There's been so much talk these past three years about the need for a revival of American constitutionalism that I can't help wondering how much longer we'll have to wait for someone to produce detailed plans. Of course, we are in the middle of an election campaign, which tends to distort the rest of news reportage. However this is a very large country, and surely among the many of us who are politically engaged there must be someone -- hopefully a lot of someones -- who have thought out what course we might follow to restore constitutional governance to these United States.
The problem is, I can't find any such person on the Right. If you don't think that's a problem, check your pulse: you may have died and not noticed.
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Our challenge is captured exactly by the phrases De Jure and De Facto.
The United States first departed from the constitution about a century ago. Over the succeeding decades, our citizenry became accustomed to various extra-constitutional measures and adapted to them. Thus, the passage of time effectively legitimized those measures. They are no more legitimate according to the Constitution's text than they originally were...but their persistence has embedded them into our nation's ways of doing things.
Paradoxically, a careful and strenuous legal campaign must be undertaken to undo these measures. For they have brought with them certain assumptions about the scope of legitimate federal authority. This is a Gordian knot we cannot simply slash apart. Too many expectations travel along with it.
American education is an excellent example. It's not that long ago that Americans would have been surprised at the assertion that the federal government has any role to play in education. It was considered a strictly local matter. Higher education was considered the province of the moneyed elite; it was not deemed relevant to the concerns or the ambitions of the middle class. An American of the twenties or thirties, confronting the suggestion, so common today, that everyone ought to go to college would dismiss it with a snort.
How, then, should we address contemporary assumptions about the importance of higher education? For that matter, how should we address prevailing assumptions about federal standards for primary and secondary education? Politically, dismissing them as constitutionally impermissible is a non-starter.
And that's just one subject.
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Electoral victory isn't everything. I know, I know: win first, worry about the details later. But it's so terribly easy to go badly wrong if one refuses to think about the road ahead. Indeed, that's one of the worst aspects of our hyper-partisan political milieu. Of course, you'd have a hard time persuading members of the political establishment of that thesis. Their pole star is power; all else is mere pettifoggery.
Consider the following passage from Frank Herbert's novel The Godmakers:
"Government's a dubious glory...You pay for your power and wealth by balancing on the sharp edge of the blade. That great amorphous thing out there -- the people -- has turned and swallowed many governments. They can do it in the flash of an angry uprising. The way you prevent that is by giving good government, not perfect government -- but good. Otherwise, sooner or later, your turn comes."
This extremely optimistic view of the power of "the people" was written in 1972. Do you think it holds true in 2012? Indeed, did it even hold true back then?
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We need more than electoral victory. We need a road map back toward constitutional governance, and a way to compel the officials we elect to follow it. But if anyone is working on such a road map, or on the tactics that will be required to force the men we elect to respect it, I am unaware of him.
Yes: the economy is bad. But it's not Washington's job to fix the economy.
Yes: we spend far too much on Medical Products and Services for the results we get. But it's not Washington's job to budget our Health Care expenses for us.
Yes: a frightening percentage of the tangible goods we buy are made in other countries. But it's not Washington's job to coerce manufacturers back onto American soil.
Yes: the cost of living, even in the most penurious districts, is rising faster than Americans' productivity. But Washington cannot control the cost of living by legislative action.
All Washington can do is get out of the way.
Our task is not merely to remove the current regime from power; it's also to remake Americans' prevailing assumptions about the proper sphere of government. And no one, private citizen or candidate for high office, is audibly addressing this need.
The 18th century had John Locke. The 19th century had Herbert Spencer. The 20th century had Robert Ringer and Ayn Rand. Whom do we have to point the way?
(Dictated using Windows 7 Speech Recognition.)