The better part of federalism

I'm fascinated by federalism schemes and blueprints to divide power in ways that (1) respect local decision-making, (2) lodge power to address problems impacting the whole at the federal level, and (3) protect freedom and power distribution through systemic checks and balances. These concerns have been at the root of this blog's call for repealing of the Seventeenth Amendment. This is an important topic, not only for the cause of freedom in the United States and within the American constitutional order, but also so humans can learn how to scale politically. While I am an American patriot and love our constitutional system of government, I am also a human who shares this one earth we humans have with 7 billion other people. To survive, I believe we will need to form some kind of loose world government that respects the diversity and freedom of various nations while enabling humanity to solve problems that loom on a global scale and threaten the species (climate change and nuclear proliferation, to name two obvious ones).

 The consistent challenge with all federalism structures is the irresistible gathering of power at the federal (top) level, forcing one-size-fits-all solutions on localities that are very different from one another in geography, history, culture and customs. While this consolidation of power plagues the Federal Republic of Germany as well, Germany's implementation of federalism is unique. (At least I am not aware of any other federal state or treaty organization that has replicated it.) According to The Constitution of Germany, legislative power is concentrated in the federal Parliament, but federal law is largely enforced through the German states (the Länder). This "executive federalism" would in theory ensure that the enforcement of laws is balanced with the local needs of the states and the people, respecting local sovereignty and freedoms. While the states have apparently been divested of most legislative power (for example, taxes for the states are completely set at the federal level), the states have direct involvement in the German federal law-making process through the Federal Council (Bundesrat). State representation in the Federal Council is composed of state government delegations, often led by the state's prime minister. (For German readers who disagree with this assessment, I would love to hear your perspective in the comments.)

While I would not replicate the consolidation of all legislative power into the U.S. Congress, I think the German model has some lessons for the United States. Even if the U.S. did not amend its Constitution to change the composition of the Senate, devolving enforcement of U.S. federal laws through the state governments rather than independent federal agencies could provide a missing check on federal overreach. Through executive federalism, there is a good chance that the U.S. could gain the benefits of a common federal framework to problems of an interstate nature while avoiding the oppression of one-size-fits-all solutions. This would also trim the federal bureaucracy, which is extremely bloated (there is no way the United State government needs over 2.8 MILLION civilian workers), unresponsive (who can possible respond to 80,260 pages in the Federal Register), and has of late assumed delusions of grandeur that it is authorized to make laws.

The Arbiter of Righteousness

Governance and the Bible

I was reading an article by Derek Penwell, "9 Arguments From the Bible Fundamentalists Should Have to Make" about conservatives inconsistent use of the Bible to support some of their policies. The basis for the article is, if the support for a ban on same-sex marriage comes from scripture than why isn't the Bible used as the authority for other conservative policies. That naturally leads to a discussion on how to use the Bible in an effort to govern.

 

Controlling The Word

Generally I didn’t take his list as just a simple list of questions but a way to discuss the problem with the concept of picking and choosing which passage to take ‘as gospel’ if you will.  Let’s think back 50 years to when even mixed-race marriages were illegal where the idea same-sex marriage being legal would have been considered outrageous.  Basing the prohibition of same-sex marriage on a literal reading of a given Biblical passage invites the question of why not take the whole book literally, if it so aligns with society’s understanding of right and wrong than why even have a legal code other than the Bible?  Of course I’m being a bit facetious there but it is because I want to take the argument to its logical if extreme conclusion.  This makes it easier to illustrate that if we allow that some passages are not meant to be taken literally but rather as parables then we have to face the issue of selecting a person or group who gets to decide on which portions are to be exalted above the others for such treatment, and woe to those who disagree with their choices.  At the heart of it, the modern movement for Biblical inerrancy, seeing as it has only been around since the late 1800’s, is less about God’s Will than it is about control over God’s Word.  The Roman Catholic Church spent many centuries developing a consistent theology around how to apply the Bible to life on planet Earth, they didn’t attempt in all that time to claim that every single word should be taken literally.  They understood that it was a teaching tool whose power was in making people see how it could be a guide for situations that Abraham, Moses, or Matthew could never have imagined.  Since the Reformation there has been a movement to replace Catholic teachings with Protestant ones, basically an effort to replace Rome as the power deciding what God’s Word means, wishing to usurp the Pope’s theological monopoly.  In the beginning it was done in a piecemeal fashion such as Martin Luther’s Theses nailed to the church door but as each new group wished to separate from those with whom they disagreed they naturally become more and more separated theologically from the teaching of Rome and it would be logical to see how the outcome can be groups that want to disallow any interpretation because it affords too many loopholes for the unrighteous to claim piety while still living a sinful life, thus the only way to insure no interpretation is a literal reading.  There is nothing inherently wrong with a group wanting to adhere to a literal reading but it becomes a problem when that group then wants to claim it is the one true way and wish to enforce their beliefs upon the rest of society, while that is to be expected it does not excuse them from picking and choosing the passages that they want to apply; if the Bible is to be taken literally then it is everything or nothing because once you pick winners and losers you are back to allowing for human interpretation.

 

The Bible and Slavery

I’ll be honest, the Bible’s position on Slavery is one that I really have a hard time with and saying that it doesn’t condone slavery is letting it off the hook.  There are so many places where it is quick to declare sin like eating shellfish or wearing clothes of mixed fibers but there are no qualms about allowing slavery even for the devout.  There is not even a mention such as ‘it is wrong but it happens so live with it’ somewhat like ‘give unto Caesar what is Caesars’.  If you take the Bible literally than the taking of a slave is just as acceptable as forcing a rape victim to marry their rapist.  I find it hard to believe that the author(s) of the Bible would overlook such a fundamental concept when it would have been easy for Jesus to say, “No follower of mine should hold slaves.”  Whenever He spoke, he wasn’t making law but making general claims over the definition of what is right and what is wrong thus it is almost a certainty that no one back then found slavery as a concept to be morally wrong.  He spoke out about the moneylending in the Temple but was silent on slavery.  In all the litany of proscriptions and restrictions slavery is not considered to be something that disqualifies one as righteous, so much so that a claim that the Bible does not condone slavery has such weak supporting evidence as to be non-existent.

 

Righteousness

Slavery can also point out a theological quandary too.  Let’s separate it out this way with a set of statements and questions.

• The Bible doesn’t declare holding slaves as a sin, thus a righteous man may have slaves.
• If we believe that the Bible is inerrant than must we also believe that slavery is acceptable to God?
• Over millennia humanity comes to believe that slavery is wrong.
• In a country that outlaws slavery can a righteous man have slaves and remain righteous since there is no Biblical prohibition?
• If it is no longer possible to be considered righteous solely for having slaves than from what authority does righteousness come, and who decides?
• If the Bible doesn’t claim that slavery is wrong than do we have no authority to claim otherwise?
• If we conclude that slavery is wrong than how can we claim the Bible is the sole arbiter of righteousness?
• If we conclude that the Bible is the sole arbiter of righteousness than how do we support a claim that slavery, not being banned by the Bible or otherwise declared sinful, should be outlawed?

And there we have the problem on the horns of a dilemma.

 

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.