Wednesday, December 18, 2013

Putting It All Together

Many are the mornings on which I awaken, grope my way toward rationality, and find myself wondering if I'll manage to find anything to write about that day. Yet few are the mornings that I don't look back on that passage of doubt with a certain rueful amusement.

The brilliant Richard Epstein has written a must-read article on judges' "editing" of the Constitution. Epstein is notable among Constitutional scholars not merely for his penetration and erudition, but also for his facility for mating his legal and Constitutional knowledge to economic forces and the consequences they create from aspects of public policy. An example from his article follows:

Section 8. Clause 1. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

This clause is a big deal because it remedies one of the major defects of the Articles of Confederation, under which the federal government had to beg the individual states for the revenues needed to discharge its own collective function. But in overturning earlier practice, the Founders were nervous about lurching too far in the opposite direction, so they limited the general power of taxation to three specified objects: “payment of debts, provision of common Defence, and the general Welfare of the United States.”

So it is important to understand that the clause is not a catchall that sweeps in every objective under the sun. Federal taxes are meant to fund only a short list of public—i.e. nonexcludable—goods that only the central government can provide. The Congressional power to levy taxes is needed to prevent free-riding by individual states. The limited purposes help prevent politically corrosive cross-subsidies between states that could sink the Union.

Epstein has detected a judicial edit: the reduction of the phrase "general Welfare of the United States" to merely "general Welfare." What follows is an example of proper, text-respecting Constitutional interpretation:

The proper interpretation of the clause raises thorny questions about whether, for example, the United States could provide disaster relief that benefits some but not all states. President Grover Cleveland thought that the answer was an emphatic “no” in 1887 when he vetoed the Texas Seed Bill, which allocated $10,000 for Texas drought relief. Under the Constitution, he did “not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit.” Indeed, the vital element in this clause is that it prohibits any transfer payment from one group of individuals to another, as those cannot serve the “general welfare of the United States.” To see why, take the analogous case where a corporate charter allows the Board of Directors to adopt only those measures that advance the general welfare of the corporation. Without question, the so-called business judgment rule insulates corporate officers and directors when they work in good faith to advance the welfare of the corporation, and thus all its shareholders, in transactions with third parties. But it is a per se violation of that rule for the directors to tax one subclass of shareholders in order to pay dividends to a second subclass. All transfer payments among shareholders clearly violate their duty to advance the welfare of shareholders as a group.

I find myself thinking of a famous historical exchange: the one between Davy Crockett and Horatio Bunce. You'll find Epstein's elucidation of the Taxing Power clause mirrored in Bunce's sentiments.

Following upon Epstein's article, we have this column from Nicholas James Pell:

December 5, 2013 was the 80th annual Repeal Day, AKA the day that Prohibition was repealed. It is the highest holiday for me and my coreligionists, the American Drunkards (Unreformed). Prohibition is widely regarded as the biggest mistake in American policy ever. It’s hard to imagine now—especially in Los Angeles, where there’s a head shop on every corner—but for 13 years, a rabid coalition of progressive puritan do-gooders successfully forced Americans to make do with bathtub gin.

Prohibition created organized crime and killed California’s nascent wine industry. Historians have largely written Prohibition’s history to serve its greatest proponents: the progressive crypto-Unitarian puritans who currently dominate public discourse. We are led to believe that rather than part and parcel of the progressive movement, Prohibition was a conservative folly, the solitary “move forward” from the past that we can all agree was a step in the wrong direction. This is a blatant falsehood: Prohibition was, through and through, part of a broader movement that sought to impose a hyper-Protestant post-millennialism on the rest of us who love wine, women, and song....

Mostly we’re left with the progressive puritan notion that the state has the right—nay, the duty—to combat evil wherever it might rear its ugly head in the world. We’re also left with a teleological concept of the American Republic wherein each subsequent generation is responsible for righting the wrongs of the last. Whether it’s raising the minimum wage or affirmative action, it is now an officially prescribed function of the federal government to make the world a better place. Sure, liberty is cool and everything, but isn’t equality a lot better, maaaan?

Still, Repeal Day offers a glimmer of hope through another historical lesson: It is, in fact, possible to turn back the clock. As 100 legislators from over 30 states gathered less than a week after Repeal Day to discuss passing the so-called Liberty Amendments—nothing that strikes so much terror into the editorial board of Daily Kos and Slate can be all bad—it’s prudent to remember that arguably the best Amendment to the Constitution was passed in just such a manner.

The repeal of the Eighteenth Amendment by the Twenty-First was indeed a joyous occasion, though the enormous damage it (and the previous two Amendments) had done to the nation was not completely reversed. (BATFE, anyone?) But even more significant than the Eighteenth's repeal was its passage in the first place: Congress admitted that to outlaw the manufacture and sale of alcoholic beverages was not, by the Constitution as it stood, within its enumerated powers. Either the legislators of that time were more honest than those of today, or they were better restrained by external forces.

Chief Justice John Marshall, in McCulloch v. Maryland, wrote thus of the matter:

This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.

Unfortunately, he went on to write thus:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional

...citing the Necessary and Proper clause as his rationale. Subsequent legislators and jurists have proved appallingly creative in their interpretations of "legitimate," "appropriate," and "within the scope of the Constitution."

In a cri de coeur piece at Doug Ross @ Journal, financial executive Richard Larsen vents his displeasure over America's accelerating slide into tyranny at...conservatives!

When you think about it quantitatively, conservatives are mostly to blame for our current modified state of the union. How many conservatives refuse to vote if their candidate is not in the race, or are disengaged or oblivious to the destruction occurring around us, or do nothing, or say nothing, to preserve and protect our constitutional republic?

Conservatives have allowed this transformation to occur, by acquiescent reticence. I think no one has stated it more perfectly than Albert Einstein who said, “The world is a dangerous place not because of those who do evil, but because of those who look on and do nothing.”

Speaking out against this erosion of freedom is good, but it’s simply not enough, and it must be more vociferous and protracted. Too many battle among themselves for ideological purity, fight amongst themselves over the most efficacious political tactics, or just throw verbal stones at those whose destructive policies are morphing the country into something never intended, but then flame out before anything is accomplished. If they don’t bother to vote, don’t get involved in the process, and don’t try to make a difference electorally, and worse yet, are divisive to the conservative ranks, they deserve some of the blame for what is happening. Every conservative must do what he can, and most of all, to vote. If every conservative voted in every election, statists wouldn’t stand a chance.

Nonsense. Nonsense of the purest water, and a man as intelligent and accomplished as Larsen should know it. Conservatives are the persons most likely to vote in any election, biennial or quadrennial. Indeed, the Republican Party appears to bend most of its electoral effort into chivvying us to the polls no matter who it puts forward as candidates -- and we go. Energetically or dispiritedly, we go. The problem isn't conservatives; it's the candidates we're presented, most of whom are only cosmetically attractive.

Constitutional governance requires that the government remain within its Constitutional bounds. Tautology, I know. All the same, it's true -- so what are we supposed to do when Republicans, supposedly the sworn protectors of the Constitution and promoters of limited government, lie down before the Democrats' carriage, as they've done repeatedly since 1933? Vote them out and install a new set? Okay, we've tried that. Has it made a perceptible difference? Have the new legislators been any more faithful to their oaths of office than the men they displaced?

Yes, there are exceptions among the newest Congressmen and Senators. But "new" is a diminishing attribute. Few are the legislators who, after three or four terms in their seats, don't adopt the go-along-to-get-along / we-can-do-it-better-and-cheaper postures of the old boars. Their party puts the screws to them in numerous ways. The alternative to submission is often getting an actual job.

This was foreseeable from the day the Sixteenth Amendment was passed. Unfortunately, I wasn't around back then.

Government Systems, acting in accordance with the laws of growth, Tend to Expand and Encroach. In encroaching upon their own citizens, they produce Tyranny, and encroaching upon other Government Systems, they engage in Warfare. -- John Gall, Systemantics

If there's truly a "quiet rage" accumulating among "silent" Americans, it has only two routes to follow: massive gastric distress or armed revolt.

Gall's citation of the "laws of growth" depends upon a theorem that cannot be proved but that's never been contradicted by evidence: That which is not growing is dying. Governments are like living organisms in that regard. They grow from the internal dynamic that animates all living and pseudo-living systems. Cyril Northcote Parkinson, David Friedman, and others have expanded on this phenomenon. There appear to be no counterexamples in the history of nation-states: governments grow until they collapse or are brought down by war or revolution.

A government that will not restrain itself, that perpetually ignores the plain text of its chartering document, that's staffed by persons who view ordinary citizens with disdain or worse, and that cannot be corrected by peaceful means will either flower fully into totalitarianism or be brought low by the force of arms. Just now, we're seeing the unfolding of the former process; the latter one appears nowhere on the horizon.

The Constitution of the United States was an attempt to countervail the "laws of growth" by formal and procedural means. To work, it had to be respected exactly as written. Indeed, the Founders were so precise in their language that the attempt to insert a semicolon where a comma was intended brought down censure upon the perpetrator.

Who in public office today would hew to that strict a standard? The Constitution worked reasonably well for about 125 years. However, as Herbert Spencer has noted, "Paper constitutions raise smiles upon the faces of those who have observed their results." All such charters require enforcement to be meaningful over a long interval...and with the sole, glittering exception of the Eighteenth and Twenty-First Amendments, ours has gone unenforced since at least 1913.

The pieces of this puzzle are not numerous, Gentle Reader:

  • Major parties controlled by untouchable kingmakers;
  • A "two-party system" effectively protected by electoral law;
  • Loose and tendentious construction of the Constitution by the courts;
  • Congress's delegation of its lawmaking power to the "alphabet agencies;"
  • Legislators and executives beyond the reach of peaceful means of correction.

It's time we put it all together.

UPDATE: A reader informs me that the link to the "semicolon episode" story no longer works. Here's another citation, though the author of that document says that he doubts that the story is true. Whether it's true or not, there's a comma where a comma belongs -- and you may be sure that the Founders would not have had it any other way.


Gary Hunt said...

Another "edit:
Habeas Corpus (sacred writ) removed from the Constitution by the Supreme Court

Anonymous said...

link to semicolon-constitution.pdf broken

RT Rider said...

I think it's important to make the distinction between government and the state. We can have government without a state but the state cannot exist without government. The state has become very much unaccountable to the electorate or the elected. How many times has someone been elected do make a difference in Washington, or state capitols - or even a new government per se - only to be stymied and made irrelevant.

The power of the unelected, those who really run the state, whether in the bureaucracy or agencies, such as the Fed, are almost omnipotent in their ability to resist change or reform. The past five years has demonstrated this in spades. What meaningful reform has occurred to prevent future financial fraud and failure? None that I can see.

IMHO, the country has been captured by interests who are unaccountable to the electorate. If the country woke up tomorrow and en mass threw out both parties, it would be interesting to see if their power would be relinquished, in abidance with the law. I somehow doubt it.

But at least the thin veil of false democracy would be torn away for all to see the hidden tyranny. Then there are no more excuses about what needs to be done.

I would like to add that there is a book written by Brion McClanahan, called The Founding Fathers Guide to the Constitution, which does a good job of describing the original intent, arguments, and discussions, behind each of the articles and clauses, as well as the B.O.R.