Saturday, September 4, 2010

Restoring Constitutional Government - [Return to First Principles]

Restoring Constitutional Government

Paul A. Rahe

We have come a long way in the last twenty months. The President of the United States, his Chief of Staff, the Speaker of the House of Representatives, and the Majority Leader in the United States Senate have done for the Republican Party what no Republican could have accomplished. Just as rigor mortis was about to set in, they brought the old corpse back to life. For their efforts on our behalf, we should be forever grateful.

It is easy to lose perspective. It is easy to forget the dire straits in which the Republicans found themselves in and for some time after November, 2008. On the first Tuesday of that month, they were soundly defeated. The Democrats controlled the Presidency and both houses of Congress. In time, when Al Franken was seated and Arlen Specter turned coat, the Democrats would attain El Dorado – a commanding majority in the Senate capable to bringing a filibuster to a screeching halt.

The Republicans initially thought that to get along they would have to go along. Had Nancy Pelosi thrown a little patronage their way when the so-called “stimulus” bill was being put together, had Barack Obama intervened to insist that she include earmarks for compliant Republicans in the House, a great many of them would have voted for the measure. It is to her that we owe their solidarity on the occasion of the vote. She is responsible for the fact that on that occasion they presented themselves to the world as a party of principle. If the Tea-Party Movement, which sprang up in the immediate aftermath of the bill’s passage, was not as resolutely hostile to the Republicans as it was to the Democrats, it was because Pelosi and her minions wanted vengeance, sought it, and got it.

Even when the Tea-Party Movement had emerged, the Republicans were not quick to realize what was in the offing. On 2 May 2009, some six months after the election, Jeb Bush emerged from a meeting with Mitt Romney and House Republican Whip Eric Cantor to announce that it was time for the Republicans to give up “nostalgia about the past” and to leave Ronald Reagan and all that he stood for behind. “You can’t beat something with nothing,” he observed, “and the other side has something. I don’t like it, but they have it, and we have to be respectful and mindful of that.”

Jeb Bush, Mitt Romney, and Eric Cantor may have been slow to grasp what was going on, but it would be a mistake to assume that they are dopes. It was not until early August in that year that I was willing to admit to myself that a political realignment in the Republicans’ favor was a serious possibility; and, as I noted in a piece posted in the aftermath of the annual meeting of the American Political Science Association in early September, I was even then almost entirely alone. At that convention, I had attended a panel on Barack Obama’s first year as President at which not one of the distinguished students of American politics on the panel had in their prepared remarks even mentioned the Tea-Party Movement. And when I asked a question about it, I received a perfunctory answer. It was odd, my interlocutor remarked, that such a movement had emerged in the absence of institutional support. It was, I thought, very odd, very odd, indeed.

Now, thanks to Barack Obama, Rahm Emanuel, Nancy Pelosi, and Harry Reid, the Republicans appear to be on the verge of an historic victory.

I would not be surprised in the slightest if they were to gain more than seventy seats in the House of Representatives and to retake the Senate as well. But, as I intimated in a recent post entitled John Boehner’s Testing Time, nothing is certain, not even now, and Jeb Bush was certainly right about one thing. You cannot beat something with nothing, and in recent years the Republicans have stood for next to nothing. If they are to effect a lasting political realignment — a possibility for which I have argued repeatedly in the last twelve months (first here in August 2009, then in posts linked here and archived here, here, and here) – they must give the American people reason to put their faith in them.

In an earlier post, entitled Patronage, Principles, and Political Parties, I explored the history of American political parties, their propensity to oscillate between being parties of patronage and parties of principle, and the manner in which the American constitution with its separation of powers both requires and subverts parties of principle. In John Boehner’s Testing Time, I drew on this earlier post and suggested that Boehner, Mitch McConnell, and their associates would be well-advised to draft a new Contract with American designed to nationalize the midterm elections and to transform the Republican Party – which has in recent years tended to be a party of patronage oriented towards the needs of particular, local constituencies – into a party of principle capable, at least for the time being, of genuinely governing these United States.

This end, I contended, can be achieved only if the Republicans appropriate for their own use a claim falsely but effectively advanced by Franklin Delano Roosevelt in 1936 which – thanks to our current President, his Chief of Staff, the Speaker of the House of Representatives, and the Majority Leader in the United States Senate — now rings all too true: that today the American republic is threatened by a conspiracy, that “a small group” of individuals, lead by Obama, Emanuel, Pelosi, and Reid, is intent on concentrating “into their own hands an almost complete control over other people’s property, other people’s money, other people’s labor — other people’s lives.” If they wish to effect a realignment, I argued, all that the Republicans have to do is to complete the task of unmasking begun by Obama, Pelosi, Reid, and Emanuel and make it clear that they really do intend to repeal Obamacare, to balance the federal budget without enacting permanent tax increases, to roll back the scope and size of the administrative state, and to restore within these United States limited, constitutional government.

To this end, they not only need to spell out in some detail what they intend to do; they need, as I argued in that earlier post, to justify their proposals in terms of constitutional principles. To grasp what this entails, they will need to specify what these principles are. Here is how this can be done.

As I argued in an earlier post and, in much greater detail, in my recent books Montesquieu and the Logic of Liberty and Soft Despotism, Democracy’s Drift, the American regime is an experiment of a particular kind. In the late eighteenth century, it was almost universally agreed that a republic cannot be sustained on an extended territory. Such was the argument that Montesquieu advanced in the first part of his authoritative book The Spirit of Laws, and he had good reason for advancing such a claim. Athens and Sparta were situated on territories of no great size, and the same could be said for early Rome and for Lucca, Florence, and Venice in the Middle Ages and the Renaissance.

Late republican Rome was an exception to the rule, to be sure. But – as both Machiavelli in his Discourses on Livy and Montesquieu in his Considerations on the Causes of the Greatness of the Romans and their Decline and Spirit of Laws pointed out — Rome was also the exception that proved the rule. It was a republic that, by dint of conquest, came to be situated on an extended territory and then collapsed. The Framers of the American constitution faced a great challenge, and this they knew.

The challenge was straightforward. Polities situated on extended territories sit at a great distance from the vast majority of the people whom they rule. This is consistent with despotism; and if the distance is not too great, it is consistent with legitimate monarchy and the rule of law as well. But for republics it poses a problem. Governments at a distance from the people they rule tend to be invisible; and when human beings are invisible, they tend rightly to suppose that they can get away with a lot. Moreover, large polities tend to face emergencies more often than small polities, and emergencies require from rulers vigor, alacrity, and resoluteness of the sort most easily provided by a man who can act alone. The challenge facing the American Framers was to devise a constitutional structure capable of producing a government fit for meeting emergencies but unlikely to become, as James Madison once delicately put it, “self-directed.”

To meet this challenge, they turned to the second and third parts of Montesquieu’s Spirit of Laws – where he sketched out two different ways in which a republic can overcome this limitation on its magnitude. It was, he realized, necessary that it do so because – at least in modern times – no small republic could hope to marshal the resources necessary for its self-defense when attacked by monarchies of intermediate size or despotisms immense in size.

The first expedient suggested by Montesquieu was federalism. By means of federalism, a group of republics could project power in the manner of a monarchy while remaining small enough to be genuinely self-governing.

Montesquieu’s second expedient was the separation of powers. By distinguishing along functional lines between the executive power, the legislative power, and the judicial power and by distributing these three powers to different bodies in such a fashion as to render them separate and quasi-autonomous, the English had managed to transform a monarchy into a republic capable of sustaining itself on an extended territory. For emergencies, they had an executive capable of vigor, alacrity, and resoluteness. To prevent that executive from becoming a tyrant, they had a House of Commons responsible to the electorate and capable of calling the executive’s servants to account. To avoid populist excesses, they had a House of Lords capable of checking the House of Commons; and to protect the liberty of the citizens, they had judges who could not easily be removed from office and juries selected from among the peers of those accused.

The Americans combined both expedients. To begin with, they instituted a federation, building on the remnants of the old colonial system and on the structure that existed under the Articles of Confederation. At the center, they established a government of limited powers – capable of defending the nation, of guaranteeing to every state a republican government, of regulating commerce between the states, and of responding to emergencies. To the states and local governments, where the territory was comparatively small, they left all other legitimate powers. To make the federal government in some measure independent of the states, they provided for direct popular election of the House of Representatives; and to enable the states to protect their own prerogatives from federal encroachment, they had the state legislatures elect the federal senate.

At both the state and federal level, the American founders instituted a separation of powers, giving to the executive, the legislators, and the judiciary the means by which to defend their own prerogatives and the motives for doing so – and, by dividing and separating the powers, the Founders sought to make the government and its operations visible to the citizens. Each branch served the general public as a watchdog with regard to the others.

The measures undertaken by the Obama administration and by its supporters in Congress that gave rise to and sustained the Tea-Party Movement all have this in common. They constitute an assault – evident to anyone who cares to look – on our inherited political order. They transgress on the two great principles constitutive of that order. They are inconsistent with federalism and the separation of powers, and nothing speaks to their character more eloquently than the fact that they were crafted in camera behind closed doors, that those who voted on them had not read them, and that they were of such a length as to be incomprehensible even to their putative authors.

Let me be a bit more precise. The two great measures passed since January, 2009 – the healthcare reform bill and the financial-regulation reform bill – presuppose that the federal government can do anything. Both run roughshod over the prerogatives of the states. Neither is consistent with federalism as a principle of governance.

The same can be said with regard to the separation of powers. Both bills presuppose a massive delegation of legislative power to executive agencies. Both presuppose that appointed officials can and should be empowered to issue regulations having the force of law. Both presuppose on the part of both houses of Congress an abdication of the legislative power. Both require a concentration of executive, legislative, and judicial power within a single agency that operations, in effective, behind closed doors. Both promise to give rise to a government that is invisible and unaccountable. The combination of these powers is, Montesquieu asserted, the very emblem of despotism.

My critics will respond that this is nothing new, and they are very nearly right. The administrative state is now nearly a century old. It has existed since the days of Woodrow Wilson. It assumed gigantic proportions under the New Deal and the Great Society. But never was its expansion brazenly and arrogantly thrust upon the American people until now. By the methods that they have employed to secure its aggrandizement, Obama, Emanuel, Pelosi, and Reid have unmasked the administrative state and have made visible its tyrannical potential.

It is the task of John Boehner, Mitch McConnell, and their associates to unite their brethren behind a common program designed to roll back the administrative state and to hold them to their commitments. To do this successfully, they must make use of what the Democrats have done in the last few years in such a way as to educate the American people with regard to the roots of the present discontents. What those who joined the Tea-Party Movement sense must in the course of the midterm campaign be made manifest in all of its horror.

I have said it before, and I will say it again. What we need is a return to first principles.

Reprinted with permission of the Author.


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