Strengthening Constitutional Self-Government

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Hungary's New Clothes

Conservatives - and Americans as a whole - are sometimes criticized by the left and foreign observers for rather excessively worshipping the U.S. Constitution. I've always absorbed such criticism with a reflection of Barry Goldwater's observation that "extremism in the defense of liberty is no vice." If one must err, it ought to be in favor of a glorious principle which has well preserved a glorious republic. Devotion to the document has very rarely led us astray, whereas its neglect has reaped immense mischief.

I recall a joke that a man once asked a librarian for a copy of the French Constitution, only to be informed that the library did not carry periodicals. The protean and politically partisan nature of European constitutions has always limited their effectiveness. Even when changes reflect serious thinking on matters of political structure and purpose, the result is a fleeting triumph quickly subject to revision. The ultimate consequence is a weakening of fundamental, shared political convictions - an instability which always favors authoritarianism.

Hungary presents a case in point. The government is presently issuing a new constitution. Proponents celebrate the document as a final break with Hungary's communist past, whereas critics agrue it establishes an authoritarian regime in Europe. The constitution does greatly empower the current president and legislature to extend their influence (and political ideology) into perpetuity, and will thus be treated by opponents in the same manner as Obamacare and financial regulations: massive, partisan legislative overhauls to be quickly rescinded. 

The problem with time is that it can't be rushed. Hungary's new fundamental law is still wet ink on paper - it will be very long before it gains the prestige and solemnity to stand on its own. Until then, it is subject to all the slings and arrows of political warfare. Should it fall, its successor will suffer all the same frailties. Thus is the curse of European fecklessness.

I posit the moral of the story as a reflection on the great boon Americans enjoy in the U.S. Constitution, and our debt of gratitude to the wise men who composed the stately charter.

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Devotion to the document has very rarely led us astray, whereas its neglect has reaped immense mischief.

Justin, it is a piece of the positive law. Its purpose is to delineate a division of labor between different institutions of government and to specify selected immunities from state action. Through experience, its deficiencies can be observed. Parts of it have been poorly written (e.g. the Bill of RIghts and the 14th Amendment) and the institutional architecture has some structural defects (e.g. concerning the role of the judiciary in policy-making). As written, it is not very adaptable due to its cumbersome amendment procedure. You should not pretend Mr. Madison's verbiage is some wondrous piece of artwork that is corrupted if altered. It is no such thing.

"Its purpose is to delineate a division of labor between different institutions of government and to specify selected immunities from state action. "

Whiskey. Tango Foxtrot!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Here is the Preamble to the United States of America's Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Constitution and Bill of Rights were ratified to keep the Federal government from becoming too powerful and to secure indivdidual liberty/rights and state's rights. The Constitution tells the Federal Government what to do - it doesn't tell the Federal Government what do to the citizens of the United States.

Doubtless the framers of the Constitution did not want the federal government to be too powerful, but that was not their major concern at the time, which was that the state governments were too powerful under the Articles of Confederation. Their object was to ensure that our nation had a central government with enough powers to provide for the common defense and promote the general welfare (Article I, Section 8), while leaving the bulk of the police powers (health, safety, welfare, morals, education) to the states. We had to fight a civil war to prevent the undoing of that great achievement. The situation has indeed changed, as the federal government now is attempting to accomplish what is beyond its ken and its constituted authority. It took years of Progressive inroads on the Constitution for us to reach the faulty conclusion that society should be "transformed' rather than enabled to achieve political and economic prosperity.

You're not making much sense.

Neither are you for that matter.

We had a civil war to prevent the Federal Government from becoming too powerful. The Southern States decided that the Federal Government was not holding up their end of the bargain and wanted to seceded from the Union. Based on the Constitution at that time, the south was in their rights to do so. The Federal Government got upset and invaded the south. The Federal Government's budget at the time of the Civil War was about $120 million with the bulk of that coming from the Southern States from tariffs on exports of cotton mainly to Europe. If the south left the Union there would be less money to run the Federal Government. Northerners who sympathized with the south on the basis that they had the right to secede from the union were chucked into jail (Lincoln suspended the writ Habeas Corpus and enacted Marshall Law in the North). Lincoln shut newspapers down that wrote editorials supporting the south.

The Constitution is to protect individual/states from an overpowering Federal Government.

I think one of the important things to remember with the Constitution is that there are many more tacit concerns the writers and ratifiers were addressing than are sometimes explicitly written out. Many of them scoured history looking for examples of how things could fail--and then took proactive action when they were politically able. Thus, when we decide to alter the Constitution, we do ourselves a favor when we actually figure out *why* they wrote a clause, why they thought it important to start with--especially as we rarely study history now as they did then.

So, for starters--why bother with the states at all? There had to be reasons, right? Some noble, some ignoble, some purely historical. So what were they? Why the attachment of the Founding generation to a system of divided sovereignty? What was so magical about it to them? Anything? Any drawbacks? And do the pluses and minuses have any play today?

The states already existed, they commanded the loyalties of their residents, there were vested interests in maintaining each extant government, and there were dissimilar social relations from one region of the country to another (which would make local control more advisable).

As for scouring history, one might undertake to compare the Constitution with the various colonial charters and state constitutions in effect to see its inspiration. Republican institutions in early modern Europe tended to be odd and idiosyncratic. Cross-national comparisons would have been more difficult than they are today, when such institutions tend to be variations on one of three types.

Cowgirl, Please read these two numbers from the Federalist.

http://avalon.law.yale.edu/18th_century/fed15.asp (Hamilton)
http://avalon.law.yale.edu/18th_century/fed40.asp (Madison)

"WHEREAS, There is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced, that there are defects in the present Confederation; as a mean to remedy which, several of the States, and PARTICULARLY THE STATE OF NEW YORK, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States A FIRM NATIONAL GOVERNMENT:

"Resolved, That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and reporting to Congress and the several legislatures such ALTERATIONS AND PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION.

Justin Paulette's main point, that continuity of fundemental law has been a benefit to the US, is not really disputable. Even the cumbersome amendment process has been of benefit in that it allows some dubious ideas, like the E.R.A., to die in the process. The Consitution has certainly proved flexible enough for the current politics of any generation to make adjustments in government. The General Welfare Clause and the Necessary and Proper Clause have allowed all sorts of leeway or "organic growth" in governmental structure. However, the underlying stability of our basic separation of powers type of divided government structure prevented a concentration of sovereignty for a very long time and is still proving a hindrance to the administrative government some of us dread and some others welcome.

So what if it is not perfect? I was going to ask what human thing is perfect and suggest that only God creates perfection. Then I thought about the reality of God's creation and how much room there is in it for imperfection. We all get by.

Kate, the clauses you cite have been exploited to erase the distinction between delegated powers and any object that pops into Charles Schumer's ugly little head. The political architecture proved insufficiently adaptable to address the economic crisis of the 1930s within the limits of federal power, rightly understood. The result was that the entire edifice was blown down and we were left with appellate judges contriving elaborate excuses as to why constraining a man from planting feed grains for domestic use could be understood as 'interstate commerce'. Specific delegations to the central government in the document itself, posited to be enforced by judges as umpires, failed to maintain authentic local discretion. Better think of an alternative.

There is much else that is wrong. The chronic misfeasance of the appellate judiciary is one. Asinine parliamentary rules are another. The manipulation of local authorities through conditional grants, funded mandates, and unfunded mandates is yet another.

Who suggested it had to be 'perfect' (other than Mr. Paulette, who apparently thinks nothing can improve on Mr. Madison's handiwork)? How about more-than-minimally-functional for a start?

I don't know AD Wickard v. Filburn is pilloried a lot, but it is pretty straight foward. It was a silly policy for the government to implement in the great depression, but if the government policy is to restrict production, then it is a pretty straight foward/analytic proposition that allowing production for derivative uses, necessary reduces aggregate demand.

The judges don't have to make the excuses, or invent anything. That is a political fiction. The parties in the cases write the brief's and the judges adopt the argument that follows precedent in the cleanest manner.

Wickard v. Filburn wasn't wrongly decided at all. (a different question than if it was good policy to begin with.) I don't think there is much wrong with Madison's handiwork. The constitution is pretty solid. Lincoln was a fine president. Our legal history is pretty solid. The APA is good. The progressives were not bad people. And China spending money on high speed rail is not the end of the world. A bunch of moaning and bitching if you ask me, spoiled bratish children, whining about taking from peter to pay paul, and how we are all so doomed. Legally and constitutionaly we have it pretty good. If anything we have a crisis of having it too good, and a sort of existential angst about not knowing how we can have it better, or how to preserve it. Hell we have to fabricate bad legal decisions, and outrageous law suits. We have it so good we have to spin everything pretty far from realism. It is a crisis of getting too close to reasonableness. Damn! Everything is so reasonable, how can I find something that I can improve and make more reasonable...I mean I can make things more reasonable by getting folks to agree that reality is unreasonable, and providing a reasonable solution to this unreasonableness...but uh...someone will just come in and shoot my fictional bubble/premise.

John, you always have ideas, write on something...uh well, I not all that certain I have an idea that would constitute an improvement, the law in reality is already a pretty crowded field, and it like our constitution is much better than the political cycle for "change" would allow.

I think we were pretty lucky to have the progressives, and as general advice to folks who aren't dispositionally inclined to reading or studying...Ignore it all and go watch the Browns, much healthier, and like ESPN the arguments cycle.

"Hungary's new fundamental law is still wet ink on paper - it will be very long before it gains the prestige and solemnity to stand on its own."

I like the Aristotelian feel to this, but I sometimes wonder whether this is actually true. Is our own Constitution more revered now than it was before? Is any fundamental law more revered with time, for that matter (e.g., the Mosaic Law)?

We are in a relatively lawless era. And there have always been people in any polity who do not much care about the law if it interferes with their own sense of right and rights. That we have people like Charles Schumer -- he's not an original; we've endured people like him before and, yes, FDR seemed to collect them. But simply because the Constitution has been abused by some people and does not cover every contingency time has thrown at it doesn't mean it hasn't provided us with a stable government over the years. Wherein people do not love it and actually kick against it -- it is not so much blown down as blown over. The less respect we have had for the document the less respect people seem to have for the nation. And the less decent a place the US is to live in. To complain about our fundamental laws being ignored as if those laws are the problem is like the adulterous man complaining that the institution of marriage did not keep him from honoring his vows. Where is the fault?

No, it is not analagous to complaints about the institution of marriage. A marriage is a marriage. There is not much to be done in the realm of public policy which address defects in domestic relations other than avoidance of practices like no-fault divorce. With regard to the containment of adultery, about the only thing there is are harsh social practices which sequester the female population and segregate the male and female population in social settings outside the family. (These tend only to contain the practice of adultery by wives).

For more than thirty years, I have been listenting to history teachers and political scientists of a certain bent chuffer on about how the Constitution's structural features are adapted to what we know of the dynamics of social relations to contain certain sorts of political problems. Either institutional architecture has this effect or it does not. There are rather blantant dysfunctions manifest in the current architecture and there has been a secular decay in the capacity of the government to function at the most basic level. We are, for example, operating on short term continuing resolutions with no budget. What you tell me makes sense only if the following is true:

1. Institutional architecture is of no account and only political culture matters (in which case why are you defending this instituional architecture?);

2. Our institutional architecture is absolutely optimal and no other can correct the defects we see;

3. Mr. Madison and his confederates were men of insight comparable to Isaac Asimov's Hari Seldon and the Second Foundation, and we can never improve on their work. (I will leave nameless the regular who said something along these lines).

Oh please, even the Bill of Rights was an improvement on the original work, unless it wasn't because it codified some rights and left others open to be abridged. Who had written a constitution before that one? Were there several great examples of how it should be done? And yet, what constitution of what nation that has been written subsequently do you prefer? I had one professor who said he would prefer to be governed by the 1936 Constitution of the Union of Soviet Socialist Republics, which was just about perfect except that for the fact that the USSR never took it seriously. Do you have some comparable document we ought to adopt?


My point about marriage is that marriage as institution is not the point. How people live within the institution is the point.

Prior to 1781, I think you will find examples of subnational units incorporated by charters delineating the form of political instituions. The colonies of British North America were among them. Nations had a body of constitutional law but no discrete composed charter of government. So, the precedents would be the colonial charters and the observed constitutional practices of foreign governments.

I am not sure why you think, having pointed out that our Constitution is in need of some major surgery, I must be thus commited to replacing it with an extant plan of government derived from abroad. A replacement might be in order if one proposed to erect a parliamentary system in this country or some sort of hybrid system of the sort favored in France and Eastern Europe. Lloyd Cutler favored a parliamentary system for the U.S. There is a body of literature in political science comparing the performance of parliamentary systems with separation-of-powers on certain metrics. I am not sure posited improvements would be worth the candle.

In any case, you can rummage through previous threads if you've a mind to see what institutional adjustments I think might be advisable. That sort of talk tends to bore people, however, so no need to repeat it.

Charters were imposed? And the former idea of constitutions were roughly as we could speak of your constitution (which I sometimes think is essentially grumpy) or mine, as indicating the way we are constituted, meaning all that is contained in spirit, soul and body. The Founders put the two ideas together making a deliberate attempt to impose a constitution on the nation as charters were once imposed, while allowing the states to preserve their own individual constitutions. Maybe the wonder is that it worked at all.

No, I didn't think you preferred some foreign constitution. Selfishly, I wanted to see you say it. And I do remember our previous conversations about the adjustments that you would see made to our structure of government. Sometimes those are good ideas, but sometimes they remind me of trying to get peristalsis to work backward.

Beyond the national and state constitutions the nation has a constitution in the very old sense and that is always in a state of metamorphosis. Maybe I don't like the current state of the state any better than you do, but I appreciate the foundational document in its intent, which was to bring stability and form a nation that was a republic as best could be formed at the time, with room for theme and variations on that idea of politics. It still helps and is very useful to push back towards when folks like Schumer or even our current president get their bright ideas. Democracy requires that kind of stability or it gets carried away with itself.

Madame Writing Professor, I do not think you have said one coherent thing in the course of this discussion. Your position seems to be that we cannot discuss defects in institutional life or any remedies thereto (and excuse me, but your digestion metaphor is nonsensical) because to do so would fail to acknowledge whatever it was that Messrs. Hamilton, Madison, and Jay aspired to accomplish. Cowgirl seems to think it some sort of intellectual scam to state what any piece of constitutional legislation does if it is to be called that: specify how office holders are chosen, specify how they are arrayed, specify the division of tasks between them, and specify the circumstances in which the public is immune to their actions. Justin Paulette seems to think that creating actuarially unsound benefit programs is a consequence of ignoring Mr. Madison's counsel (rather than ignoring the counsels of .... actuaries).

What I think we have here is an issue that simply cannot be discussed within a particular subculture.

Sorry, I didn't have time to edit.

But that's not what I am saying at all. We do discuss remedies for various things in the Constitution. You do. I do. The whole nation does, all the time, and has since the Constitution was written and ratified. We repair or or adapt, but our political discussions always have as root of reference that document. I say that is a good thing. You seem to be saying that it a bad thing, that we ought to have scrapped it long ago and maybe been on our -- what? -- third or fourth rewrite by now. Let's be like the French? No, thank you. You seem to be saying that we ought to acknowledge changing conditions and codify ourselves roughly as we are. Or else as we think might work best at the moment. I'm saying that leads to instability. You're saying the document was always inadequate. Well, I don't think so, and apparently neither does Justin Paulette and a few other people.

I grant that it might be cleaned up a little, but confess to being frightened to stone at the idea of letting anyone tamper with it in a serious way. I don't want another Constitutional Convention mostly because I am afraid of the political compromises we will see, especially after considering the political compromises we saw in the original document. I don't trust very many of our current "statesmen" who would be involved in the rebuilding of our national "architecture". We'd have something like FDR's Second Bill of Rights, which is a corruption as far as I am concerned. Or at best we'd see a compromise with those who want a government on the new liberal lines when I like the old liberal lines much better.

I want the Constitution as a buffer against the vagaries of our political culture. Whatever is current and agitating knocks us around enough. I want the stable reference point that document represents. It makes me nervous when Charles bloody Schumer or even "Art Deco" or anyone starts telling us they have a better way and we only need to listen up and obey to be all right. I am saying that makes me and others feel sick. I'd rather prune away the governmental overgrowth and find a better way to work within the original structure than have you or anyone else remake the nation. I don't trust just about anyone now to improve on what was done then.

Now I feel grumpy.

You seem to be saying that it a bad thing, that we ought to have scrapped it long ago and maybe been on our -- what? -- third or fourth rewrite by now.

I neither stated nor implied that. You can amend with reference to the current document. Subsequent to the Bill of Rights, the document has been amended 16 times, but most of these amendments consisted of matters of limited import. We have had enough practical experience over 200-odd years and there are enough examples of alternate methods in the states and localities and abroad to provide guidance concerning consequential alterations.

Perhaps I misread your first and fourth comment.

"comments."

You may be averse to anyone 'tampering with the Constitution in a serious way'. However, I will go so far as to say that what you mean in effect is tampering with the words on the page. Actual constitutional practice bears scant resemblance to those black letters. Right now, the appellate judiciary intervenes in any political question it cares to with whatever excuses their smart-assed clerks are able to gin up; state and local governments are ensnared in so many financial, regulatory, and jurisprudential tangles that even their elected officials may be confused about who is responsible for what policy; there are currently no matters in which the federal government is institutionally constrained from overriding local discretion or funding local projects; and the U.S. Congress is so pre-occupied with raising campaign cash, fellating constituency groups, and playing parliamentary games with each other that it can accomplish flat nothing unless there is a most wretched crisis and often makes a hash of matters when it does elect to act (e.g. Barney Frank's scheme of financial regulation).

A decision to not take corrective action via constitutional amendment is not a decision in favor of the political economy of 1928. It is a decision in favor of what we have now. What we have now stinks.

Yes, and it all grieves. But because of all that you cite, we will not get any good amendments to correct the situation.

"It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm."

Guess who.

Stop it. Were that true, any and all political history would be a history of decay.

No, because the other side of that is that sometimes there will be enlightened statesmen at the helm. There seem to be some coming up, don't you think?

I live in Upstate New York, which has a congressional delegation of a dozen. My money would be on Reps. Buerkle, Gibson, and Hayworth.

One of the curios of our time is the disjunction in the Democratic Party between federal and state pols. Our projected state deficit per capita in New York is one-tenth the federal deficit-per-capita and our state pension system is actuarially sound. Our recently departed governor, David Patterson, is a legacy pol who had spent a generation in Albany and had little in the way of a work history outside of electoral politics. Yet, he was a real terrier with the legislature on fiscal issues. Compare him with the President or Harry Reid and it makes you want to holler.

"There is a body of literature in political science comparing the performance of parliamentary systems with separation-of-powers on certain metrics."

Of course, this is another case of 'value-free' political science smuggling in all sorts of values.

That is good to read. Ohio has got some interesting people rising, too. Our governor is an encouragement -- a terrier at this point. Lots of the usual suspects cannot stand him, which is all to the good as far as most conservatives in the state are concerned and politically insulating in an interesting way. However, watching the current guys trying to cope with what the past politics of the state has brought the present is to think they might have to be miracle workers.

That disjunction in the Democratic Party seems to be between progressive dreamers and the necessary realists about efficient government. That's a divide within their national constituency. So darn many are of the persuasion that "If we could send a man to the moon we should be able to ...." What? Defy economics and human nature in the same way we defy gravity, I suppose. Of course, today we cannot send a man to the moon and have never figured out what was good in a practical way about sending guys to the moon in the first place.

I meander. It's one of those days.

The normative questions would be whether the goals were correct goals to seek and whether salient goals were left out of consideration. It would not be a brilliant insight to observe that the quantitative-methods maven was not giving explicit consideration to those questions. There is nothing the matter with an academic paper having a circumscribed line of inquiry. Any academic paper will deal only with an aspect of social reality.

AD: I think you misunderstood. I was saying that the "methods mavens" often unwittingly give *implicit* consideration to normative questions, and act as though they do not. Here, for example, the scholarship defines what constitutes "better performance." You'll see such language all the time in the literature on divided government (eg, George Edwards III) and so on.

I well understand what you are saying. One component of what you are saying is that they are being underhanded by not having an explicit discussion of normative questions. Sorry, they are not. Anyone schooled to read the bloody article can get an idea of what their assumptions are about the way things ought to be. (In one article I can recall, published in the Journal of Democracy around about 1992, the performance criteria were derived from economic and financial statistics. You think economic growth and price stability are invalid or ancillary goals in the context of that discussion, fine. It does not prevent you from appreciating the results they do report. )

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