American Political Theory and Constitutional Law Series, Pt. I
The American people have a history of distrust and suspicion of centralized authority. The original framework for the primitive independent-America outlined in the Articles of Confederation was not weak by accident. Even despite the clear insufficiency of the-then government under the Articles, the framers of the Constitution still found their vision of government to be a hard sell. It is fair to say their success was in finding an effective mix between the Athenian assembly and Roman Senate combined with ‘checks and balance’ with two other branches of government—a republic instead of a direct democracy.
In many ways, this debate has lived on. It is remarkable, particularly in recent decades, how many constitutional amendments have been given real and serious consideration by the U.S. Congress, from balanced budgets, to flag desecration, to super-majorities for taxes, to line-item veto just begin the list in attempts to reshape the constitutional order.
For some time I have had mixed and often conflicting beliefs about this whole debate. The usual “left” versus “right” spin is, as usual, tiring. Though, I have re-engaged the matter due largely to a new found interest in the project development of Catholic legal theory. Such an undertaking on the part of Catholic law professors and legal professionals have been enormously helpful in the process of asking serious questions and finding an authentic Catholic answer to crucial questions about American government, constitutional law, and jurisprudence. This couldn’t be more true than with my quarrels with the “living Constitution theory” as well as “originalism.” Though it is probably still the case, to some degree, that I am troubled about answers to these questions. I have become more convinced by those who make the case (in regard to one matter) that America needs a much needed reminder: constitutional amendments should be rare and limited to issues of historic significance. The U.S. Constitution must be preserved from short-term and sudden passions. The starting point, I think, is to reiterate, as the Founding Fathers did, the merits of representation, deliberation, and conciliation.
American voters in great number say they favor change, but there is no consensus or clarity about neither the amount nor direction such change should take. Not so surprisingly, contemporary political debates do very little to educate the public about essential constitutional issues. Serious discussion is not only past due, but is vital. What is a greater threat to constitutional government than a lack of substantive public debate and public awareness? An uninformed, ignorant public is perilous to the common good and constitutional order.
The Founding Fathers empowered the federal government because they believed it to be the best check we could have on the “propensity of mankind to fall into mutual animosities.” However, many critics of the federal government would like much of current federal powers be transferred to the states. While I am sympathetic to this position, I am not sure of the scope of power transfer that is being advocated. I am certainly not opposed to the federal government ‘sharing’ its power, extensively, with the states on a variety of issues. However, given a large transfer of power, issues like welfare, health care, environmental and energy policies would not be governed not in Washington, but rather in fifty separate statehouses. I certainly don’t think governmental power should be absolutely centralized in Washington, but I don’t think the opposite extreme is the solution. That is to say, I think more ‘leeway’ and more ‘share’ and influence on such policies should be permitted in state governments and less rigid control be exerted by Washington—respecting the principle of subsidiarity. This is where I think I begin to depart from mainstream conservatives (unless I am misunderstanding their position, or wrongly ‘grouping’ them). Much attention in the ‘conservative’ argument—too much attention—has been focused on what effects such a change would have on particular programs and policies, that is, what would happen in the short-term. My hesitation is the lack of focus on how this change potentially could undermine basic premises of the nation’s founding.
The national government was intended to be strong enough to defend the nation against foreign enemies and to prevent conflict across state lines. The Founding Fathers intended to establish a national market where goods and labor could move freely in interstate commerce. Moreover, through the federal government, the framers of the Constitution sought to, above all else, solve the problem of what Madison coined as “faction.” The divisive forces of passion and interest, it was argued, would plague local and state governments to the point of national division at its worst. Therefore, the solution was to extend the sphere of government to national dimensions and the factionalism would be kept in check, at least, as best as can be. The United States has survived incredible division and our system of government, thus far, has stood the test of time.
I cannot help but think how essential this point is. I hardly wish to imagine the division amongst the states, with a more remote federal government, with sharp regional disagreements over abortion, affirmative action, homosexuals in the military, and other cultural issues. Other issues are economy-related, the most common and durable have been the unequal distribution of resources—this immediately brings to mind the struggles over tax cuts, regulation vs. deregulation, and access to medical care.
The framers’ ingenious, and so far enduring, solution to the problem of faction was one of institutional design: build a strong a federal government that would combine representative democracy and “an extended republic.” Madison argued, the smaller the government, the more homogeneous. Thus, state and local governments are vulnerable to factional capture. I talked about this problem previously when discussing Bill Bishops’ The Big Sort and the division of America at the most local of levels.
Bishops’ thesis is simple: Americans have segregated themselves both politically and culturally. It is a natural human tendency to gravitate toward like-minded individuals. Given that at the social level, humans seek those whom they can identify with and given that the ownership of private property is a right, it follows that, if possible, people will move to places where there are people like them, which naturally makes them more comfortable. However, the often unseen consequence is that America has divided itself into communes which are entirely culturally and politically conservative or liberal.
Bishop puts it this way: America may be more diverse than ever coast to coast, but the places where we live are becoming increasingly crowded with people who live, think, and vote like we do. This social transformation didn’t happen by accident. We’ve built a country where we can all choose the neighborhood and church and news show — most compatible with our lifestyle and beliefs. And we are living with the consequences of this way-of-life segregation. Our country has become so polarized, so ideologically inbred, that people don’t know and can’t understand, and can barely conceive of “those people” who live just a few miles away.
This evident tendency is self-reinforcing. The more a specific region is monolithic politically, the more extreme the group can get. This, of course, turns-off people of the opposite view or those of a more moderate view, which allows the region to be even more monolithic. At the political level, local election between two parties is absurdly non-competitive. Depending on the demographics and thus, the political orientation, one party usually wins the area in a landslide. Local, or even state parties have enough support to tackle virtually every issue. As can be seen, political party primaries are dominated by partisan, party activists. At the national level, this reality translates into the non-existence of moderate candidates, a partisan nightmare, and an eternal gridlock of legislative action in Congress, a war for the presidency, and most troubling of all, the Supreme Court has become a pantheon of nine gods who we fight over to ensure they share our views.
This living dynamic reaffirms the tendency to only listen to opinions one agrees with, have little tolerance of other views, and to become all the more extreme in one’s own perspective. A simple glance at a presidential electoral map — broken down into county, city-wide, state, and regional patterns — confirms this observation (view the map and click state by state and look at the breakdown by counties.) Urban areas vote dramatically different than rural ones. People at the bottom of the socio-economic scale vote dramatically different than those at the top of the socio-economic ladder. The differences in these groups matter because if like-minded people flock toward one another, prosperity can be found at its highest where the most socio-economically advantaged reside. Bishop notes that education had always predicted city growth and after the 1970s the cities that grew the fastest and the richest were the ones where people with college degrees congregated. It’s not really news that intellectual elites tend to vote Democratic and not so surprisingly, the most esteemed universities and colleges in America are in areas where the wealthy and well-educated commune.
This dynamic has found its way into American churches. Many evangelical, fundamentalist Christians – in concert – enter the world of politics with concern for abortion, marriage and family issues as top priorities – none of which are negotiable. They are the current base of the Republican Party. Other Christian denominations may emphasize a “social gospel” which entails social justice, fighting oppression and bigotry, promoting personal “choice” on abortion, and accepting gays and lesbians, which leaves them in the Democratic column. In essence, religion in America is now being interpreted through the framework of political concepts, i.e. secular schools of thought. There is “liberal” Christianity and “conservative” Christianity. Many churches have become monolithic in their political views because people even prefer to worship in like-minded congregations. It’s why many Protestants “church hop,” particularly if they are say, a pro-choice liberal, and the pastor consistently condemns abortion and gay rights. They’ll find a church that shares their view. It seems then that the measure for the “true” church or a “good” church is how it lines up with our own political views. The use of religion as political mechanism has only deepened the divide between the people and it’s alienating people from God.
Just recently in listening to two political analysts debate, one of them made the comment “the values of Republicans and Democrats [the mainstream base of both parties] are very much at odds. We do not agree about the most fundamental issues.” The fundamental issues are many: abortion, birth control, gay unions, guns, education, and the environment, and many more. The parties (and the people) not only disagree on policies, but on principle. The fact that the country segregates itself into isolated communities reaffirming their own beliefs versus having a meaningful dialogue only deepens the problem. It’s a spiraling cycle.
Americans have arranged themselves geographically in terms of economics and politics in the last thirty years. While the free choice of where to live is wonderful, it also naturally generates economic inequity, cultural and social misunderstandings, and political gridlock. Bishop wrote an interesting line in his book: We have created, and are creating, new institutions distinguished by their isolation and single-mindedness…we have worked quietly and hard to remove any trace of the ‘constant clashing of opinions’ from daily life. It was a social revolution…entirely unnoticed.
Fundamentally, the American people isolate themselves into groups that inevitably become partisan, political think tanks form with whole, entire comprehensive agendas that are often not open to debate or revisions by opposing groups.
This analysis, if valid, attests to Madison’s fear. While the battles in Washington, D.C. are not free of partisanship, it seems that the national problem is a manifestation of mentalities and factions that are forming locally. Thus, on the framers’ theory, a decentralization of power—reasonable, at first glance—is the wrong prescription for our problems, particularly for a time when passions run high and interests are in sharp-competition. I can hardly imagine that the early twenty-first century is the time when it was unimaginable in the late eighteenth.
With the rise of industrialization, the socio-economic divide has grown even larger with the wealthy decrying governmental preference for the poor, women, and minority groups as “redistribution of wealth,” “socialism,” and “reverse racism.” U.S. residents claim that immigrants are stealing American jobs and social services. And talk radio and the Internet fuel such passions with a new and incredible speed. The solution to these divisions is not to dismantle the federal government—the only device anyone has ever come up with in our political history to buffer factionalism.
To be fair, certain criticisms cannot go unaddressed. Some might argue that the conditions necessary for the federal government to control factionalism have disappeared in contemporary American life. Madison envisioned that national elected officials would distance themselves and be detached from the public in their deliberation about the common good. However, in our time, electronic polling conveys to politicians every ripple of public sentiment and continuous C-SPAN coverage and 24-hour news cycles reports every move members of Congress make to their constituents. These are the conditions of reactive, not deliberative, government. Madison also imagined that it would be more costly for factions to mobilize at the national level, which is not true today with advances in both communication and transportation. Most importantly, Madison wanted a limited federal government that would offer very little in the way of spoils for factions. However, the Sixteenth Amendment has given Congress the power of progressive income taxation and with it the power to fashion federal agencies and programs on a scale unimagined by the framers. Thus, factions have a greater incentive to promote their passions and interests at the federal level. This potent combination has created a crisis at the federal level which could be solved, as is argued, by redistributing certain federal powers to the states.
The opposition makes quite an argument and I don’t think every single detail is untenable. Despite the fact that the federal government is far from perfect and there is surely heavy influence by special interest groups in Washington, D.C., I think there is still some considerations that aren’t being made.
First, while it is true that much has changed, if anything, history has proved Madison right about the role of the federal government. There are two principal points of federalization of power—the former (Reconstruction) being less controversial than the latter (the New Deal). After the American Civil War, the federal government broke the grips of pro-slavery factions in several states and set the groundwork to eliminate state and local tyranny of the majority based on race.
Now I’m sure, for many, this is not an improper role of federal government and it did not work beyond its limits or contrary to justice. This leads to the second point. I think many, to the point of hyperbole, overrate the virtues of contemporary states. By this I mean, it seems that some “romanticize,” as it were, the states being much “closer to the people.” They present the states as fountainheads of participatory democracy, of popular rule by ordinary citizens. I am unconvinced that this portrait is entirely accurate. For starters, most states, by their size and unlike in previous times, population, don’t conform to this image so well. If anything, passion and interest play the same role and if this occurs across 50 state governments—the contention and disagreement could prove even more fatal to our country.
I don’t find it convincing that the smaller scale of the states create significant advantages. Like the federal government, most states have developed elaborate permanent bureaucracies (I’m not saying they should be there; I’m saying they are there). Most citizens who participate directly in government do so at the local and state level, sending those who receive their “blessing” to the national government (cf. The Big Sort theory above), therefore, reaffirming that partisanship begins close-to-home. It is at the local level that the problem of faction is most acute. Just because factional capture has gotten easier at the federal level does not mean it has gotten harder in the states.
The arguments in favor of devolution of federal power strike me as doubtful, not that my opinions bear any significant authority. However, I am going to make a suggestion, and perhaps, not a popular one. It seems to me that other impulses might be at work here. It is no question that I am diametrically opposed to libertarianism, which I can scarcely find any evidence to suggest that it nothing but the natural political philosophy of Social Darwinism and all such borne of Enlightenment philosophy and its radical emphasis on individualism to the point that taxation is equated to “government theft” and social or collective responsibility must immediately entail some movement toward “socialism.” I digress…
Decentralization can be an attractive cover for deregulation. President Theodore Roosevelt once remarked, “The effective fight against adequate control and supervision of individual, and especially corporate, wealth engaged in interstate business is chiefly done under cover; and especially under the cover of an appeal to states’ rights.” That is, those seeking to decentralize power from the federal government might anticipate that transferring power to the states will reduce the role of the government altogether, leaving matters previously governed at the national level not to the states but rather to the market.
State governments are weaker than Congress. Many states have part-time legislatures. Few pay their legislators very much. Just as many have imposed term limits on state representatives and who all together have less experience and resources as those at the national level. Comparatively, this will produce markedly less regulation than would by Congress on the same issues, perhaps, even less than a Republican majority in Congress.
Not so surprisingly, I don’t have the answers to the difficult challenges we face. I’m not endorsing “big government.” But I suspect that if the federal government would repose its power and allow more to be taken by the states, it might not only unleash the problem of factions feared by the framers of the Constitution, I don’t think it would solve our problem.
We should not let our hearts be troubled. While we have a moral obligation to work diligently for justice in this life, we should never forget one of James Madison’s most famous remarks: “If men were angels, no government would be necessary.” Yes, yes, indeed. If we seek that which is above and achieve the beatific vision, we may know a life where there is no politics—what a life that will be.
 James Madison. The Federalist No. 10
 James Madison. The Federalist No. 51