Why the Government Is an Us, not a Them

"The fate of this question and America may depend on this: Have they said, we the States? Have they made a proposal of a compact between States? If they had, this would be a confederation: It is otherwise most clearly a consolidated government. The question turns, Sir, on that poor little thing--the expression, We, the people, instead of the States of America. I need not take much pains to show, that the principles of this system, are extremely pernicious, impolitic, and dangerous."     

                                 --Patrick Henry at the Virginia Ratifying Convention

       The first three words to the Constitution were actually highly controversial. A number of the delegates, and nearly all of the Anti-federalists, thought that they should read "We the States," which would have made the Constitution much more similar to the Articles of Confederation: a compact among sovereign states rather than a popular democracy.
        But Madison wasn't having any of it. The whole point of the Constitutional Convention, from his perspective, had been to transfer the sovereign power of government from the states to the people themselves. If the people adopt the Constitution, he argued in the Virginia convention, “it will be then a government established by the thirteen states of America. . . .The existing system has been derived from the dependent derivative authority of the legislatures of the states; whereas, this is derived from the superior power of the people.”
              If we learn only one lesson from the Founding of America--from the Declaration of Independence, the Constitution, and the lives of the Founding Fathers, it is that the government is an “us” not a “them.” Government does not do things to us. We, through the instrument of our government, do things. If we don't like the things that we are doing through our government, we are free to do other things. That's how this whole self-government thing works.
        There is, of course, a catch. "We the people" is a collective entity, not an individual will. Since we don’t always agree with each other, the “us” that is the government will sometimes act in ways we, as individuals, do not support. That’s how participatory democracy works in a large republic. Part of being a grown up, and a citizen, is accepting the fact that the democratic "we" will often not agree with the individual "I." When we insist on speaking of the government as something other than ourselves, we are actually saying that people who disagree with us do not have the right to take part in the democratic process.

       Let’s take the whole health care thing. Here are two facts that are not in dispute: 1) there are a whole lot of people in he United States who don’t like the Affordable Care Act; and 2) there are a whole lot of people in the United States who do like the Affordable Care Act. Public opinion polls vary widely about the percentages in each group, but that doesn’t matter much. The only poll that matters in our political system is called an “election.” And the presidential election of 2008 was won by a guy who told everybody that, if he won the election, his first priority would be to reform the health care system. He won the election with the largest Democratic Congressional majorities in a generation, and he did exactly what he said he would do. That's pretty much how democracy works.
       We miss the point badly when we try to guess what Thomas Jefferson and Alexander Hamilton would have thought about the individual mandate. That is looking to the Constitution as a religious text designed to provide us with a list of commandments to run our lives by. But the whole point of self-government is that we, the people, are the government, and we can act through that government to accomplish our goals. The Framers gave us a process that we can use to create the kind of society that we want to live in; they never meant to give us magic words to keep in a box. 

"E Plebnista" vs "We the People"

       The original Star Trek series occasionally went, more or less boldly, into politics--perhaps most notably in the “The Omega Glory” episode which first aired on March 1, 1968. In this episode, Kirk finds himself on a strange planet caught in the middle of a war between a tribe of Asiatic village dwellers called the “Khoms,” and a group of wild nomads called the “Yangs.” (“Yankees” and “Communists,” get it). The Yangs are mostly barbarians, but they do evidence a (surprisingly familiar) past culture in their use of talismanic  “worship words” such as “Freedom,” “Liberty,” and “Justice for All.” 
        The greatest of all Yang worship words—known as the "E plebnista"—can only be spoken by a chief. In the dramatic climax (which does not explain why the Yangs speak English and carry around American flags), Kirk resolves the great conflict by recognizing that E plebnista is actually a corruption of “We the People” and giving the Yangs a good dose of high school civics. 

       Gene Roddenberry’s here point is worth remembering: when the Constitution is made the subject of adoration, and when its key passages are converted into acontextualized proof texts, we end up with a ridiculous form of ancestor worship instead of a participatory democracy. We ignore the flesh-and-blood Founders by converting them into two-dimensional deities and their ideas about self-government into a prescriptive list of commandments. “We the people” becomes “E plebnista.”

       For me, a sign that somebody has gone well down the E plebnista road to is the tendency to talk about the government as a “them” and the American people as an “us.” This is common on both sides of the political spectrum these days, depending on whose ox happens to be getting gored. 

       If we can learn only one single lesson from the Declaration of Independence, the Constitution, and the lives of the Founding Fathers, it is that the government is an “us” not a “them.” But since we don’t always agree with each other, the “us” that is the government will sometimes act in ways we, as individuals, do not support. That’s how participatory democracy works in a large republic. When we insist on speaking of the government as something other than ourselves, we invalidate the right of people who disagree with us to take part in the democratic process.
       We miss the point badly when we try to guess what Thomas Jefferson and Alexander Hamilton would have thought about the individual mandate or the top capital gains tax rate. That is “E plabnista” thinking, or lookin to the Constitution as a religious text designed to provide us with a list of commandments to run our lives by. But the whole point of “We the people” is that we are, well, the people. The Framers gave us a process that we can use to create the kind of society that we want to live in; they never meant to give us “worship words” to keep in a box. 

 

                

I Think Scott Walker is a Jerk; and I Hope the Jerk Wins Big

The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.” (Federalist #62)

          I don't like Scott Walker. I think he has been a disastrously bad manager who has allowed his state to become become a three-ring circus. And his union-busting in Wisconsin has nothing to do with fiscal responsibility; going after collective bargaining is a ploy to attack a Democratic power base and increase the chance that Republicans will be elected in the future. He has done a great disservice to his state by presenting this as something that has anything to do with balancing budgets. I think he is a colossal jerk, and I really hope that he wins.

           I want the jerk to win, not because I think he is better than the guy he is running against. I think he is much worse. However, I believe, fundamentally, that recall elections are, absent major felonies, very bad things. Furthermore, I believe that the recall madness sweeping Wisconsin during this election cycle is based on seriously incorrect assumption—one that is quickly becoming an article of faith among Americans across the political spectrum. All evidence to the contrary, we believe that our leaders are not responsive to the will of the people.

            What the current debt crisis shows us, however, is exactly the reverse: that our leaders are excessively responsive to the will of the people. And this is a problem because what the people want is more stuff than they are willing to pay for. When people give us stuff and make us pay for it, we get mad and throw them out of office. When people take away our stuff because we can’t afford to pay for it, we get mad and throw them out of office. But when people give us stuff and don’t make us pay for it, we give them power and let them keep it as long as they want. An understanding of how to turn this characteristic into a governing philosophy, I believe, was Ronald Reagan’s most enduring gift to the American way of life. Run up the debt.

             Fiscal responsibility is a good thing to talk about during an election, but it has never actually been a particularly good political strategy. Most people who are really serious about it never get elected; and the few people who do get elected and try to deal with it usually get thrown out of office with all of the subtlety of a mob hit. Deficit spending, on the other hand, is a great political strategy. It gives us(or at least seems to give us) exactly what we want: free stuff.

            We now seem to be groping towards a national consensus that the debt is too high and that we need to do something about it. Wonderful. But there is no such consensus on what to do, and both parties show every willingness to wrench every short-term political advantage from whatever the other side tries. When Democrats suggest raising taxes, Republicans go off the deep end and call them socialists; when Republicans suggest deep entitlement cuts, Democrats take to the air waveand scare senior citizens. The next election is already shaping up to be the ugliest contest of scare tactics and demagoguery since, well, the last election.

            We all know that this is disgusting, immoral, and counterproductive. But they wouldn’t do it if it didn’t work. The great tragedy of a democracy is that it gives us the government we deserve.

            But in the rush to blame Democrats, Republicans, Obama, the Tea Party, and every one  else in Washington for the mess that we are in, the vast majority of Americans have steadfastly refused to place the blame where it belongs: squarely on their own pampered shoulders. For years, we have been rewarding politicians who give us stuff and don’t make us pay for it. And we have been punishing anybody who tried to do otherwise. Why would we expect that they would act differently now?

            Hopefully, Walker will win tomorrow with a big enough margin to prevent the recall election from becoming a standard tactic to use against politicians who raise taxes, cut spending, negotiate with the other side (not that the Walker did any of this—it’s the principle of the thing), or otherwise engage in activities that ignite “violent passions” and tick off “factious leaders.” It will be impossible to expect politicians to act like grown ups if they can be fired at any time by a collective temper tantrum. 

       

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?

Newt Is Not a Slobbering Idiot; Why Is He Playing One on TV?

         I am no fan of Newt Gingrich. I think he is arrogant, ambitious, reckless, solipsistic, and utterly devoid of a moral center. I do not, however, believe that he is stupid. Nor do I consider him insane. Why, then, has he taken one of the stupidest, craziest public positions of any serious presidential candidate in recent history?

         I refer, of course to his statement in last week’s debate that sitting judges should be hauled before Congress to justify their legal opinions, his follow-up opinion that the president and congress should be free to ignore court decisions that they don’t like, and yesterday’s promise that he would send Federal officials—U.S. Capital Police or U.S. Marshals—to arrest members of the judiciary whose opinions he disagreed with.

Gingrich’s attack on the federal judiciary is so far out of the mainstream that it was labeled “outrageous” by Ann Coulter and “frightening” by Bill O’Reilly. Let me say that again: Ann Coulter called Newt Gingrich outrageous. Could this possibly get weirder?

So what’s up? Is a former speaker of the house with a doctorate in history from an actual college really suggesting that America start arresting judges for exercising their judgment? Would he really be willing to risk the biggest Constitutional crisis since the Civil War in order to protect the “right” of religious Texans to say a meaningless, non-denominational prayer once a year at graduation ceremonies? Could he possibly be that stupid or that crazy?

I don't think so. That Gingrich has turned to such rhetoric, I think, tells us a lot about how he views his position in the Republican field. He has a large lead now, but it is the same large lead once held by Michelle Bachman, Rick Perry, Herman Cain, and Donald Trump—and this is simply the result of a cause in search of a rebel. To beat the better-funded, better-organized, and more-respected Mitt Romney for real, he absolutely has to consolidate this 35% or so of the Republican electorate behind him. And many of these voters really are crazy.

One of the things that they are the craziest about is the Supreme Court. A brief tour through the la-la land of far-right Constitutional history—via books such as Mark Levin’s Men in Black: How the Supreme Court is Destroying America (2006) and Andrew Napolitano’s The Constitution in Exile (2007)—can show us exactly what the people who control Gingrich’s fate have been taught to believe. They think that

·       the Supreme Court seized the power of judicial review in a “counter-revolution” led by Alexander Hamilton and John Marshall, making every subsequent judgment on a law’s constitutionality an illegal act on the court’s part.

·      the Supreme Court has no legitimate power over state laws at all, only over conflicts between states or between the states and the federal government.

·      the court has used the “commerce clause” of Article I to invade—intentionally and with malice aforethought—the civil liberties of all Americans.

·      the entire federal judiciary is made up of atheists who hate God and religion and have eliminated any trace of religion in the public square.

·        since the days of Franklin Roosevelt, the Supreme Court has been the declared enemy of the American way of life and is now the most powerful of the three branches of government.

I am not making this stuff up. A substantial portion of the extreme right believes everything on this list (responding to the historical and Constitutional flaws in these books constitutes the penultimate chapter of my forthcoming book That’s Not What They Said!). And while I strongly suspect that these are not the voters that Gingrich would like to be courting right now, they happen to be the only niche not currently being filled by a more attractive, less historically adulterous candidate.

To understand why Newt Gingrich, who is not an idiot, is sounding so much like an idiot, we have to consider the race that he is running right now. He is not yet positioned to run against Barack Obama, or even against Mitt Romney. Those are later games in the series. Right now, he has to finish off Michelle Bachman, Rick Perry, Ron Paul, and Rick Santorum to become the only viable “Not Mitt Romney” in the race. 

And in that particular four-way contest, there is simply no such thing as too much crazy. 

Making a Liar out of Madison: The “McConnell Plan” and the Separation of Powers

“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”— James Madison, Federalist 48

          Over the last few weeks of budget negotiations, we have seen partisan bickering raised to an art form. We have seen factionalism within one major party destroy a potential compromise and demagoguery from the other party destroy almost any hope of a negotiated settlement. We have seen legislators use their power over government borrowing to press for unreasonable concessions from the President, and we have seen a President use the threat of a veto to thwart the will of the people, as expressed in the most recent Congressional elections. 

         We have, in other words, seen the government work exactly as the Founders designed it.

          Government is supposed to be messy. It was designed to be contentious and inefficient. One of the clearest things that comes through in the Federalist Papers is that we are supposed to have a hard time changing big stuff. This is because the Constitutional design sets different interests against each other in an infinite variety of combinations, requiring constant negotiation, revision, and compromise. Madison especially believed that power had to be diffused through a very elaborate system as a check on the natural ambitions of human beings:

 Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. (Federalist #51)

          Madison’s gist here—which became a central design element of the Constitution—is that power will always seek more power, and that pretty much everybody in any branch of government can be counted on to want to increase their own power at the expense of others. The entire Constitutional system is built around this assumption.

          This means that the system can handle any amount of partisan bickering and obstructionism. That's what it was built for. What it cannot handle, however, is one branch voluntarily giving up power to another branch because it fears the political consequences of exercising that power. The way the system is designed, you are supposed to want more power than you have, but you absolutely have to be willing to exercise the power that you've got. Otherwise, whoever is willing to take responsibilities that nobody else wants will end up with the power as well and have a clear path to dictatorship.
          The current Congress, however, appears more than willing to protect Americans from its own failure to govern by transferring to the executive branch the responsibility (and therefore the power) to make politically difficult decisions. We saw this last month in the vote to condemn the US mission in Libya (the symbolic vote) while, at the same time, caving completely on the issue of paying for it (the meaningful vote). As a result, the mission in Libya continues, and the executive power to commit troops without a Congressional declaration of war remains unchallenged. 
          While Congress frets and fumes about the War Powers Resolution, nobody has ever pursued a lawsuit about it long enough to let the courts weigh in on its Constitutionality. Nobody wants a clear Supreme Court victory giving Congress back its authority to declare war would--least of all the members of Congress, who would then have to start exercising the tremendous responsibility of doing so. Better to take a purely symbolic vote against the action in Libya and then abjectly refuse to take responsibility for that belief by actually doing something about it. 

          Given this dynamic, nobody should be surprised about Mitch McConnell’s plan to prevent America from defaulting on its debts and triggering another global financial crisis. The essence of the plan is simple: Congress transfers the responsibility for the debt limit to the President and gives itself a veto only if 2/3 of the members of both houses can agree (which, of course, they never will). The debt ceiling gets raised, America keeps its AAA bond rating, Obama takes the heat, and the Republicans can faithfully report back to their core constituents that they “voted against raising the debt ceiling”--even thought they will have done nothing of the sort. 

          The plan is good politics, and I suspect that it, or something very similar, will win the day. But it is bad statecraft. It represents yet one more legislative concession of power to the executive branch, not because the President wants the power, but because the Congress does not want the responsibility. And that is a very bad reason to make a liar out of Madison.