The Rise and Fall of the Magic Kingdom
An interesting (if somewhat archaic) feature of contemporary American political discourse that characterizes its last half decade is the propensity for Founder worship. In the context of what one hopes is the death rattle of the welfare state, the great clash between neo-liberal and conservative (perhaps even neo-conservative) forces in the United States is nearly (but not quite yet) joined. But when it comes to taking sides finem respice grows decidedly despondent. After all, there is no free-market party in the United States any longer- and on reflection one might ask: "since the post war period, has there ever been?" Be this as it may, however, it isn't difficult to surmise that the catalyzing agent for this conflict is the impending collapse of the quasi-socialist "blue model" and, depending on the degree of pessimism one possesses, the collateral doom of Western democracies. And finem respice must, by necessity, use this term "Western democracies" rather expansively.
Certainly the sovereigns in the European Union, being subject to the whim of unelected officials in Brussels on almost every matter from product labeling to agricultural and fiscal policy, look nothing like "democracies" anymore. How else does one explain the situation in Greece, where the embattled prime minister's efforts to "go to the people" and hold a national referendum on European Union aid packages resulted not only in no referendum, but also in his prompt sacking... by the European Union. (!) Sad tidings for the cradle of modern democracy, no?
But in the United States such push back against the slow but unending accretion of the state as has found root in the new right (same as the old right) seems to rely on rather dubious windows-into-the-soul making speculation chased immediately with a stiff shot of intellectual time travel. What would Jefferson say? What would Adams think? How would Hamilton react? Won't William Few protest? (Ok, no one actually knows that William Few was a Founding Father. This is illuminating.)
Fear not, for a plethora of expert, modern commentators, with great eagerness and bombast, are ready to tell us. Scores of passages from the Federalist Papers are today enlisted to decry this or that piece of federalist feature creep. But these entreaties to the Founders and their admittedly eloquent, even unmatched, prose all suffer from a common flaw:
That ship has sailed.
One need only cite the most obvious of texts to understand why this is so. To wit:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.
The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.1
Leaving the endurance (or lack thereof) of these concepts aside for a moment, current events compel finem respice to cite:
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.2
This past Monday no less a force than David Kopel (Research Director at the Independence Institute, Cato Institute Policy Analyst, and noted Volokh Conspiracy contributor) employed exactly this passage3 in his critique of President Obama's recent comments on the role of the Supreme Court and Sebelius v. Florida (the challenge to The Patient Protection and Affordable Care Act, i.e. "Obamacare").
With respect to the issue at hand, that is the power of courts to overturn "a law that was passed by a strong majority of a democratically elected Congress," the passage bears directly and decisively. So too, as finem respice begs to draw the readers attention to, does Marbury v. Madison.4 And, without a doubt, so does the very concept of "judicial review," if that phrase is to have meaning at all.
But, in keeping with the theme of Founder hero worship debunking, it warrants reflection perhaps that, even in 1803, the concept of judicial review was not novel. Edward Coke was striking down statutes of Parliament as far back as 1610 (even if a power mad Parliament would later obviate the practice in conjunction with the removal of James II in 1688).
But for all its history, Kopel's use of Hamilton's foundation prose suffers a fatal flaw:
That ship has sailed. Just as it had in England in 1688.
Given the wantonly flaccid modern performance of Madison's "few and defined" restriction on the powers of the Federal Government and the equally unimpressive endurance of the "numerous and indefinite" powers reserved to the states (for there can be absolutely no argument today that there are but few mainstays of the Founders' design that have been more soundly obviated) what force does Kopel credibly imagine Hamilton's 223 year old prose to possess with respect to judicial review?
These arguments would be all well and good but for the five decades of utterly abject negligence in applying them that precede this moment.
What thin claim the United States once had to an independent judiciary (and one may even admit that, thin or not, said claim was still one of the more legitimate in the Western world at the time) it resolutely forfeited in the form of the Judicial Procedures Reform Bill of 1937. What astute finem respice reader can really declare herself shocked, shocked that President Obama is presently attacking the Supreme Court? It is worth remembering that many of the Founder's concepts were shared with- or, indeed, taken wholesale from- the French in the years leading up to 1789. True, it is easy to critique the French for the Reign of Terror. But given the hard-left turn their electorate appears ready to take this month, and at the very moment where their national fiscal house of cards appears ready for collapse to boot, it isn't difficult to direct a broader critique at République française- that whole, unfortunate Reign of Terror thing notwithstanding.
This begs a more provocative question:
It seems trivial to assert that the Founding Fathers are routinely credited with forming one of the most forward-looking, resilient and unique set of founding principles and documents (the Declaration of Independence, the United States Constitution and the Bill of Rights) in written history. Their unification of the concepts of separation of powers, division of church and state, individual liberty, enumerated powers, and the tenants of a great republic bound by concepts of federalism is heralded (mostly by Americans) as the most enlightened development in governance in historical memory. But can this reverence possibly be justified?
With limited exceptions the central principles articulated by the founders are today either weakened beyond repair or twisted into forms so alien as to insult their original definition. Did you not read the same Madison everyone else did several paragraphs earlier? Can one possibly articulate an argument that this Founder's intentions are even obliquely honored today? That there are justifications for such changes (living constitution, modern progress, need for an expanded federal government in a fast moving world) is not relevant. A living constitution is no constitution at all where it lives by any process other than amendment.
Moreover, in the context of the historical endurance of empires and civilizations, the United States (at just under 150 years from the ratification of the Bill of Rights to the Judicial Procedures Reform Bill of 1937) is in the bottom quartile if not the bottom decile of the population of sovereigns. (Belgium and Italy provide something of a boost, of course).
As a fiscal entity the United States fares little better than the many competing systems in the world political sphere today. Can one possibly say that China, Europe or Russia are materially worse off from a fiscal perspective than the patron saint of free markets, the United States? Perhaps by measure of GDP per capita. Perhaps by measure of standard of living. But as a fiscal entity? Indeed not. And the formers will follow the latter in due course, to be sure.
Instead the United States has fallen victim to the same quasi-socialist plague that afflicts these systems. If anything, her endurance must be credited only to her higher starting point on the great fiscal descent into collapse. There was simply more of other people's money to plunder.
Nothing lasts forever.
The Roman Republic, by contrast, survived 500 years and was only finally done in by a long series of civil wars and credible existential threats besides. She too cravenly resorted to fiscal and monetary shenanigans along with currency and social debasement at the end. But the Republic (and even the Empire) also managed to persevere during a period where communication (and therefore control) from the Senate was burdened by days, weeks if not months of travel delay. What excuse does a Republic that can communicate its message to its states and the rest of the world within seconds, employ military force anywhere on the globe within days, move goods to and from the furthest reaches by air, sea and land, have for the sort of abject failure that the United States is presently staring in the face. How is it that the greatest founding documentation in modern memory has permitted this state of affairs not just to develop, but to persist and metastasize for two generations? Perhaps the world has been a bit oversold on this point?
The last saving grace for lovers of free markets may be that- with 30% of the GDP price fixed via mortgage meddling, another 25% tied to government directly, and more pages of regulations than a scholar could consume in two lifetimes- the Untited States is no free market at all.
And just by way of gratuitous critique, one might also note that Republican Rome managed to maintain cohesion for centuries with a far more fickle and violent mob to contend with- and if anything can be said about Rome then it must be that Rome knew how to manage the mob. One wonders how Al Sharpton, Jesse Jackson, David Duke, and Michael Moore would have fared in the Forum of 10 AD. One then wonders what will become of the various mobs that have been riled up in the United States (Occupy, organized labor, public employee unions, community organizers, anti-hate leagues) now that their masters either have lost control of them outright or no longer have much use for them.
Unfortunately, finem respice suspects the United States will quickly discover what acumen it has to resist the centrifugal forces that now confront it. Looking to the Founders, a deposed ancestry if ever there was one, will not avail it. And, at first blush, Americans hardly appear as salty as the Romans of 150 BC. Still, finem respice is more than willing to be surprised.
- 1. Madison, James (writing as "Publius"), The Federalist Papers #45 (January 26, 1788).
- 2. Hamilton, Alexander (writing as ""), The Federalist Papers #78 (May 28, 1788).
- 3. Kopel, David, "President Obama Versus the Constitution," The Volokh Conspiracy (April 2, 2012).
- 4. 5 U.S. 137 (1803).