when a concentration of power in just one person – Augustus – effectively returned the state to a monarchy under the Empire. In deliberately rejecting the plural executive of the Roman Republic, a far larger version of which was tried and failed during the Articles of Confederation, the Framers hewed too closely to the monarchical structure of government they were nominally rejecting. They effectively replaced the king with a president, and the distinctive British conception of separation of powers between King and Parliament with the analogous one between President and Congress. Hamilton’s Federalist 69 on the differences between the powers of King George and (likely) President George – including an absolute versus a qualified veto of legislation – is arresting in its strained, almost scholastic reasoning and “methinks he protests too much” quality.

I think modern technology, the Party system, and the nature of modern warfare have enabled the presidency to become much more powerful than even Hamilton could have imagined, but the seeds of the imperial presidency were enabled by the Constitution. I have often wondered at the vast number of similarities between the American presidency and the British constitutional monarchy of the eighteenth century. If this analogy is truly the root of the Framers' conception of the presidency, then the implications for American constitutional principles are vast, e.g., the congressional power to "declare war" truly is only a legislative function and the authority -- indeed, the expectation -- to wage war rests with the executive. In seventeenth-century Britain, the legislative check on war-making was the power of the purse.

To provide true legislative oversight of the executive, the parliamentary system might, in some delicious irony, be the most effective structure. Without its separation of powers, parliamentary government provides the legislature the ultimate structural control of the executive: the Government comes from and answers to the majority of Parliament.

 

Amar's Bill of Rights: The Misappropriation of the Fourth Amendment

The Fourth Amendment, in many respects, is the closest thing to a right to privacy that can be found in our federal Constitution. This Amendment has become the bulwark of personal security and liberty in our country, even as we struggle to understand the limits our security should place on our liberty and the imposition that technology places on both. But in Chapter 4 of his book The Bill of Rights, Akhil Reed Amar argues that the Founders were not primarily building an individual right to security and privacy in the Fourth Amendment, rather they were providing another tool for civil juries to keep oligarchical and repressive governments in check.

Let's walk through Amar's development of his argument because, even if we do not wish to adopt the Founders' interpretation of the Fourth Amendment -- after all, there is a place for a right to privacy in our constitutional structure -- there are principles the Founders' view of the Fourth Amendment have to teach us.

The Fourth Amendment reads as follows:

 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The use of the word "people" in this Amendment rings with echoes of the context of the other Amendments employing this word -- the First, Second, Ninth, and Tenth Amendments. This is the clarion call to the sovereignty of "We, the People of the United States." Amar imagines what the Amendment might mean for us if we take this popular sovereignty perspective alone in its interpretation:

 

On one reading, the amendment's language of "the people" could be read as reminding us that we must be especially watchful of government efforts to use search-and-siezure powers to interfere with people's political activities -- circulating petitions (literally the people's papers), attending political meetings (with the literal persons), assembling in a constitutional convention (which might be seen as a house of the people), and so on. But without more, this reading seems a bit too cute; surely, the main "houses" to be protected here are private abodes, not public assemblies.

Amar argues that the 1763 English case Wilkes v. Wood must have served as an influence for Madison:

 

Wood involved a famous cast of characters -- both the target of the government, John Wilkes, and the author of the opinion, Lord Chief Charles Pratt (soon to become Lord Camden), became folk heroes in the colonies.... Wilkes, a champion of the people and a member of Commons, had used the press to communicate with his constituents and criticize George III's ministry and majesty. When the government reacted by trying to use general warrants to suppress his political activity, breaking into his house and rummaging through his personal papers, Wilkes brought suit in Wood and successfully challenged the legality of those warrants. Wilkes also brought suit to challenge the "seizure" of his "person." (The government had imprisoned him in the Tower of London.) In a companion case to Wood, the lord chief justice ordered Wilkes released on habeas corpus on the ground of his Parliamentary privilege from arrest.

Madison quickly turns from the "political to the personal, from the 'the people' out-of-doors in conventions and suchlike to "persons" very much indoors in their private homes."

 

Yet even here, in taking the familiar talk of individual rights, we must be wary of anachronism and must not automatically assume that the right was essentially countermajoritarian. As with virtually every Bill of Rights provision thus far examined, the Fourth Amendment evinces at least as much concern with the agency problem of protecting the people generally from self-interested government policy as with protesting minorities against majorities of fellow citizens. A self-dealing and oligarchic government, after all, could threaten rights of the people collectively by singling out certain persons -- opposition leaders like John Wilkes, for example -- for special abuse. To counter this and other threats, the Fourth and Seventh Amendments armed civil juries, drawn from "the people," with special weapons to protect both individual persons and the collective people against a possibly unrepresentative and self-serving officialdom.

Reflect, for a moment, on the fact that the Fourth Amendment actually contains two different commands. First, all government searches and seizures must be reasonable. Second, no warrants shall issue without probably cause. The modern Supreme Court has intentionally collapsed the two requirements, treating all unwarranted searches and seizures -- with various exceptions, such as exigent circumstances -- as per se unreasonable. Otherwise, the Court has reasoned, the requirement that a neutral magistrate verify probable cause ex ante would be obviously frustrated -- the special safeguards of the warrant clause would be all but meaningless.

But this conflation of the warrant clause with the probable cause clause is not what the amendment says and effectively rewrites the amendment by adding a second sentence: "Absent special circumstances, no search or seizure shall occur without a warrant."

Amar invites us to rethink our assumptions:

 

To begin rethinking, consider the paradigmatic way in which Fourth Amendment rights were to be enforced at the Founding. Virtually any search or seizure by a federal officer would involve a physical trespass under common-law principles. An aggrieved target could use the common law of trespass to bring suit for damages against the official -- just as Wilkes brought a trespass action against Wood. If the search or seizure were deemed lawful in court, the defendant would prevail; but if, as in Wood, the search were found lawful, the defendant government official would be held strictly liable. There was no such thing as "good faith" immunity.

The problem with the Supreme Court's modern approach is that the proper role of the jury is displaced, and the role of citizens to act as a check on the professional judiciary and powerful magistrates has been hijacked. General warrants are too, well, general, and the ability of juries to review facts and determine appropriate awards and damages for cases in which they deem rights were violated is compromised. As in our loss of understanding of the militia, the modern jury is a sad shadow of its former energetic self and fundamental structural principles of the original Constitution have been lost.

Marriage: social order or individual freedom?

For hundreds of years, human society has ordered itself around the institution of marriage. Men provided safety, security and sustenance for women, women ordered the household so that men could work out in the community, and the home the man and woman built provided the place for children to be raised in accordance with the expectations and standards of the community. Marriage has not been first and foremost about the happiness of the spouses. That has been a byproduct of a husband and wife reaching for their better selves and working together to become more than the sum of their parts, but the primary purpose has been one of social order and securing the propagation of society.

This all started to change in the twentieth century when women in Europe and the United States went into the workforce and changed the balance and characteristic of the home. Then with the advent of birth control and the Supreme Court decisions of the 1960s that institutionalized the right to privacy in the U.S., the link between marriage and the propagation of society was irreparably broken. Marriage was no longer necessarily about social order. The individual happiness of the people in the marriage was the first order concern of the institution. No-fault divorces became the laws of the land in the states, and everyone accepted the new conventional wisdom without much thought as to the ultimate logical conclusion.

So we should not really be surprised that the definition of marriage has been increasingly challenged over the past twenty years, now to the point where it is a question of equality under the Constitution. Of course it has nothing to do with equality because everyone is perfectly free to marry anyone of the opposite sex. Yet the question remains - if marriage is first and foremost about the happiness of the individual and no longer the primary concern of society, then what right does society have to restrict who can and cannot be married? And there you have it - the competing values that are at play in contemporary debates over the definition of marriage.

Those who defend the traditional understanding of marriage between one man and one woman see marriage still as the fundamental bedrock and foundation of society. Social order is protected by marriage, so society has an obvious interest in ensuring its health. Nevertheless, proponents of traditional marriage lost the debate before it really started. Once the link between marriage and propagation was severed in our minds, the primary reason for marriage to serve as a societal institution was lost.

Those who advocate for the expansion of marriage for same sex couples see the purpose of marriage as serving the personal interests and happiness of the parties of the marriage. It is a contract that can be entered and exited when it no longer suits the needs or interests of one of the spouses. Society has no business getting involved; the government should "stay out of the bedroom," etc. Nevertheless, proponents of expanding the definition of marriage, along with all the rest of us, have lost the sense in which society is vested in the health of marriage. The future of humanity is bound up in the institution of marriage, and that fact can't be changed, no matter how hard we try to ignore it.

The currents of history feel like expanding the definition of marriage is inevitable, but even if that plays out, society needs to simultaneously find a way to reunite marriage with childbearing and childrearing. Children with two loving parents who are plugged in and responsible are the best cure to inner city crime and gang activity, suburban drug abuse, and substandard education across the board.

In any case, our fundamental misstep in this debate as a people was to allow the discussion to become federalized. Marriage and family have been regulated by the states since the inception of the Republic, and the federal Constitution delegates no authority to the federal government in the area of marriage. Allowing each state to decide for itself how to order and structure marriage would prevent the mistakes we have made with abortion -- politicizing the issue, removing any room for democracy to drive debate and compromise, and smothering presidential elections with social issues that should not be the concern or purview of the U.S. president.

Are we so afraid of losing control that we can't trust each other to come to the right answers? Is the constant, unending struggle for the political machinery in order to dictate and impose our own beliefs the only resolution to the question? God save us from ourselves if it is. The Founders, once again, knew better.

Amar's Bill of Rights: The Military Amendments

In considering the constitutional state of war powers a few years back, I worried that "executive excesses would probably be tied to [the president using the military domestically], as might be the case if a President sought dictatorial powers through the imposition of martial law." At the time, I was not prepared to offer a structural solution to prevent such a calamity, and for good reason. Smarter people than I have pondered this problem before me, including the Founding Fathers.

Their solution to the question was in the way they structured the Union's military system. A standing, professional army as a dangerous concept to the Founding generation, having just fought the Revolutionary War to throw off the oppresive yoke of the British. Alexander Hamilton notes the danger in The Federalist 28:

 

[I]f the persons instrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which [the nation] consists, having no distinct government each, can take no regular measures for defense. The citizens must rush tomultuously to arms, without concert, without system, without resource....

The answer for the Founders was to be found in federalism, and the militia under the command and control of the state governments. Jon Roland helpfully reviews the original constitutional meaning of "militia", which is important when considering that the Constitution in Article 1, section 8, clause 16 gives States the power of "Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

Amar expands this thought on page 50 of his book The Bill of Rights:

 

in the event of central tyrrany, state governments could do precisely what colonial governments had done at Lexington and Concord and Bunker Hill: organize and mobilize their citizens into an effective fighting force capable of besting even a large standing army.

Amar quotes Madison in The Federalist 46, which is worth repeating here to drive home the point of just how much the Founders were counting on the local militia:

 

[T]he State governments with the people on their side would be able to repel the danger.... [A standing army] would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence.

The standing, professional army of the eighteenth century was often a hoarde of foreign mercenaries that had no allegiance or fealty to the people in the local countryside where they were ordered to fight. The very structure of the militia meant that it was composed of family members and neighbors who lived and worked together. Already tightly knit and bound to return to life together after war, the militia was bound together by trust and need, so picking their own leaders among them helped tighten their cohesion.

Yet this federalism check on military adventurism by the central government did not quell the objections of the Anti-Federalists. Many pointed out that Congress still had power "to provide for organizing, arming, and disciplining, the Militia." The Second Amendment was designed to limit congressional manipulation of the militia and leave them available to arming by the State governments.

While the meaning of militia has morphed over 200 years, the core concepts of the Second Amendment are still applicable: the militia was composed of all the people capable of bearing arms, so "the people", subjects of the federalism-based rights of the First Amendment, are also the subjects of the Second Amendment. And, as Amar argues, the "well-regulated" can't mean the power to disarm, as this was the very power it sought to keep away from Congress. Localism was the very heart of the militia system and for that reason, along with the experiences of the ratifiers of the Fourteenth Amendment that relied on standing armies to preserve the Union against the tyranny and abuses of localities and states (ironically the opposite experience of the Founders), there is good reason to incorporate the Second Amendment against the states.

As an aside, Amar also argues that the conscription is unconstitutional because Congress circumvents the power of the State governments to appoint the officers of the militia and training the militia. "Under this reading, the federal government cannot directly force ordinary citizens into it's army, but state governments can conscript, organize, and train their respective citizens -- the militia -- who can in times of emergency be called into national service." (p 53)

The Third Amendment also acts to support civilian values against an overbearing military, working to subordinate the military to the civil power. Amar writes:

 

No standing army in peacetime can be allowed to dominate civilian society, either openly or by subtle intimidation. The Second Amendment's militia could thwart any open military usurpation - say, a siege - but what about more insidious forms of military occupation, featuring federal soldiers cowing civilians by psychological guerilla warfare, day by day, house by house? Bostonians who had lived under the hated Quartering Act of 1774 knew that this was no hypothetical. Hence the Third Amendment was needed to deal with military threats too subtle and stealthy for the Second's "well-regulated Militia." (p. 59)

Modern jurisprudence has a tendency to use the Third Amendment to construct rights of privacy for the individual, but the original context of the Third Amendment placed further limits on Congress' conscription power and further enforced separation of powers between the legislative and the executive. Congress' conscription power was restricted because if civilians could not be impressed upon to limited service as Innkeepers and cooks for soldiers, then what sense does it make that civilians can be pressed into full military service? Separation of powers were further defined because it took Congress, not the executive, "in a manner prescribed by law" to conscript a person's house.

So we see that the Second and Third Amendments work together to subordinate the military to the civilian power and to place checks against the executive's misappropriation of the military for his own purposes. Combined with Congress' complete power to raise and govern the military and to declare war, the Founders erected a wonderfully symbiotic system to ensure that all parts of society truly believed war was necessary before the nation was committed to war and, once it was, that the military would be used in a responsible manner.

Some argue that is was necessary for the United States to evolve away from the militia system in order to become a great power. The Bible reminds us that Israel abandoned its reliance on God to anoint a King "like all the nations." If we want to wield power "like all the nations," then in order to not become serfs to tyranny "like all the nations", the people of the United States must insist on a symbiotic system of checks and balances around our modern-day war powers for our military arrangements, just as the Founders did for their own. Yet another lesson we have forgotten in our modern rush for convenience, efficiency and power.

 

"Declare war" is synonymous with going to war

Congress has the sole power to decide when, where, against whom, and to what extent the United State will go war, according to this paper from Saikrishna Prakash: Unleashing the Dogs of War: What the Constitution Means by "Declare War". For the Founders, Prakash argues that there was more than the formal way to declare war that we typically think of today. Attacking an enemy was considered a declaration of war, so the Constitution leaves it solely to Congress to decide whether the nation goes to war. The President, as Commander-in-Chief, has standing constitutional authority to defend the property, territory and people of the United States, but he does not have inherent authority to take offensive actions without authorization from Congress.

The paper does a superb job of looking at what "declare war" meant in the 17th through early 19th centuries and why the "formalist" theory of the war power - that the President is free to wage war as he sees fit and that Congress' ability to declare war only changes the formal state of relations between two nations and triggers certain legislation at home - doesn't make any sense and falls under its own contradictions.

If we held to this construction of war powers today, much of the consternation this blog has expressed regarding the war power would be moot.

 

Amar’s Bill of Rights: Our First Amendment – Religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ....

The freedom of religion is one of the most cherished and most fundamental of American bedrock principles. One would have to look far and wide to find an American who would advocate support of a particular religion or sect by the government or, more still, would support the interference by the government in the right of a person to practice and observe -- or not -- his own system of belief. George Washington summed it up for all of us when he wrote to the United Baptist Chamber of Virginia in May of 1789:

 

Every man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshiping the Deity according to the dictates of his own conscience.

But these vague boundaries of the First Amendment's two complementary religion clauses -- the Establishment Clause and the Free Exercise Clause -- are about the only things regarding the line of separation between State and religion that Americans do agree on. For while these are indeed complementary clauses (one cannot exist without the other), they are also clauses that live in constant tension, striving over against the other to gain dominance. Peace and balance can only be maintained in one <i>not</i> gaining dominance over the other.

This tension did not exist in the Framers' original conception of the First Amendment, however. Amar makes clear their expectation that federalism would inform the interaction of State and religion, not the federal Constitution:

 

The establishment clause did more than prohibit Congress from establishing a national church. Its mandate that Congress shall make no law "respecting an establishment of religion" also prohibited the national legislature from interfering with, or trying to disestablish, churches established by state and local governments. In 1789, at least six states had government-supported churches -- Congregationalism held sway in New Hampshire, Massachusetts, and Connecticut under local-rule establishment schemes, while Maryland, South Carolina, and Georgia each featured a more general form of establishment in their respective state constitutions. Even in the arguably "nonestablishment" states, church and state were hardly separate; at least four of these states, for example -- in their constitutions, no less -- barred non-Christians or non-Protestants from holding government office. According to one tally, eleven of the thirteen states had religious qualifications for officeholding. Interestingly, the federal establishment clause as finally worded most closely tracked the proposal from the ratifying convention of one of the staunchest establishment states, New Hampshire, that "Congress shall make no laws touching religion." (pp. 32-33)

The matter was simply excluded from Congress' Article 1, Section 8 list of delegated powers and left to the states. So, Amar argues, the establishment clause should not necessarily be incorporated against the states through the Fourteenth Amendment, as the rest of the First Amendment rights should be:

 

Incorporation of the free-speech clause against states does not negate state legislators' own First Amendment rights to freedom of speech in the legislative assembly. But incorporation of the establishment clause has precisely this paradoxical effect; to apply the clause against a state government is precisely to eliminate its right to choose whether to establish a religion -- a right clearly confirmed by the establishment clause itself. (pp. 33-34)

Our federal establishment clause is the American equivalent to the 1648 European Treaty of Westphalia that established religious policy as a local matter, so the question presents itself - how can a requirement for locality on the matter be incorporated against the very localities empowered to decide the matter? In this way, the establishment clause is more akin to the Tenth Amendment, preserving states' rights, than the rest of the Bill of Rights (whether they primarily protect majoritarian rights against repressive government or minority rights against overbearing majorities).

Seen as protecting states' rights, it becomes easier to understand why the First Congress lumped the religion clauses and the rights to speech, press, assembly, etc all together in the First Amendment.

 

Thus our First Amendment opened with words suggesting an utter lack of enumerated power to regulate religion in the states or restrict speech -- "Congress shall make no law" -- in sharp contrast to the language of later amendments dealing with areas where Congress clearly did enjoy enumerated Article I power to "make ... law." (The militia and war power clauses of Article I gave Congress broad power over military matters addressed by the Second and Third Amendments; federal searches and seizures -- the subject of the Fourth Amendment -- clearly fell within Congress' explicit power to regulate customs and captures, among other things; and Article I expressly authorized Congress to "constitute tribunals," whose procedures werethe main subject of Fifth, Sixth, Seventh, and Eighth Amendments.)

The "Congress shall make no law" amendment's precise location in the original Bill is also quite illuminating. The orginal First Amendment on congressional size modified Article I, section 2; and the original Second amended Article I, section 6, dealing with congressional salary. Then came our "no law" amendment, glossing the Article I, section 8 catalogue of enumerated congressional powers by suggesting that Congress lacked power to censor expression or regulate state religious policy -- a kind of reverse "necessary and proper" clause.... When we remember that Madison originally proposed to interweave his amendments into the original Constitution rather than tack them on at the end, it makes sense that the order of amendments would track the order of the Constitution itself. (pp. 36-37)

John Yoo's problem with Elana Kagan

John Yoo has an op-ed piece in the New York Times today that takes Elana Kagan, President Obama's nominee to replace outgoing Supreme Court Justice John Paul Stevens, to task for her limited view of presidential powers. I have not seen enough to know whether I would vote to affirm Kagan's nomination were I a Senator (ah, the hubris runs deep this day...), but given John Yoo's constitutionally unanchored advocacy of a unitary executive, his professed problems with her view of inherent presidential authority is a big plus for her, in my opinion.

We have discussed the theory of the unitary executive on this blog before, and there is nothing wrong with that theory, per se. Indeed, it actually has a lot going for it as an interpretative grid for Article II. The problem, however, is with John Yoo's hijacking of the theory to push his extreme view of the presidency as a monarchical law unto itself. When Yoo argues that the President can commit the nation to war without congressional authorization, he runs into a constitutional wall. And when Yoo suggests that the President ignore laws that interfere with his "inherent constitutional powers", he has entered into a fantasy land where words on the constitutional page can not mean what they seem to imply.