Why We Should Care that 279 Members of Congress Have Promised Not to Do Their Jobs

"For heaven’s sake, you have Grover Norquist wandering the earth in his white robes saying that if you raise taxes one penny, he’ll defeat you. He can’t murder you. He can’t burn your house. The only thing he can do to you, as an elected official, is defeat you for reelection. And if that means more to you than your country when we need patriots to come out in a situation when we’re in extremity, you shouldn’t even be in Congress."—Former US Senator Alan Simpson, “I Guess I’m a RINO”

       When the current moment becomes history, I suspect that historians will be as baffled as I am by the fact that 238 members of the House of Representatives and 41 Senators—all but three of them Republicans—have signed something called the “Taxpayer Protection Pledge” in which they promise that they will never (ever, ever) cast a single vote to raise taxes. Given that “the power of the purse” is one of the most important duties entrusted to Congress by the Constitution, the pledge they have taken amounts to a solemn oath not to do their jobs.

       Let me be very clear here. I am not saying that the job of a legislator is to raise taxes. It is to determine, by the facts available at a given moment, what the appropriate rate of taxation should be. This is not an easy job; it requires a painstaking balancing of different interests and potential consequences, which is why legislators get large staffs, big salaries, and choice parking in downtown Washington DC to deliberate about such things. Nothing shuts down the purpose of a deliberative body quite like an a priori declaration that you will not, under any circumstances, deliberate.  

       Anyone making an absolute and unconditional promise not to ever vote to increase taxes must, of logical necessity, accept one of the following statements: 1) that there will never ever ever come a time when raising the tax rate is in the best interest of the country; or 2) that something (i.e. campaign contributions, the political support of the anti-tax lobby, etc.) is more important than doing what is in the best interest of the country.

       Since no politician will ever admit to believing the second statement (as true as it might be), the only possible grounds for signing the tax pledge is that one believes that there is NOTHING that could EVER justify a tax increase, which is clearly an insane position to take, our not being gods or having access to the future and all.

       The Founders—especially Alexander Hamilton—thought about this stuff quite a bit, and they tried hard to design a system that would be capable of responding to anything that the future might throw at them or us. In Federalist #34, Hamilton argues that the government’s power to tax should be virtually unlimited because the issues requiring a government response are impossible to anticipate:

We must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.

          What is the “Taxpayer Protection Pledge” if not a unilateral decision by an individual elected official to limit the government's capacity to raise revenue for an indefinite period of time? It assumes, not only that the government does not need more revenue right now; it assumes that the government will never, under any conditions, need more revenue. Such an assumption as Hamilton clearly understood, is an abdication of the Constitutional responsibility to govern.

       Alan Simpson has apostatized from the Republican Party to tell us that now would be a good time to consider raising taxes--and cutting spending--in order to reduce the deficit. There are some fairly compelling reasons to listen to him. The federal tax rate is currently at its lowest point since the end of World War II, and, not coincidentally, the deficit is higher as a percent of GDP than it has been since 1947. Serious economists on both the left and the right agree that we cannot manage the debt without raising taxes, and Americans support modest tax increases for deficit reduction by a 2-1 margin. And yet, as Simpson acknowledges, we will almost certainly not see any Republicans voting to increase taxes any time in the near future because “Grover Norquist won’t let them.”

       The important question, now, is ours: why do we keep sending people to Congress to do a job that they have signed a written agreement not to do?

How Madison and Jefferson Occupied Wall Street

          Here is a quick, one-sentence quiz: what was the first major American political crisis after the implementation of the Constitution? Here’s a hint: it destroyed the relationship between Alexander Hamilton and James Madison, who had collaborated on the Federalist Papers and helped to secure the ratification of the Constitution. Here’s another hint: it involved a lot of people who were upset about the way that wealthy financiers—about one percent of the population—pursued huge profits at the expense of the other ninety-nine percent.

Give up? Well, here’s the story:

         In 1789, the new American government had a debt of about $54 million, most of which was contracted to finance the Revolutionary War. Alexander Hamilton, the new Treasury Secretary, spent his first months in office devising a plan to pay this debt off. Everyone agreed that the debt to foreign countries—$12 million dollars, mainly to France and Holland—had to be paid in full. The trickier part of the debt involved the $42 million in government bonds that had been issued to American citizens, largely in payment for military or other service. Hamilton proposed that the holders of these bonds be paid the full value, plus interest, of the bonds that they held.

         The problem was that most of the hardworking soldiers and suppliers who originally accepted the bonds had since sold them to speculators, often for pennies on the dollar. Madison, who was one of the most influential members of the House of Representatives, felt that it was unfair to allow speculators to reap huge profits simply because they had the money to buy up the bonds when they were cheap. He proposed an alternative plan that would require the government to seek out the original holders of the bonds and give them a share of the profits. “Madison sought no total reduction in the payments due from the government,” explains his biographer Ralph Ketchum. “Rather, he proposed a redistribution of the payments, to benefit those who had suffered from the government’s earlier defaults, and to scale down the profits of the speculators who had gathered the depreciated certificates.”^[i]    

         The House of Representatives overwhelmingly agreed with Hamilton, who felt that redistributing the income from the bonds would be injurious to the credit of the United States. Madison’s proposal was defeated on February 22, 1790, by a resounding vote of 36-13. Thomas Jefferson was en route from Monticello when the vote was taken, but when he arrived in New York City a week later, he quickly became incensed at what his Treasury colleague had done. This controversy, as he later wrote in his “Anas,” set him on a course of opposition to Hamilton’s financial programs for the rest of his time in the Cabinet:

It is well known that, during the war, the greatest difficulty we encountered was the want of money or means, to pay our soldiers who fought, or our farmers, manufacturers & merchants who furnished the necessary supplies of food & clothing for them. After the expedient of paper money had exhausted itself, certificates of debt were given to the individual creditors, with assurance of payment, so soon as the U. S. should be able. But the distresses of these people often obliged them to part with these for the half, the fifth, and even a tenth of their value; and Speculators had made a trade of cozening them from the holders, by the most fraudulent practices and persuasions that they would never be paid. In the bill for funding & paying these, Hamilton made no difference between the original holders, & the fraudulent purchasers of this paper. . . . Immense sums were thus filched from the poor & ignorant, and fortunes accumulated by those who had themselves been poor enough before. Men thus enriched by the dexterity of a leader, would follow of course the chief who was leading them to fortune, and become the zealous instruments of all his enterprises.^[ii]

         The debt-payment debate drew the battle lines that would define the next generation of American politics. Hamilton stood firmly on the side of the investors, and of the undeniable market principle that a thing belongs to whoever purchased it. No good American capitalist today would suggest anything else. 

         Madison and Jefferson, on the other hand, insisted that the government not help the rich get richer at the expense of the poor. And they didn't particularly care what Adam Smith, or Ludwig Von Mises, thought about the matter.

     

---

[i] Ralph Louis Ketcham, James Madison: A Biography, 1st pbk. ed. (Charlottesville: University Press of Virginia, 1990). 308.

[ii] Jefferson and Peterson, Writings: 666-67.

Why Obama Is Not, Actually, Destroying the Constitution: Thoughts on Federalist #31

“Not every intrusive law is an unconstitutionally intrusive law.”

—Bush appointee Jeffrey Sutton, writing for the the United States Court of Appeals, Sixth Circuit, in its June 29, 2011 decision to uphold the Individual Mandate clause of the Patient Protection and Affordable Care Act. 

The last few years have been a good time for whoever does press clippings for the US Constitution. Polling data suggests that the percentage of people who have heard things about the Constitution is greater today than it has ever been. People know, for example, that the Constitution was designed to prevent the Federal Government (which had become out of control under the Articles of Confederation) from encroaching on the rights of the states. They know that it was never intended to give the National Legislature the power to collect taxes. And, most important of all, they known that (last summer's misguided appellate decision aside) the Patient Protection and Affordable Care Act is patently and completely unconstitutional. Read the blogs and the letters to the editor; America is chock full of people who have heard things—often a whole bunch of things—about the Constitution.

The problem with relying on what you have heard, of course, is that whoever you heard it from probably has an interest in not telling you the whole truth. Constitutional law is actually somewhat complex; it’s a bit more involved than reading a sentence or two out of context and imagining that you know how it fits within a 200 year old legal tradition. But our political system is not friendly to complexity. We don’t want to be lectured by professors, we want to be entertained by clowns; and all clowns know that they have to keep things simple. But the process of simplifying complicated arguments often results in the loss of crucial distinctions. Tolstoy’s War and Peace contains over 500 distinct characters. The Wikipedia entry for the novel gets by with a few more than 20.   

One very important distinction that is being lost in the current political climate is the distinction between a “bad idea” and an “unconstitutional action.” The term “unconstitutional” has been thrown around on both the right and the left (but, let’s be honest, in this historical moment it is coming more from the right) like a casual greeting. Bestselling books now proudly trumpet the President’s secret “blueprint” for subverting the Constitution one cherished principle at a time. And the charge that Obama is bent on “destroying the Constitution” (here, here, here, here, and here) is made so frequently in the conservative media that it has become an article of faith for millions.

When we hear exactly what the President is doing to destroy our beloved document, however, the answers are, quite frankly, a little bit silly. Obama, we hear

·      Is appointing powerful policy advisors called “czars” without the advice and consent of the Senate (when Supreme Court Justice Antonin Scalia—nobody’s liberal activist—was asked about this at a Congressional round table, he responded, to the chagrin of the Tea Party activists present, simply that  “the President is  entitled to hire advisors”).

·      Is bent on appointing only liberal activist judges to the Supreme Court (as if the Constitution did not actually give presidents the power to appoint whomever they want to the Supreme Court, subject to Senate approval).

·      Has rammed an unpopular health care law down our throats in direct violation of the constitutional prohibitions on an overarching federal government (despite the fact that the health care law is currently working its way through the court system—like thousands of other laws have in American history—and will ultimately either be declared Constitutional and enacted, or declared Unconstitutional and rejected according to policy that the Constitution sets up for resolving precisely these kinds of issues). 

The assertion that these policies are wrong because they are unconstitutional is, BY THE TERMS OF THE CONSTITUTION ITSELF, the wrong argument. Call in radio hosts and bi-weekly columnists are simply not given the power to issue binding statements about the Constitution. Even television hosts are not given this power. In the system that Messers Beck, Levin, Blackwell, and Klukowski supposedly like, the power to determine the constitutionality and unconstitutionality of a presidential or legislative action resides in the court system—which is where all of these issues, especially health care reform—will ultimately be decided.
 

In the mean time, the people who don’t like these ideas owe it to the rest of us to give real reasons for their opposition. "X is unconstitutional" is quickly becoming, not so much an argument itself, but a way to avoid an argument--a way, that is, to avoid doing all of the things that arguers are supposed to do, like presenting evidence, establishing criteria, appealing to shared values, and persuading people to a coherent point of view. Arguing persuasively that something is a bad idea can be difficult. Reflexively calling what you don't like unconstitutional, and saying that your opponent hates America, is much easier on the mind.

Nobody understood the difference between a bad idea and an unconstitutional one better than Alexander Hamilton, who was especially eloquent on this topic in his series of Federalist Papers on taxation (30-36). Though it does not come through clearly in the recent Glenn Beck “translation” (or, more accurately, simplification) of the Federalist Papers, Hamilton felt that the Federal government should have almost unlimited power of taxation. He makes this case primarily in #30 and #31 (both of which somehow ended up on Beck’s cutting room floor). In one particularly important passage, Hamilton addresses the issue of “double taxation,” in which the federal government taxes something that the state taxes as well. Look carefully at what he says:

As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it INEXPEDIENT that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances.

Had this passage made it into the Beck translation, it might (I hope) have come out sounding something like: “It is entirely possible that the federal government may want to tax something that the state government is taxing too. And this could (or could not) be a really bad idea; but it would not be an unconstitutional one.”

However, when Mr. Beck actually does speak of “double taxation” in his book, this is what he says:

While the Founders argued in favor of the federal and state governments’ each having the power to tax, they were convinced that neither would tax the same thing at the same time. But now? Plenty of items, from gasoline to alcohol to tobacco, have federal excise taxes along with state sales taxes. In addition, of course, there’s income tax, which is often charged at the federal, state, and sometimes even local level. These concurrent taxes were never part of the Founders’ plan. (360)

This is wrong in the “that’s-clearly-not-what-he-said” sort of way. The Founders had a clearer vision, and a better plan, than Glenn Beck gives them credit for. Hamilton clearly foresaw the possibility of double taxation —and he was not at all “convinced that neither would tax the same thing at the same time.” Quite the reverse, he thought that they probably would. And his answer to the problem still applies to many, if not most of our informal Constitutional debates today: “this is a political issue, not a Constitutional one, so take your fight outside where it belongs.”

This, ultimately, gets to my biggest problem with the Beck-Levin-Coulter-Limbaugh-etc.-etc.-etc. assertion that President Obama (or anyone else) is “destroying the Constitution.” It presents the Constitution as a remarkably fragile document and the Founding Fathers as bumbling idiots who couldn’t figure out that some forms of government would sometimes try to overstep their bounds. It turns out, though, that they had it covered all along.  And actually respecting the Founding Fathers means having faith that the system that they designed will work—as it generally has worked in the past—according to its design specs.

One of the most ingenuous aspects of the Constitution is that it sets up a process for adjudicating disputes about its own meaning. That system—we call it the judiciary—is fully capable of resolving all of the current disputes about what is, and what is not, Constitutional. We should register our opinions, of course, but we also owe it to the Founders to allow their system to do its work. And while it does, the rest of us should get busy arguing about what is, and what is not, a good idea. 

Publius O’er a Bottle: The Dangerous Hypocrisy of Glenn Beck’s "The Original Argument"

"Today, the series of newspaper articles that ran from October 1787 through August 1788 is known as the “Federalist Papers,” and, let’s be honest, the mere mention of them usually results in most people yawning. They’re written in terribly hard-to-read eighteenth-century English, they reference things that most of us have never heard about, and, let’s just say it: They seem irrelevant."
          —Glenn Beck, The Original Argument

"Even today, some people would prefer that you not read the Federalist Papers. Instead they would rather contort Publius’s words to serve their own narrow ideological ends. Some people have tried to rewrite history and the intent behind the Federalist Papers to create a false portrait of our Founding Fathers . . . . Those who are honest in their love for America should have no issue with anyone reading our founding documents and drawing their own conclusions. It’s people who want to speak in place of those documents that we should be wary of."
          —Glenn Beck, a few pages later

           I have been hovering in and out of high moral dudgeon ever since I saw on Amazon that Beck was releasing a version of the Federalist Papers in “updated American English.” As one who has actually read the papers in their original form, struggled with their ideas, and come away from the process enriched, I am deeply suspicious of any attempt to “update” the language. In my opinion, the language does not need to be updated. The eighteenth century is not the fourteenth century, and the Federalist Papers are not The Canterbury Tales.  English has not changed so much since 1788 (just a few years before Jane Austen) that it needs to be translated into something new.

The English of the Federalist Papers is perfectly readable the way that it is. This is not to say that the Federalist Papers are easy to understand. They are notoriously difficult, as Beck acknowledges. But it is their arguments, not their language, that make them difficult. The authors were well educated political theorists who expected their readers to understand difficult concepts and abstract ideas. The difficulty of the prose flows from the difficulty of the ideas, not their antiquity; difficult concepts often require difficult language. That’s how hard stuff works.

Beck, I should point out, did not create the “translation” itself. For this, he relies on the efforts of his collaborator, Joshua Charles, a piano performance major at the University of Kansas who (he informs us in the introduction) completed the translation project during his senior year of college and managed to get them into the hands of Beck, whom he considered a political idol.  Charles tells us that he undertook the “translation” because, when he read the original work, he felt “frustration trying to grasp what Publius was saying.” (I would simply point out here that most really good translators have sufficient familiarity with the origin language to understand what the author is trying to say already. We trust translators because they have an expertise that we don't, not because they share our linguistic frustration.) 

But, to be fair, both Josh Charles and Glenn Beck acknowledge that they are not scholars of 18th century literature. Their project is motivated by love (they suggest), not scholarly expertise.  For better or worse, however, I do happen to be a scholar of 18^th century literature, and, in that capacity, I spent this evening comparing the “translation” with the original. Beck claims in his portion of the introduction that  “great care was taken in the translation process to update Publius’s words in the most accurate, nonideological way possible.”

This is simply not true. While great care may well have been taken, the result is 1) as ideologically narrow as one would expect from Beck; and 2) wildly inaccurate in its choice of modern words for eighteenth-century concepts. In almost every case that I have been able to identify in which an eighteenth-century definition of a word has changed substantially over the past 200 years, the “translation” uses the modern (inaccurate) cognate rather than a modern word or phrase that captures the original meaning. As a translation, it is simply inept.

            Let me give just one example, which comes from the updated version of Alexander Hamilton’s Federalist # 1 and contains egregious errors in both ideology and language.  Beck begins this essay (as he does all of the Federalist Papers that he reprints) with a summary “main point” that readers are to get from the original work and a “relevance to today” section that explains how this main point applies to America in 2011. In this case, the main point and contemporary relevance go like this:

The Message: America is special because our rights come from God, but those rights must be protected by a central government that serves the people.

Relevance to Today: The Founders believed America to be exception [sic.], but some students are now being taught “multiculturalism,” the idea that no culture or country is superior to or better than another.

According to Beck and Charles, then, Federalist #1 is about American exceptionalism—the fact that America was chosen by God to be something different, and better, than other nations (the required contrapositive to "the message" is that other countries are not special because their rights don't come from God). This is a core component of Beck’s own political philosophy. And whether or not it was a core belief of the Founders is certainly a debate worth having. We can say with some certainty, however, that there is ABSOLUTELY NOTHING in Federalist #1 that argues for, supports, or even hints at American exceptionalism—and especially not divine favor—as Beck understands it. Don’t take my word for it please. Read it here or here or one of the thousand or so other sites on the web that archive the original document. 

          The quote in the original text that Beck cites for this interpretation is from the first paragraph:

The subject [the importance of the debate over the Constitution] speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world.

So, how do we get from the statement that the current debate about the constitution is important to America and to the rest of the world (because a lot of other countries are watching America to see what happens) to “America is special because our rights come from God”? I admit that I can’t quite trace the logical leap here (since this is all that Beck quotes from the original text), but I suspect it has something to do with the way that Mr. Charles translates the first paragraph of Federalist #1:

The importance of this discussion is clear—nothing less than the Union itself, the safety and welfare of all of the states, and the fate of a nation, one which is in many ways the most interesting in the world, is at stake.

  

          The clear mistranslation here is the word “interesting.” To the modern reader, something is interesting if it has an inherent interest-producing property, such as a three-headed raccoon or a ten-thousand-year-old bar of soap. But this is a relatively recent connotation of the word. In the eighteenth century, "interest" meant something more like "stake in"--the way that we might use the word when talking of an investment property. Thus, the correct “translation” (if one were really serious about updating the eighteenth-century language) would be something like “. . . the fate of a nation—an outcome that, in many ways, other nations feel that they have more of  a stake in then they do in the fate of any other nation in the world.”
            To point out what Hamilton made abundantly clear in the latter part of the first paragraph: America is not "the most interesting country in the world" because it is exceptional. Rather, he believed that the fate of the 13 colonies (which were not yet "America" or any other country) was something that other countries had an "interest" in (felt a stake in) precisely because this fate was NOT "an exception," but a rule--an experiment whose results could be repeated because it was based on universal, and not exceptional, principles of human nature.

            So, though I do not quite understand how Beck gets “America is special because our rights come from God” out of his own translation, I think we can say, without any qualification, that there would be no way to pull such a statement out of the actual text. It just isn't there. (Did I mention you could read the original online in places like this). The original must be simplified for the ideology to slip through the Founder’s actual thoughts.

These sorts of mistakes pervade the Beck/Charles version of the Federalist Papers. They are the very predictable result of not being up to the intellectual demands of translation. Clearly, Charles, Beck, or somebody on Beck's staff looked up all of the hard words in The Federalist Papers and provided a gloss. That's the easy part. It is the words like "interesting"--words that seem easy but whose meanings have shifted over time--that plague this project from beginning to end. Understanding these words requires more than three years of piano performance at the University of Kansas. It requires substantial experience with primary documents: letters, journals, works by the same author and others of the same time. It requires (dare I even say such a thing) scholarship.
         But even if Beck had employed every pianist in Kansas and really did make the text of The Original Argument accurate and ideologically neutral, it would still not be a "translation," which the Federalist Papers do not require, but a simplification. And herein lies the problem. Simplifying “the original argument” is an inherently ideological task. The proposition itself says to people, “the words of your Founding Fathers are important, but they are too hard for you to understand. You mustn’t try to read them yourself; you would just hurt your head. Let us make them easy for you.” I do not consider myself a conservative, but if I did, I would consider such a notion something akin to treason--a betrayal of the very principles for which "originalism" is supposed to stand. As a left-leaning centrist with a healthy respect for the Founders, I simply consider it a really bad idea.


Part II of this post is here: What Federalist #1 Actually Means (and Why Glenn Beck Had to Change It)