Of Rule by Experts and Rule by Law

 

Photo by Adam Szuscik on Unsplash

In the 1990s I was part of a congressional delegation to Argentina, when the Argentine economy was growing strongly and steadily, and inflation was low, the currency convertible 1-for-1 with the dollar.  Trade barriers were being lowered, commerce was booming.  I recall asking Argentines what could possibly darken what seemed to be a bright future.  They were quick to reply:  “Here in Argentina we have no rule of law.  You can have no confidence in getting justice from the courts.”  Not long after, political shenanigans to reward one part of the electorate by a transfer of wealth from others threw the Argentine economy into turmoil.  Momentary good policy is a tough path to walk across bogs of inadequate legal safeguards.  Freedom has rested upon rule by law rather than rule by men.

Fundamentally, the American Revolution was an assertion of the rule of law.  Most of the Declaration of Independence is a litany of abuse by the English rulers.  The Revolution was intended to take power away from man and men and rest it upon laws and rights, soon to be secured by the world’s first written Constitution.

The Progressive Movement, which thrived over a century ago, was a retreat, aggressively stepping backwards to the rule of men as an impatient alternative to the rule of law:  the Rule of Experts.  Their new view—really a very old view dressed up in modern rhetoric—was that there are benevolent experts, to whom we can safely yield our governance, for such understand the process of modern government better than ordinary people do.

It sounds akin to the ancient theory of Divine Right of Kings, that the worldly monarchs are chosen by God and invested with greater wisdom and perspective than the average man and woman.  To their benevolent expertise and fatherly care was entrusted the governance of the rest of us.

Today’s benevolent experts are invested by their colleagues with varieties of credentials certifying their expertise.  Not very democratic, they make no secret of their impatience with the Congress and other constitutional brakes on arbitrary authority.

Just as not all men are always just, not all men are reliably wise.  The American Founders thought to address this problem by the separation of powers, dividing political authority among three branches in the Federal Government and the States.

The current regulatory program rests heavily on the notion that benevolent experts should be entrusted with authority for the big questions and increasingly smaller questions, too.  It has evolved by progressively engulfing the constitutional separation of powers, merging legislative and executive—and often judicial—authority in “independent” regulatory agencies headed by unelected officials.  The unelected federal regulator writes the details of mandatory regulations, charges violators, assesses guilt, and applies penalties.

Professedly efficient, it does not work well in practice.  First, the regulators are not dispassionate umpires, limited to calling the balls and strikes.  They are also players in the game, having their own set of particular interests and incentives that they take care of first.

Second, reliance on benevolent experts assumes what is an unproven, undemonstrated level of knowledge, insight, and forecasting skills.  Regulators are not dumber than the rest of the population, but they are no smarter either.  It is just that life is too complex and the society of the living is proving too much to be run by any designated group of humans and their computers.

A third flaw is mission creep.  Even if the tasks are too great or require too much knowledge, insight, foresight, and other skills in unachievable degree, the regulators still take them on, with each failure met with calls to increase resources and power of the agency.  

An example is the Federal Reserve (commonly called the “Fed”), created with a specific and rather narrow purpose, to make enough funding available for the banking system in times of financial stress.  Before long, the Fed gained control of monetary policy and the practice of controlling interest rates.  Later, it was tasked with promoting maximum employment.  In 2010 the Fed’s role in supervising banks was enlarged to supervising any financial business considered to be systemically significant.  Each augmentation has drawn the Fed away from its narrow, objective task. 

This expansion of authority affects every business and every home.  The Federal Reserve is the world’s biggest rigger of interest rates.  Its prolonged policy of keeping short-term rates at or slightly above zero has resulted in penalizing all savers and those who live off of their savings, transferring trillions of dollars of wealth to borrowers, the biggest borrower being the Federal Government.

A partial but simple solution toward strengthening the rule of law and reducing exposure to the caprice of men would be returning to elected representatives the making of laws.  It is a messy process, exactly the messy process that the Founders intended to preserve freedom from the encroachment of arbitrary and oppressive government.  The regulators, which are theoretically part of the executive branch, should be limited to the duty of implementing the laws that the elected and accountable representatives make. 

If Congress were required to write the rules and mandates, and delegate only the implementation, the mandates of government would be circumscribed by the exposure of a legislative body held directly accountable for what it has wrought.  It is easy for legislators to complain about bad regulatory decisions, but too often, these are decisions that Congress never should have delegated to regulators in the first place.

Of Platitudes and Political Attitudes

 

Photo by Tim Mossholder on Unsplash

I am naturally optimistic.  So you will understand that I rejoiced to see several of my friendly neighbors, who sometimes disagree with me politically, place signs in their yards supporting positions consistent with the views of free market liberty-loving constitutionalists like myself.  That would appear to bode well for candidates in this election who also tend to trust markets, liberty, and constitutional rights.

I will confess that to some the signs might read like a public creed of platitudes.  Perhaps they are intended to present an impressionist attitude of some kind.  Here are the phrases, written in bumper sticker style.  See what you think.

To begin with, who could argue with the obvious truth that “Black Lives Matter”?  I personally know no one who does not naturally embrace the idea.  I do notice that those who in published media lionize the eponymous organization laying claim to the title reveal little material interest in the lives of black police officers, black small business owners, or unborn black children.  That may be why the lady running for Congress in Baltimore’s 7^th Congressional District emphasizes that “all black lives matter.”

Next on the signs is the phrase, “No Human Is Illegal.”  That is surely the case in the United States as long as it remains a nation of law and order.  Things that some people do are illegal, but enshrined in the Declaration of Independence and the Constitution is the concept of individual worth.  The notion that people themselves can be illegal is reserved for socialist governments and monarchies, where large portions of the population can find themselves illegal.  That is a crucial reason why the American founders broke from the monarchy and why applying socialism here terrorizes lovers of liberty. 

Third on the signs is the bromide, “Love Is Love.”  Surely it is.  Perhaps it appears because love is the core principle of many religions, such as Christianity, which rests on two commandments (also taught in the Old Testament):  Love God, and love your neighbor as yourself.  As Jesus taught, on these rest “all the law and the prophets.” (Matthew 22:40)  Jesus also taught that with the breakdown of law and order, “the love of many shall wax cold.” (Matthew 24:12)  I am thrilled that churches are being allowed to open again so that they might continue to teach their doctrine of love.

The phrase, “Women’s Rights Are Human Rights,” is given fourth billing on the signs.  That is absolutely true, even if it is violated in many parts of the world.  I am reminded, by my neighbors who have come to the United States from such nations where women’s rights are routinely violated, why I am grateful that my daughters and granddaughters live in a country where their rights are real and protected. 

I am grateful that the signs include what is in danger of becoming a meaningless cliché, “Science Is Real.”  Our nation was midwifed by the enlightenment, a rejection of the medieval notion that scientific verities were determined by government or ecclesiastical agencies and votes of councils.  We are all indebted to courageous scientists who stood alone and refused to accept any scientific debate as “final,” who asked more questions that often led to better answers that have made mankind healthier, wealthier, and more flourishing.  May our nation of freedom encourage the continuation of that story. 

The penultimate phrase on the signs is the prosaic declaration, “Water Is Life.”  I remember Barry Goldwater, Senator from Arizona, explaining to a skeptical Senate the importance of water rights.  There would appear to be a longtime tug of war in our government agencies about the importance of water management.  As with many important issues, relying upon our federal system of state and national interaction is most likely to give us the best management answers.  National mandates are likely to leave local communities dry. 

The final phrase on the signs is the catchall, “Injustice Anywhere Is a Threat to Justice Everywhere.”  An unlimited aspiration, mankind has wrestled with it from the earliest times.  As this is to be an ongoing struggle of which we should not tire, the question is how best to proceed?  Our founders asked that question.  They recognized that arbitrary governments were the worst offenders.  The structure of liberty they established has fostered the multitudinous avenues for virtue that have not ceased to make progress in combating injustice.

I cheer such display of worthy attitudes of support for our nation’s growth in liberty.

By the way, there is a website where you may go to purchase these signs, $10 each.  Free enterprise is wonderful.

Of Presidents and Derelicts

Barack Obama is no fan of the Constitution.  He has been known to criticize it for its focus on limiting government, for telling governments what they can and cannot do.  He prefers a Constitution that focuses more on telling governments what they should do, at least telling governments to do what he would like, including seeing to the “redistribution of wealth,” or what he calls elsewhere “redistributive change.”

Of course, that is a mischaracterization.  Not a mischaracterization of Obama’s views but of what the Constitution says.  It does limit government, but it also gives government specific responsibilities and the power to exercise those responsibilities.  Article I, Section 8 provides a very clear list of the federal government’s duties.  It is noteworthy that those enumerated responsibilities and powers are in the Article that establishes the Congress.  The list includes such things as providing for the common defense, borrowing and paying government debts, regulating foreign and interstate commerce, establishing standards for weights and measures, and so forth.

There are plenty of other provisions that limit the powers of the government and how it operates.  The Constitution is a balance of governmental duties within a structure intended carefully to limit the government.  As a limited government our Republic has prospered.  It has struggled either when its duties were neglected (as in the days of President Buchanan, who did nothing while he watched state after state rebel from the Union) or when the limitations have been eroded (as we have witnessed through much of the twentieth century and in the first 14 years of the twenty-first).

The President has specific powers and duties, too, nearly all of which are carefully linked with the role of the Congress.  For example, while the President does not make the laws—Article I, Section 1 gives “All legislative Powers” exclusively to the Congress—the President is authorized to make proposals to Congress and has the authority to veto legislation (but not change it) that Congress has approved.  Once an act of Congress becomes law, the President then has the explicit obligation to, “take Care that the Laws be fully executed” (Article II, Section 3).  

Note the words, “fully executed”.  The President takes an oath to fulfill those duties, and nowhere in oath or Constitution is the President authorized to execute the laws only as much as he likes or agrees with them.  Once something has become a law, the President may not set aside this or that part of the law or decide that he will only enforce the law so far.  His obligation is to take Care that the laws are fully executed.

Average Americans may not like this or that provision of law, but we are not at liberty to ignore any law that applies to us just because we do not like it.  The President is not exempt from that common responsibility of all citizens, either. As the chief government executive, who sought to hold his high office of public responsibility, he is even more obligated not only to obey the laws but to execute them, fully.  The President may not make the laws, he may not amend the laws, he may not change the laws, and he may not disregard the laws.  His duty is to execute the laws, and when he does not he is derelict in his duties. 

This is all in accordance with the important division of labor, the separation of powers that the Founders put into the very structure of the Constitution to combat the tendency of all humans to abuse power once it comes into their hands.  By dividing the power of government among three separate but coequal branches, dividing legislative power even further between House and Senate, and yet again separating government power between federal and state governments, the Founders went to clear and elaborate lengths to create checks and balances. 

Under the American system of government no branch, no person, no group of people in government, are to be able to do very much on their own without getting the other elements of government to go along.  Where they are not able to agree, where there is no consensus, for the safety of our freedoms government is prevented by constitutional law from moving forward unless substantial consensus among the different branches can be reached.  Those checks and balances again and again, throughout the more than two centuries of our Constitution, have forced the very human people in government to revisit their differences and come to terms with one another, however much they may disagree and be disagreeable.  There is safety for you and me in that.  And it helps keep our Union together, repeatedly forcing our leaders (and the parts of the nation that they represent and whose authority they exercise) to work with one another, like it or not.

Recently, President Obama has expressed impatience with the Constitution’s checks and balances.  After all, he personally, in and of himself, embodies an entire branch of government.  The other branches, Congress and the courts, have many different people with a messy variety of ideas.  President Obama complains that Congress cannot decide what it wants to do as quickly as he can.  In his view, why wait? 

By design, Congress of course has something of a multiple personality.  It is a gathering of elected representatives, reflecting the diversity of views among the people of the nation.  Appropriately, it takes time to build a consensus that accommodates those views, as it should.  But President Obama cannot wait.  He sees the need to accommodate no ideas other than his own.  He has decided that on this issue or that—today it is immigration laws—there is a limit, defined by himself, as to how much time Congress can take to consider things.  When time is up, he, the executive branch, will take the matter into his own hands, and pretend to the authority to do it.

His tool of choice today is to abjure his duty to execute the laws fully and instead to execute them partially, just to the extent and manner that suit his own desires, as he engages in another round of redistributive change.  That he is endeavoring to violate rather than execute our national, founding law, and his constitutional oath of office, apparently does not trouble him.  It is the Constitution itself that troubles him. 

But from where does he think he gets his authority to do anything.  When he breaks the Constitution, does he not break his very authority to act in the office that the Constitution created?

Of the Soviet Union and the European Union

Do you remember when the Soviet Union disappeared?  Do you recall how and why?  I hope that Vladimir Putin does.  An accompanying question that needs to be considered is, why is Ukraine so attracted to the European Union?

To answer the first question briefly, we have to turn our attention to the final days of the old USSR, then led by Michael Gorbachev.  Russia, the largest member of the 15 “Republics,” was led by Boris Yeltsin.  Under Yeltsin’s leadership, Russia chose to withdraw from the Soviet Union.  He said that Russia was weary of carrying the burden—economic, military, and otherwise—for the others.  Russia just left, and after a brief try there was nothing that Gorbachev could do to make Russia stay.  Without Russia, there was not much left to the Soviet Union, and the other members said “enough,” too.  The Soviet Union was gone with hardly a whimper and little lamented except by the class of privileged communist leaders.

The word is that current Russian President, Vladimir Putin, wants to put the band back together, that he wants to reassemble the old Soviet Union, with the coercive influence of the Russian military as his chief tool.  Not that he wishes to recreate the communist paradise of Lenin and Stalin.  His vision reportedly reaches back to the great days of the czars—though presumably without the trappings of monarchy and royalty.  Putin is through and through a Russian, so he wants to recreate a Russian Empire.  Continuing along the path that he has set out, the path of creating an empire of the czars after the mode of the Caesars, he is unlikely to succeed.  Been there.  Tried that.  Did not work.

It is hard to understand why Putin would choose that model.  Why would he want to deal himself and the Russian people a losing hand?  The Russian-dominated Soviet Union, assembled by the Red Army, failed.  It did not fail because the Soviet leadership did not try hard enough, or was stingy in expending resources, or showed too little military muscle, to hold it together.  It failed because—as Yeltsin recognized—it was costing too much to hold it together, draining too much life from Russia.  The USSR was a bankrupt model (morally and financially) for building an empire, especially for keeping an empire.  There were not enough hands to hold on tight to everything and everyone.

Perhaps Putin figures that without the burden of communism a strong Russian government could hold and control successfully where the commissars could not.  In other words, he would reject the model of Soviet communism and embrace the model of a modern non-communist authoritarian regime, like the Third Reich.  That one did not work so well, either.

There is a model available, tried and tested, that would work.  It would unleash the power and greatness of the Russian people and at last make the most of the amazing resources of the Russian land.  The results would exceed by far even the exaggerated dreams of czars and commissars.  Does Putin have the vision?

I refer to the model of freedom, only briefly known to the Russian people, only occasionally offered in limited experiments, experiments that were always wildly successful, surprising only to the governmental leaders who tried them and then abandoned them, frightened by the successes.  Applied boldly, we would see a Russian miracle that would change not only Russia but the world—all for the better.  Free men and women, operating in free markets, protected by the rule of law enshrining individual rights, erected on the foundation of a constitutionally limited government, would be a model offering limitless growth and prosperity.  Moreover, the variety of peoples and cultures in a land as vast as Russia could be recognized and accommodated, attracted and joined together, within a strong but genuine federation, united by the ties of thriving national markets, reassured by the rule of law supported by a just and independent judicial system to safeguard fundamental rights.

A dream?  Perhaps it is, but a realistic one.  This offers the answer to the second question.  Why is Ukraine attracted to the European Union?  Does not the European Union offer just such an option?  Is not the economic prosperity and individual freedom—and room for national expression—found in the European Union obviously different from the offering of today’s Russia and the memory of the old empire?  Is it not fear of the specter of the czars and commissars that haunts Ukrainians? 

Was not the creation of the European Union once just such an impossible dream as a truly free and just Russian federation?  For hundreds of years the fathers and mothers of the peoples of the European Union made war, large and small, upon each other, French against Germans, Germans against Austrians, Austrians against Poles, Poles against Germans, and round and round again.  Today such wars among these same people are unthinkable.

Assembling such a federation takes time, patience, and skill.  It may be too tempting for an impatient Putin to rely on his military muscle to make an empire.  Perhaps for a brief time he could succeed by force to reassemble much of the old Soviet Union as a greater Russia.  The greater challenge, the one that has proven impossible, is to hold such an empire together by force. 

Such empire of force would very soon prove ungovernable, with rebellions large and small flaring up constantly.  The brutality exerted to try to hold it all together would make the task of unity even harder and progress nigh impossible.  It would drain away, once again, Russia’s strength in an unending effort, just as it eroded the strength of the USSR.  Maintaining greater Russia by force has always proven a burden far greater than its worth, in the long run a losing effort that has collapsed in a weaker and vulnerable Russia.  World War I was one example, the end of the Cold War yet another.

The people of Russia—along with its neighbors—can have a better and brighter future.  A Russia built on individual freedom, free markets, free peoples, would unleash a new era of prosperity.  Russia would become a beacon of wealth and success, with all Russians participating.  Instead of Russians leaving to find their future, they would return to their homeland.  If Japan can prosper on islands scarce in natural resources, imagine what free Russia could do, rich in resources, harnessed efficiently by the discipline of the markets.

Instead of an empire of force, a free and flourishing Russia would draw its neighbors to it as the European Union beckons to them today.  No longer facing Russian fists, neighboring nations will come knocking at the door, eager to associate with Russia voluntarily, attracted by opportunities for betterment.

Of course, that is the theory.  In practice, the more that Russia seeks the path of freedom and abandons the chimerical lure of military conquest, it will succeed.  Russia would then achieve its real greatness in the world, the only way that it ever really could.

Of War and Virtue

One hundred fifty years ago the United States remained divided in a brutal war of rebellion.  Rather than unusual, such convulsions are typical in the establishment of representative republics.  It does not come easy for a population new to a republic to embrace in practice the idea that matters of life and wealth should be resolved by votes.  It seems that the age old recourse to arms and blood has to be tried again a time or two before people, who have only experienced more abusive government, come to accept that ballots and representation, enshrined in the rule of law, are a better way of deciding a society’s important issues.

One hundred fifty years ago, in 1864, the people of the young United States were still learning that painful lesson.  But the instruction was nearing its end.  Back in July of 1863, at Gettysburg and Vicksburg, the outcome of the war became inevitable.  The rebels of the southern states were going to lose, constitutional government of the United States was going to succeed.  The only chance for the rebels would be if the loyal people of the nation lost their determination to persevere to reunite the nation and reaffirm the constitutional republic.  Often that seemed in the press to be an iffy question, but in reality the republican will remained strong.  The hundreds of thousands who sacrificed life and limb in the field of war, in an overwhelmingly volunteer army (the number of drafted soldiers remained relatively minor), testified to that determination.

In the winter of 1863-64 U.S. soldiers in the field reenlisted in large numbers.  Throughout 1864, and into the Spring of 1865, many thousands more would die, but the battles were becoming increasingly futile for the rebel cause, little more than adding to the destruction and suffering that rebel commanders were pulling down upon themselves and their fellows and families in this national lesson in self-government.

For the rebel soldier, experiencing defeat after defeat to his regiment, his corps, or his tattered army—with only occasional respites and temporary successes—it all may have felt pointless.  The high and growing rate of desertion from rebel armies in those days suggests so.  The historian comes to this point in the conflict and is tempted to describe the remaining rebel heroics and gallant but failing defenses as futile, the casualty lists a bloody tally of worthless and wasted sacrifice—particularly for so ignoble a cause as breaking up the best form of government on the earth at the time.

From the perspective of the rebel “cause” it was pointless, the continued bloodshed and destruction a burden for which the rebel leaders—in the rebel government and at the head of the rebel armies—will surely have to give an accounting before the Judge who weighs the doings of nations and those who lead them.  Does that mean, therefore, that the daily struggle of the individual rebel soldier was meaningless?  His effort could not change the outcome, only affect in some small way its overall cost.

And yet, throughout 1864 and to the end of the war, there were meaningful and often pitched battles fought on every field of action.  The battles to which I refer echo a passage from The Book of Mormon written almost two thousand years before, describing an ancient American people after a very long war:

But behold, because of the exceedingly great length of the war between the Nephites and the Lamanites many had become hardened, because of the exceedingly great length of the war; and many were softened because of their afflictions, insomuch that they did humble themselves before God, even in the depth of humility.  (Alma 62:41)

War, on a very personal level, appears to accelerate moral development.  Individuals become more virtuous or more evil more quickly than they might under more peaceful conditions.

I believe that for the individual rebel soldier, as for perhaps every soldier, the real battle was his own, and in the end it was the most important battle with the most long-lasting consequences.  Abraham Lincoln understated that the world would “little note, nor long remember” his speech at the dedication of the Gettysburg National Cemetery, though he perhaps correctly predicted that the world would never forget the great battle fought there. 

In the full scheme of things, in terms of what really matters in the eternal worlds after this temporary one is rolled up and its purposes completed, the individual battles fought by each soldier on each side will be recognized as far more important than the whole Battle of Gettysburg.  The battle of armies is a temporary one.  The battle fought by each soldier, whether he exercises virtues or chooses vices, is the more permanent, the one that has never ending consequences.  The battles of freedom were fought in recognition and preservation of these more important personal struggles we all have.

In the battles of 1864 and 1865 of the American War of the Rebellion the rebel soldier could not change the outcome of the war.  But in each case his own personal triumph or defeat was there to be etched into his character more permanently than the scars of bullet and saber in his flesh.

As my son has often reminded me, everyone who fought in the Civil War died.  And all of them lived.  So must we all die, and yet we will all live again where there is no more death.  By the time each of us leaves mortality, each must face and fight his battles, the ones that really matter far above those recorded in the history books of the world.

Of Limited Freedom and Limited Government

I live and work near the belly of the beast, and I can report that these days he is not happy.  His belly is rumbling.  He has eaten more than he can digest.  Watch out, he may throw up.  He is already belching.

The federal government is not working, we know and see.  Not only is it not working as was intended when it was created by the States, it is not working as designed and over designed in subsequent years.  The federal government cannot manage the national parks, the welfare system is breaking down, the national transportation infrastructure takes in more money and yet the signs of dysfunction and decay on roads, rails, and bridges are increasingly apparent.  Banks are regulated with thousands of rules while the banking industry continues to shrink:  we have fewer banks today than we did in 1891, and their share of the financial markets has been dwindling for decades.  So much of what the federal government touches turns to rust and ruin.

Yet the federal government keeps reaching out for more, undeterred by its failures.  The Environmental Protection Agency aggressively imposes restrictions on the air we exhale, the Food and Drug Administration announces plans to control the fat in our foods, the new Bureau of Consumer Financial Protection has decided what kind of mortgages lenders can make and what kind of people can get them (acknowledging that many who qualify today will be outside the boundaries of federal standards in 2014).

You can augment this brief sampling of a longer list from your own experiences.  This is nothing new, other than perhaps in frequency and intensity.  If there is a virtue in Obamacare it may be that its unworkability and its increasingly universal hurt are demonstrating broadly what many have been feeling individually.

Demonstrating the hurt is not the same as redressing it.  The beast, however ill, will not cheerfully surrender its prey.  During the debate over ratification of the Constitution, one commenter, writing in the Philadelphia newspaper Independent Gazetteer (October 12, 1787), observed, “People once possessed of power are always loth to part with it”, and then warned that the Feds could not be counted on, by their own volition, to do “any thing which shall derogate from their own authority and importance . . . or give back to the people any part of those privileges which they have once parted with”.  If that was predictable in 1787, it is painfully apparent today.  Perhaps the clearest example is how the Washington power elites have exempted themselves and their cronies from the application of Obamacare while continuing to inflict it on the rest.

And yet, Obamacare is the hurt that keeps on hurting.  People will not get over it or get used to it.  Its pain and suffering will be felt again and again with each new illness, every new tax, as its strictures reduce availability, affordability, and quality of wellbeing.  Wave after wave of new harm will come, astonishing its supporters and augmenting the ranks of its victims until it is addressed.

Americans, much like other people, will put up with much before they are roused to action.  Unlike for many other people, our Constitution gives us avenues for action.  The Constitution embodies the concept of continual redress within the rule of law to make appeal to extremities outside of the rule of law unnecessary and unthinkable, so long as the principles of the Constitution retain their vitality. 

The core principle of the Constitution is limited government, designed to protect the growth and expansion of human freedom.  Increasingly, for about a century, the “progressives” in Washington have turned public affairs on their heads.  Human freedom has been the focus of limitation, while government enjoyed constant growth and expansion.  The end seems approaching, either of the ability of government to manage what it has taken on, or perhaps (and hopefully) when the holders of power can no longer convince enough people that it is all for their own good.  Limitation on government may return in vogue as promises of government solutions to feed the beast ring ever more hollow.

The Philadelphia writer of 1787, whom I cited above, was a critic of the Constitution, because he believed it impossible that the power gathered in by the federal government could be wrested from its hands.  I remain hopeful that it still can be.  Nothing else will work.

Of Dysfunction and Governing the Nation

It seems that no more evidence is needed. The establishment press, normally loath to criticize the federal government, has at last become even fond of proclaiming that “Washington is dysfunctional,” although they do so as if announcing something worthy of being “news.” The Senate has not passed a budget in some four years. The House of Representatives regularly passes budgets that the Senate will not even consider. The President—who has no budget-proposing role under the Constitution—proposes budgets that are routinely disregarded while declaring his intent to govern without the Congress. At the same time, people feel more alienated from their government than ever before, in ever increasing numbers considering the nation headed in the wrong direction, regardless of the party in control of national policy.

In the most recent demonstration of the Washington breakdown, the Congress this year failed to pass the annual appropriations bills before the current ones expired. Or, better said, the House passed appropriations bills, the Senate demurred, and the President announced that he would veto any appropriations legislation that offered either more or less than what he wanted.

The establishment press, amplifying executive branch efforts to promote panic and stampede the public, announced that “the government would shut down,” and yet 83% stayed open. Some prominent public operations (that do not require any appropriations to operate) were closed at the President’s bidding, like the Lincoln Memorial and the various veterans and war memorials, but the President seemed to have enough money to travel to various campaign-style rallies to complain about the government shut down. There was national confusion and consternation.

Perhaps what is news is that there is, at last, general agreement, and the President has helped demonstrate, that the federal government has become dysfunctional, by which we may mean, not doing what it needs to do. I also notice that this condition has not been getting any better. In addition to the recent, visible indicators, I would offer some longer-term measures.

Economic growth is depressed and has been declining for decades; employment is also down, with millions leaving the work force. Government welfare rolls have expanded dramatically, suggesting that a very large portion of the population is either not able to take care of itself or has surrendered its responsibility to do so. The federal balance sheet approaches ever closer to insolvency. To avoid being gloomy and doomy, I will not recount dismal education trends, eroding family formation patterns, the precarious condition of national infrastructure, or our worsening international relations (with allies and opponents).

Yet, the federal bureaucracies are far larger, taxes—visible and hidden—are higher, red tape has become ubiquitous, and federal subsidies have fallen behind promises even as they outdistance the ability of the federal government to pay for them. If government is the solution, then why is more government not making things better?

How could this happen? Have we as a nation lost our ability to govern ourselves? Have “partisan politics”—as though something new rather than part of our national intercourse since 1796—frozen the ability to consider, set, and follow national priorities? Have the problems of modernity exceeded the ability of policymakers to resolve them?

A case could probably be made for each and all of the above explanations. I think, however, that they are all symptoms of a more fundamental problem, one recognized long ago, at the founding of the nation.

As early as 1787 the Founders recognized that a central government would not work for the United States. Even with just the original 13 states and 3 million people, the nation was too vast to be governed in detail from one capital. That is why they created a federal system, under which the few, truly national concerns—such as national defense, trade, international relations, national standards of measures and sanctity of contracts, preservation of freedom and the rule of law, together with the means to fund these activities—would be handled by the national government. All else was reserved to the States.

Note that I did not say given to the States. Remember, the States and the people in them created the national government. The States and the people in them gave to the national government its authority and power.

Today, the United States stretches across a continent and reaches to the isles of the sea, with over 300 million inhabitants. It is even more impossible than ever to govern from a single capital, by a centralized government. We all have seen the evidence, in addition to the growing dysfunction of Washington. Everyday, people all over the nation struggle with rules made by the federal bureaucracies, rules that are often nonsensical where people live and work and play, rules governing the volume of water in our toilets, the content of our children's food, the gasoline in our cars, the content of our communications, the form of our financial affairs, and many other elements of daily, personal life. Even worse, they have become too vast and complex to be administered faithfully or complied with loyally.

We could fault the executive branch bureaucrats who make them or the Congressmen and Senators who write the laws, but these people are no smarter or dumber than the rest of us, and just as well meaning. They just have an impossible job. No one can know enough to run so many things from Washington.

Consider the big issues that seem to have Washington all tied up in knots—in turn afflicting all the rest of us. The new national healthcare systems are breaking down even as they get started. National rules for farmers have Congress stuck over who should get subsidies and who should not. National tax plans designed to take from some to give to others divide the people into winners and losers. Environmental regulations impose costs on some in order to subsidize someone else. National education programs follow each other in rapid succession, each with a new and high-sounding name, none of which do much to stem the continued decline in education. And ever present with all of these national rules are unintended consequences that were not and probably could not be foreseen but which crush people’s businesses, destroy jobs, and disrupt lives.

These are all issues that the Founders never intended for the national government, issues that if governments should address at all should be left to State and local governments, where decisions can be made closer to the people who have to live with the results.

We have at hand a better, competent government, or at least its blueprint. It is found in the structure of our Constitution that created a federal system. Our Constitution is the recognition that only through a system that keeps governing as local as possible can a great nation exist in union and harmony.

What we are seeing play out before our very eyes is that our nation not only should not be governed by a central authority, but that it cannot be. The sooner we recognize that and return to the federal plan of the Founders the happier, and the sooner Washington will be able to function as it should for the benefit of all rather than frustration for all. The task is too big otherwise and doomed to failure. It will not be a pleasant failure.

(First published October 27, 2013)

Of Closed Governments and Coming Together

Battered and bruised and stretched and torn, our Constitution still has life in it.  One of its central principles is that no one person can do much by himself in Washington, for good or ill.  We are watching that play out in this year’s appropriations process.  We see that it is impossible for one man, the President, to make a new law.  It is similarly impossible for one House of Congress, whether Senate or House of Representatives, to do so alone.

Under the Constitution, all appropriations bills must originate in the House of Representatives, where they are given their initial shape and substance.  Next, the Senate must concur or amend.  If the Senate chooses to amend, the bill goes back to the House, which can either agree to the Senate amendment, disagree, or disagree with a further amendment.  If there is disagreement, representatives from House and Senate can meet to resolve those differences.  If they do and succeed, then each House, first one and then the other, passes the bill, after which it is sent on to the President.

It is still not a new law.  According to the Constitution, the President may not amend the bill that has passed both Houses of the Congress.  He can choose to sign it, making it a law.  It does not become a law unless he does.  He can choose to veto it.  In the latter case it goes back to the Congress, where it can only become law if both Houses override the President’s veto.

I lay this process out in some detail, because to listen to the institutional media and most of the pundits you might think that they have all forgotten, or never learned, how the constitutional process of making laws works.  It is not an easy process.  In fact it was meant to be difficult.  Some seem to wish it were easy, at least for enacting the policies that they favor.  They would wish to make one or more constitutional parties to law making redundant and of no separate account or purpose other than to do the will of their favorite other.  They should, instead, take comfort that it is easier to defeat policies that they oppose.

The genius of the Constitution for making laws is that it requires three separate parties of people, sometimes with very different views, to come together to make anything a law.  The Founders made it difficult because they were not very fond of new laws.  They knew that an abundance of laws could mean a scarcity of freedom.  And so it is today, but it has taken over 200 years to build up the awesome pile of laws that regulate so much of our lives, and yet it still is harder to make a new law than many would wish.

Our Constitution requires that a lot of people have to work together to make a new law.  When they do not, nothing happens.  That is why much of the federal government has run out of money and has “shut down.”  A new law is needed to appropriate the money for these shuttered parts of the federal government to open. 

They will continue to be without operating money until the elected representatives in the House and Senate and the President work together to make a new law.  The Constitution forces them to work together.  Nothing will happen until they do, whether that takes a day, a week, or longer.  The Constitution requires sufficient cooperation for law making.  For either House, or Senate, or President to be able to make laws without the other would impose the tyranny of one set of views over the rest.  The Constitution will not allow that.  The Constitution forces a meeting of the minds, either by persuasion or by compromise, or in practice some of both.

The Constitution is a beautiful thing.  I rejoice in it.  I can be patient for a while as it does its work and forces our elected leaders to come together.  The issue is not keeping parks open. The issue is preserving our freedom and our society.  The Constitution still has some power to do that.

Of American Exceptionalism and Our Chief Executive

Two colleagues and I recently had an Internet conversation.  The first brought up the question of American exceptionalism, wondering what it really was, in what it consisted.  Two of us responded with some ideas.  You may find the brief discussion interesting, as I did. 

I would note that this is a real discussion on a public forum.  While I have edited the segments down a bit, I have not inserted new material or changed any of the thoughts expressed.  I give only the first names of my two colleagues.  While this took place on a public forum, I did not ask them to repeat their comments here.

Neal:  American exceptionalism is demonstrated as American values and beliefs projected to the world with Washington, D.C. policies.  Therefore, American exceptionalism is arrogance. This is what I would believe if I allowed myself to accept conventional wisdom.  But I’m settled on understanding exceptionalism to mean that ordinary individuals doing extraordinary things, even beyond their own expectations.  And the reason why it is called “American exceptionalism” is because the country was founded on principles of liberty, freedom, and structures that were intended to defeat tyranny.  This was unique in the world and history at the time of the nation’s founding.

So I conclude that American exceptionalism is something that is not collective and is something that cannot be demonstrated by any policy that comes out of Washington, D.C.  American exceptionalism is something that can only be demonstrated by an individual.

I have trouble believing American exceptionalism was the deliberate intention of the Founders, because I see slavery in the Constitution.  How is it possible to reconcile the concept of American Exceptionalism with the tyranny of slavery?

Wayne Abernathy:  Neal, perceptive questions.  I think that when considering American Exceptionalism—and it is very real—you have to take modern Washington and collectivism out of the equation.  Our current collectivism, which is at the heart of much of what Washington does, is a throwback to what people came to America to escape. The basic idea of American Exceptionalism—which even preceded our independence and our constitution—was that this new land was a place where the worth of the individual, protected by the rule of law, prevailed.  While there were elements of those ideas in much of Europe, they struggled there against monarchy, class systems, and other means of imposing collective will on individuals.  The European ruling classes failed in their efforts to impose collectivist and class rules in North America, but they tried very hard.

I would dispute your point about slavery.  The U.S. Constitution did not create slavery.  It took the thirteen states and brought them as they were into a new foundational rule of law based upon individual liberty.  While slave states entered into that constitutional system and brought their slavery with them, they entered into a system that would not long tolerate slavery.  Before four score and seven years had elapsed most of the slave states recognized that if they stayed under the U.S. Constitution they would lose slavery through the operations of that Constitution, and they would lose it through peaceful means.  That is why they chose to try to leave the Union and defend slavery by force of arms.  The Constitution triumphed—or the people within that constitutional government did—and defeated both secession and the defense of slavery by force of arms.

All of those were elements of American exceptionalism. We risk American exceptionalism to the degree that we embrace the age old practices and policies of group rights, class structure, collectivism, and other policies that undermine individual liberty and the rule of law.

Honza:  As an immigrant, I always took American Exceptionalism to be what our first political generations meant it to be—the idea that we are not a collection of tribes or a particular trading depot that elbowed its way into nationhood so much as people united by a very specific set of ideas:  life, liberty, and the pursuit of happiness (including but not limited to property).

Contrast us to Saudi Arabia or any nation with an established faith, or even, arguably national countries like India or Germany, where group membership matters more than who one is.  That’s our genius, it’s why we perform, decade in and decade out, remarkably well compared to other places and why we’re always anxious, as we are now (thanks Wayne), that we’re becoming a nation where who one knows matters more than what one knows.

Neal:  Thank you guys for offering corrective perspectives on this wildly misunderstood idea of American Exceptionalism.  I first got interested when listening to Rush. I thought he was going to define it in a quick sentence, but there was a bunch of table setting.  But Rush gave us more establishment of context.  I was still not certain I had correctly grasped what he defined.  

A whole bunch of people use the phrase “American Exceptionalism” in a very wrong way, and I think it must require an individual effort to get yourself beyond the conventional wisdom meaning. We need somebody more eloquent than Obama to explain it to the American people.

Wayne Abernathy:  I don’t think that Obama believes in it.  He offers a lot of rhetoric—and policies—rooted in the idea that America is just like everywhere else, or where it isn’t it should be.  The United States was founded on the belief and vision that this was a place that could and should be different, that could break the patterns of oppression that had prevailed throughout history and all over the Old World.  By and large, the Founders succeeded, though it is a work in progress and is constantly challenged at home and abroad.

I think that it is that difference, that respect for the individual and for the rule of law, that makes us the target of ideologies of slavery, like the Islamists and the socialist tyrannies.  I am not sure that Obama recognizes that.

Neal:  Comparison to Saudi Arabia brings to mind a question I toyed with:  would the mundane act of a woman driving a car without fear of punishment be considered an example of American Exceptionalism?

Honza:  Neal, I think Wayne is correct. The Canadian rock band Rush (at first I thought you were talking about them rather than the radio host) is less likely to blame others’ poverty and repression on America’s prosperity and freedom than Obama is.  Obama hasn’t really thought about the idea of American exceptionalism, isn’t interested in it and just knows he’s against it without understanding it.

Of Claiming Good and Doing Bad

A very good book was published this month.  Ostensibly, it is about our economy and the recession.  It is actually about much more.  It is the first book about the current American economy written by a philosopher, and it is perhaps the best book I have read yet about all the recent unpleasantness.  Some might say that the economic trouble still continues, more like a long, slow convalescence from a serious illness than a healthy recovery.  For many whose financial condition stagnates, for those who have replaced a full-time job with one or two part-time jobs, for graduates who have a degree in hand but no work in the field for which they have trained, and especially for the millions who remain out of work, talk of an economic turnaround can seem like a mockery.

For those and others, Infiltrated, by Jay W. Richards, can help make some sense of what hit us.  The book does not suggest that there was a massive conspiracy to drive our nation into economic turmoil.  It explains how turmoil came nevertheless as national policymakers followed the prescriptions of people who claimed to be doing good but tried to cheat the laws of economics and markets to impose what they might call “benevolence” on the rest of us. 

It was their idea that in order to help more people own homes lenders should ignore such things as ability to repay a mortgage, strong history of employment and steady income, and having some equity in the value of the house so there would not be an incentive to walk away if prices dropped.  They also agitated for the government to expand its guaranties for mortgages to people with poor credit histories and loans where lenders cut corners.  And they badgered builders to keep building more houses. 

Their plans horribly miscarried, and yet those people have even more control over us and our economy today and are more able and determined to try again.  The recession, rather than educating and deterring them, has made them bolder.

I am reminded of what the late Louis Rukeyser, the very popular host of the PBS program Wall Street Week, wrote in the 1990s:

            Washington has been taken over by an impregnable mob of short-sighted, power-hungry megaclowns.

They try their worst to micromanage every detail of the economy, but succeed only in whipping the markets back and forth, up and down in spastic patterns.  They despise the gentler forces of a free market, which would moderate swings far more predictably.

(Louis Rukeyser, 1993 advertisement for his financial newsletter)

The people to whom I refer and whom Richards exposes in his book do not like the markets.  They trust themselves more and think that you should trust them, too.  They seriously do believe themselves smarter than the markets, and that is the problem.  No one, other than God, is smarter than the markets.  A large part of economic history, the tragic part, is a chronicle of the disasters caused when a small coterie of people are able to enforce their wishes and preferences on the rest of us in contravention of economic reality.  It never works. 

That was the story of the Great Depression, and it was entirely the story of communism, where whole societies were based upon the now well-proven fallacy that any group of people, no matter how smart or well intentioned, can gather sufficient data and know and understand enough to run a national economy.  It is just far too complicated, with billions of economic decisions being made by millions of people all day and all night long.  The markets make it all work, because the markets are the sum combined total of all of those economic actions and decisions interacting with each other.  No human five-year plan for economic control has escaped failure.

What is worse, as well intentioned as such people may start out, all too often, as Richards’ book exposes, their efforts not only fail to do what they set out to do, they fail to stay virtuous and instead  become enlisted in the service of private gain at the expense of the rest of us.  The Soviet system might have worked pretty well for the party owners of the dachas along the Black Sea but only by impoverishing the workers their leaders claimed to be serving.

Do not let yourself be put off that Richards is a philosopher.  His book is remarkably readable, one that you can take with you to the beach and actually enjoy, and feel that you have learned something—a lot—in the reading.  Richards mixes real life narrative with hard facts and good research, unified by sound reasoning to expose a nasty and growing problem in American government today.  The problem is a big part of why government is expanding and becoming more intrusive in all aspects of our lives, including our financial affairs, education, healthcare, energy use, the products we buy, the food we eat, and the entertainment we enjoy, and even the breath we exhale. 

That is to say that the story told by Jay Richards, in Infiltrated, is actually a longer story, a story that began long before the recession, and continues afterward, a story that is bigger than his book.  The recent economic events and their painful aftermath illuminate Richards’ core message, the human wreckage caused when some people are able to harness the coercive force of government to impose their personal notions of “benevolence” on the rest of us. 

Roger Kimball, writing in 2011 in The New Criterion, warned that such efforts are “intoxicating, addictive, expensive, and ultimately ruinous.” (Roger Kimball, “Liberty versus benevolence,” The New Criterion, February 2011, p.6)  Richards offers several well-described examples, well illustrating the truth of Kimball’s observations. 

A valuable lesson for policymakers and for the people they would govern:  the more discretion you give to government, the more you create the opportunity for abuse of that discretion for private gain.  Europe in the 18th century was lousy with the practice.  Our forebears sought to escape it and fought a revolution to get out of its grip.  The men who threw the tea into Boston Harbor were acting in protest of the partnership between the British Crown and the British East India Company. 

Beware the public-private partnerships.  Jay Richards explains how some public-private mortgage partnerships went bad, very bad, for the partners and for all of us caught in the dust and debris of their collapse.  I am reminded of the warning by former Congressman Dick Armey, that when you enter into a partnership with the devil, you are always the junior partner.

I conclude with the words of New York City Democrat Congressman Bourke Cockran, delivered 110 years ago:

That Government only is good, that Government only is great, that Government only is just, which has neither favorites nor victims.

(W. Bourke Cockran, speech given before the National Liberal Club of England, London, July 15, 1903, in W. Bourke Cockran, In the Name of Liberty, p.190)

Our government should be that government.

Of Liberty and Breaking the Rules

Sometime in the 1990s, before the days of YouTube, I received a homemade video from a man who owned and operated a small business near Dallas, Texas.  He ran a landscaping company, had a handful of employees, and, according to the video, was in violation of some rule or regulation of the federal government every day.  He did not intend to be in violation.  He did not want to be in violation.  As he explained, it was just impossible to comply with all of the requirements. 

The video began with the owner sitting behind his desk, explaining the problem.  He stood up and took the camera with him as he walked through different parts of his operations, pointing out what was required of him, his business, and his colleagues. 

In the main office he described the employment rules, the tax laws, the related mandates and regulations that applied because he had hired other people.  He walked over to the equipment and described the numberless “safety hazard” regulations, from warning notices that had to be glued beneath the seats of garden tractors, to how he and his workers used, carried, and stored their tools, gear, and machines, and what they were supposed to wear while using them.  He discussed the multitude of formal requirements for managing and applying the fertilizers, pesticides, and other chemicals that are commonly used in his business, including their handling, storage, clean up, and their transportation.  Speaking of transportation, because his company used trucks and other vehicles, there was another long list of rules and regulations that applied to that part of the firm.

Added to all of this, there were numerous reports, applications, notices, and other papers to be filed with a variety of agencies on a regular basis.  When he was through, he sat down again behind his desk and said, “I break the law every day.  I don’t intend to, but I cannot avoid it.  I can’t keep up with it all as long as I stay in business.”

How did we get here?  Is this America?  Is this the land of the free and the home of the brave?  Is this a land of freedom sustained by law?  It is an unknown America, too unknown to most but too familiar to people who run a business, especially the people who own a small company.  The rest of us see little of it, though perhaps we suspect it is there.  Some of us catch glimpses. 

In a large business it takes longer for the regulatory burden to become overwhelming.  For a while the boss can hire more people to help carry the load.  In the large firms of America there is a host of employees who produce no goods or offer any services to any customers.  They spend their careers complying with their slices of these federal rules, laws, and mandates so that some of the other employees can be involved in what the business is all about, providing something to a customer for which the customer is willing to pay. 

The customer may not realize that a large share of what he pays for he never receives; it goes to pay those people who work to keep the business in compliance with the government rules.  More than businessmen would be wealthier without this heavy, dead hand clamped on firms, factories, and farms.  The necessities and luxuries of life would all be a lot cheaper.  Or, another way to say it, we would get more of the goods and services we pay for, less of our money sunk into these hidden costs for unproductive activity. 

America’s Founders sought to create a land of freedom, not dominated by government and the officiousness of government functionaries.  To them “unregulated” was a goal, not a criticism.  They also knew the danger of what could happen, even in America.  James Madison wrote, “It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood. . .”  (James Madison, Federalist no. 62)

And yet here we are.  What the Texas businessman faced in the 1990s has not become any lighter since.  When was the last time that you read the full text of a law?  Who has read the Obamacare statute, the Dodd-Frank Act, or any of the other voluminous, incoherent laws recently enacted, each written on more than a thousand pages?  For each page of law enacted by Congress today government bureaucrats write ten pages of rules and regulations, all of which are enforced as law though never voted on by anyone who himself has been voted into office by the people.

In the land of the free, whose founding document begins with “We the People”, why do we tolerate it?  One of the complaints against the king of England in the Declaration of Independence reads, “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”  And yet we have done the same to ourselves.  The Dodd-Frank Act alone created several New Offices and has already stimulated the hiring of more than a thousand new officers.

“I wear the chain I forged in life,” replied the Ghost.  “I made it link by link, and yard by yard; I girded it on of my own free will, and of my own free will I wore it.  Is its pattern strange to you?”

Scrooge trembled more and more.

“Or would you know,” pursued the Ghost, “the weight and length of the strong coil you bear yourself?  It was full as heavy and as long as this, seven Christmas Eves ago.  You have laboured on it, since.  It is a ponderous chain!”

(Charles Dickens, A Christmas Carol)

There was a time when the chains had to be broken to restore the rule of law.