Sunday, September 25, 2011

How to Fix our Broken Government

(Note: There is a short version of this essay and a long version. The short version is here:

The constitution.

What you see below is the long version. And boy is it long. I haven't posted over the past week because I've been working on this post: it contains at least 7 days worth of material! It rambles a bit, but overall I think it's good. For reader convenience, I've broken it into 3 parts: read one per day, and it's manageable. Enjoy!)

Any non-biased observer will tell you that our nation is in the shitter. Our government has become a massive, tangled web of bureaucracy. We are 14 trillion dollars and counting in official debt, with hundreds of trillions of dollars in unofficial liabilities expected in the future. We are engaged in several costly wars overseas that don’t seem to be making us any safer. Our government is unpopular abroad, and even more unpopular here! Both parties appear far too polarized to address these problems in any constructive, bipartisan way, and even when they do the results haven’t been good. As a result, public confidence and trust in Congress is at an all-time low, and anti-incumbent sentiment is gaining traction in both parties. These are the facts.

How to address those facts is where people disagree. For much of American history, people have blamed the countries problems on bad policies, and believed that to solve the country’s problems we had to correct those policies. This is the argument Republicans will employ in the upcoming election, and the argument that’s most common in politics in general. But while it is certainly true that we do have bad policies, I feel this is a product of our problem, not the cause of it. Rather, the root of these poor decisions is a systemic flaw in the powers that either party are legally allowed to adopt. Furthermore, I believe our problems will largely persist, regardless of which party controls the White House or Congress, until that problem is addressed.

That problem is that lawmakers are ignoring our constitution for personal political gain. Our government is broken to the extent that it has assumed more power than it is constitutionally granted. The unchallenged assumption of this power has resulted in unsustainable spending and an increased intrusion of our liberties, and will continue to do so until we return government to its just constitutional scope.

Now, obviously, I don’t want to return to the original constitution exactly as the framers wrote it. Most of the amendments to the constitution have been good; for instance, abolishing that whole slavery thing (13th amendment). Voting rights for all was pretty neat (14th amendment), especially when that included women (19th amendment). The problem is not the official changes to the constitution in the form of amendments, but the unofficial changes in the form of laws that completely ignore the words and intent of the framers.

To understand this problem in full, we need to look at three main things: how it arose, how it does damage, and how to fix it.

Part I: The Causes of the Problem
The seeds of this abuse were planted during the presidency of Woodrow Wilson, in 1913, through the creation of both the Federal Reserve System and the first Federal Income Tax. The tax was low; only 6% on income earned over $250,000, but it set the precedent that Congress was allowed to disproportionately take money from the rich in order to fund whatever programs for everyone. It was constitutional, but that doesn’t mean it was good; by 1932, the top tax bracket was 58%, and the government’s ambitions were suddenly easy to fund. The creation of the Federal Reserve granted a secretive, centralized group of appointed officials unlimited power to manipulate the value of our money. The result has been tremendous long term inflation that keeps the poor poor, the fueling of several dangerous bubbles that needn’t have grown, and the extension of several recessions that needn’t have lasted that long.

But if the ideological seeds were planted under Wilson, the mindset truly germinated under the nurturing care of Franklin Delano Roosevelt. Even the most liberal historians admit the New Deal represented a substantial shift in our interpretation of the government’s role in society. That’s essentially code for “democrats began ignoring the constitution because it was inconvenient to their agenda.” Government power grabs tumbled out of Congress under Roosevelt’s guidance, measures that at any other time would have been unthinkable but which people tolerated because of the crisis. Much like people gave George Bush a blank check after 9/11 (resulting in the PATRIOT Act), so they did with Roosevelt during the great depression; any action taken by the government designed to help alleviate the situation was viewed as necessary, and to hell with the constitution.

To their credit, the Supreme Court tried to stand their ground at first. They had the prudence to recognize that even extreme poverty did not justify abusing the powers granted by our constitution. One justice called the President’s assumption of unconstitutional emergency powers “a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need”. If we could not abide by the rules when it was difficult to do so, they reasoned, we could not do it at all. But their noble stand rested precariously on 5/9ths of the Court, and one justice was hardly enough to stop a man as powerful as Roosevelt. The confrontation that followed is one of the most embarrassing affairs in the history of the presidency, and one that so many historians intentionally overlook when evaluating FDR’s leadership and character: the court packing scandal. FDR didn’t like that the courts were stopping his agenda, because he didn’t care about the constitution one iota. So he literally tried to simply jam through legislation that allowed him to appoint 6 more judges to the Supreme Court (one for each member over 70 years old, he said) so that he could get his way! He didn’t even try to hide his intentions, basically admitting that he wanted to ensure the court voted his way. The bill was very unpopular and failed to pass, but it achieved it’s desired effect nonetheless. Chief Justice Owen Roberts, who’d been opposed to New Deal legislation before, caved and began voting with the other side. This gave Roosevelt the majority he needed to jam through the rest of the programs on his wish list.

This “switch in time that saved nine” may be more accurately cast as the switch in time which damned the nation. The New Deal is when the political left became the political right, when the classical liberals were suddenly recast as conservatives and when it became politically acceptable to grant the government seemingly unlimited control over our lives. Social Security, the Federal Housing Administration, the Securities Exchange Commission, the Wagner Act, the Works Progress Association, the Tennessee Valley Authority, the Farm Security Association, the Fair Labor Standards Act, the Agricultural Adjustment Act, etc: virtually every corner of American life was regulated in some way. It would have made the framers roll over in their graves. It doesn’t matter that the only major programs that are still with us today are the first three on that list; the fact that the others lasted for 40 years or so before being repealed legitimized the governments RIGHT to control things it simply couldn’t before, and established judicial precedent saying as much.

A prime example is the case of Wickard vs. Fillburn in 1942. Congress had enacted a law which placed a ration on the amount of wheat each farmer was allowed to grow. A farmer who wanted to grow more wheat than this so he could feed his cows, without selling any of it, was ordered to burn his excess crops. He refused, and the case went all the way to the Supreme Court. The court ruled against the man on the basis of the commerce clause, which reads that Congress has the power to “regulate commerce with foreign nations, among the several states, and with the Indian tribes.” The initial intent, I believe, was to regulate commerce involving one state trading with another; under the Articles of Confederation, each state could levy huge tariffs on other states, or refuse to recognize their currency, or other things which impeded growth. The framers wanted to address this problem. They did not want to grant the federal government an unlimited right to regulate anything for any reason; if they had, they wouldn’t have enumerated the three specific types of commerce which Congress may regulate, but would’ve merely said “regulate commerce.” But the newly FDR-friendly SCOTUS disagreed. Even without selling his wheat across state lines, and even without selling it at all, they reasoned that the mere action of growing wheat which could potentially be sold increased the supply and could potentially affect the trade of wheat in other states. They equated the act of growing a plant for private use to engaging in “interstate commerce”, enabling Congress to regulate his activity. The farmer was forced to burn his “excess” wheat fields, and the government’s power to do just about anything was born.

As I described above, under any reasonable interpretation, this could not have been the framer’s intent. Why would they have listed the three types of commerce the government can regulate if they meant the government can regulate any activity that remotely involves money? Everything costs money; therefore, they can regulate everything. It’s not restricted to the commerce clause, either; dozens of constitutional passages have been abused in this way. If the power was meant to be unlimited, why include the limit? The members of the court are smart enough and knowledgeable enough to recognize and understand this notion, because it is the guiding principle of the constitution which they have sworn to defend. It is not ignorance of the purpose of the constitution which led them to rule as they did, but indifference to that purpose in the face of political pressures and in the face of their own arrogance. It is my firm belief that they were not attempting to interpret the intent of the framers when they ruled on Wickard vs. Filburn, or on the many after it which have reaffirmed this line of thought. Rather, they were attempting to appease lawmakers who viewed these powers as “necessary”, lawmakers who were urging them to practice “judicial restraint” by allowing the laws to stand not on the basis of their constitutionality, but on the basis of their popularity. These decisions were based on a reluctance to rock the boat, on a hesitance to reverse the actions of popular elected officials. Frankly, they were based on cowardice.

With the Supreme Court no longer an effective check, the only remaining obstacle to increased government power was popular opinion. Popular opinion is fickle, and if the public is caught in the right mood, they’ll happily vote their liberties away in exchange for a promised benefit. Or, more accurately, they’ll happily vote someone elses liberties away in exchange for a benefit! So politicians learned to offer benefits, pouncing on any opportunity to expand their power. Spurred by youthful liberal activism and heightened national unity in the wake of the Kennedy assassination, LBJ’s “Great Society” gave us Medicaid, Medicare, the “War on Poverty”, and a host of other government growths. Soon, the view of the constitution as a “living document” began to emerge; “if the constitution is supposed to represent We the People”, goes the argument, “why can’t the people’s representatives update it with the times to reflect changing sentiments?” They can; this process is called an amendment. But in the absence of sufficient support for an amendment, you can’t just ignore the words as they’re written, no matter how inconvenient or inefficient you feel those words are. If you could, why have a constitution at all? The constitution’s contents are subject to change, but the principle of having and abiding by a constitution is timeless. A constitution establishes the laws about what laws can be made. It’s designed as a limit on government, but it no longer limits government. Thanks to these court decisions and the principle of the living document, lawmakers have effectively killed the document by refusing to acknowledge its boundaries on their own power.

Part II: The Effects of the Problem

We’ve historically examined how politicians acquired the ability to abuse people’s rights. But we haven’t yet identified their motivations for the abuse. Even if they have the power to do so, why would politicians promote policies that harm the country, as our policies clearly have? The answer is personal benefit. That sounds cynical, but it’s true. Expanded government power sets the conditions for corruption. It’s usually not a premeditated choice, and it’s sometimes not even a conscious choice; it’s very easy to convince oneself that policies aimed towards selfish interests are actually serving the greater good. But increased government control over citizens provokes increased citizen incentive to control politicians. Let me explain.

Because of their newfound power, politicians can now give special perks and benefits to different groups of citizens in exchange for political support. They do this in the form of tax breaks, entitlement programs, private contractors, regulations that target certain companies more than others, etc. Many of these programs originate for good intentions; helping the poor, the elderly, veterans, a minority, the disabled, or some other group that is perceived as oppressed or disadvantaged for whatever reason. The problem is that the government cannot give anything to anybody without first taking it from somebody else. If it gets into the practice of giving things, it must get into the practice of taking things. There is a limited pool of resources, and everybody wants a share. The result is that the law no longer affects all citizens equally, but helps one faction at the expense of others, and citizens must now compete to make sure they’re in the former group. George Bernard Shaw once said that “The government that robs Peter to pay Paul can always depend on the support of Paul.” It is in this way that the government has now become the mechanism by which everyone tries to live at the expense of everyone else.

This leads to corruption and special interest pandering. If politicians have expanded power over business, businesses have an expanded stake in the outcome of political elections, and an expanded incentive to heavily support some politicians over others. Same goes for all interests, not just business interests; the more power the government has, the more people are affected by how political decisions pan out, and thus the more money becomes a factor in political elections. The more money becomes a factor, the more politicians need to pander to special interest groups to stay in office, and the cycle continues.

In fact, the cycle is exacerbated because if one competitor gets an edge, everyone else needs to get an edge to keep up, in both business and politics. In baseball, if one first baseman is using steroids, wins the batting title and earns a huge contract, every other first baseman feels added pressure to use steroids. If they don’t, they may be relegated to the minor leagues, or get a lower contract than an equally talented player who juiced. In Congress, if the guy running against you is having his campaign funded by a private interest in exchange for favors, you need to find your own allies if you want to keep up. And as a business, if your competitors have politicians in their back pocket, you need to revamp your own lobbying group to cancel out their advantage. Returning to the sports example, you have to offer the referee a bigger bribe than the other team offered him if you want the calls to go your way.

The result is that alliances form between the government and whichever factions have the most power, the most money, and the most chance of getting politicians reelected. This leaves the less powerful or minority factions at the mercy of government’s whim.

The framers anticipated this problem when they wrote the constitution.


Ideally, when voters are deciding who to vote for in a federal election, they should ask “Which option is best for the United States?” But with expanded powers and an increased role of government in our lives, more and more voters are asking themselves “Which politician will help me the most? Or my business? Or my Senior Center? Or the roads in my town? How much pork barrel spending will he bring back to us? Will he give me a bigger welfare check? More unemployment benefits? Free healthcare? Does he favor the regulations that are going to kill my business? Does he favor the regulations that are going to harm my competitors? Does he favor the tariffs that are going to drive up my operating prices?” People want what’s best for the country, sure, but even more so they want what’s best for them. Kennedy’s plea to “Ask not what your country can do for you, but what you can do for your country” was noble and all, but it was na├»ve to expect hundreds of millions of people to actually abide by his words. If a politician offers his constituents a benefit, people aren’t going to say no! In fact, they’ll probably vote for that guy over the guy who won’t offer that, whether or no it’s best for the country, whether or not it is fair to somebody else. Again, the government that robs Peter to pay Paul can always depend on the support of Paul, and Politicians have to do this for their constituents in order to compete. When you string 8,000 of these earmarks together, you get something called the stimulus. And when you string enough stimulus’ together, you find yourselves 14 trillion dollars in debt. The present state of the nation is a direct result of this principle.

Part III: The Solution to the Problem

I am not the only one who recognizes this problem, and I am not the only one to propose a solution. For decades, Democrats have been proposing “campaign finance reform” bills, trying to sever the ties between political success and money. These bills set limits on how much any one person can donate to a politician’s candidacy. Of course they like this idea, because it limits the role the wealthy (read: republicans) can play in elections, shutting up their opponents and silencing dissent.

It may seem ironic to note that such campaign donation restrictions are an unconstitutional violation of the right to free speech, seeing as much of this essay is about how much politicians don’t care about this whole “constitution” thing anymore. But even if they were constitutional, they do not address the root of the problem. The problem is not that rich people, or any people, are giving too much money to candidates to pursue their private ambitions. That is a consequence of the problem. The problem is that they need to move government out of their way if they want to freely pursue those ambitions in the first place. The problem is that their liberties now stand to be taken, because they are no longer protected by the constitution, because government action is no longer limited by the constitution.

Democrats claim to want to move “special interests” out of politics, so that the “voice of the people” can be heard, but in reality those two terms are one and the same. What are “the people” but an assortment of many, many special interests? Each individual person, regardless of wealth, acts according to what he perceives to be in his best interests. Always. Infallibly. This doesn’t deny selflessness; one may view charity as “in his best interests” because it will make him happy (if he’s a good person), or get him into heaven (if he’s a Catholic or a Buddhist), or make him popular with religious voters (if he’s a politician!). Whatever his incentive, he acts because he wants to, because it serves him to do so. Dale Carnegie once said “Nobody does anything unless they want to do it.” Incentives can range far and wide, and be noble or ignoble, but all actions are driven by one incentive or another.

The groundbreaking beauty of the United States Constitution was that for the first time in human history, it established an effective, just way to balance all of these interests. It created a system of checks and balances that, as Madison put it “In the first place, enabled [the government] to control the people, and in the next, obliged it to control itself.” What Democrats call “special interest groups” Madison called “factions”; groups of people pursuing a common, shared interest. The constitution was perfect because it enabled the largest factions to get the largest say at the polls, while simultaneously protecting every faction, even the smallest minority, from having their rights to “life, liberty, and property” take away. It laid out what everyone was entitled to, what the government could do to protect those rights, and what it couldn’t. But today, the government can do whatever it likes to help whatever faction it likes as much as it likes, allowing the larger factions can trample the rights of the smaller ones.

Therefore, the solution to our problem is not to equalize the amount of airtime that people get in the debate over whose rights get trampled. The solution is to reestablish, respect, and protect those rights by returning government to its just constitutional scope. That means empowering the courts to say “no” to unconstitutional bills in the past, present, and future (I’m crossing my fingers on the Individual mandate). It means voting for politicians who respect constitutional boundaries (I’m crossing my fingers for Ron Paul!). And mostly, it means recognizing that individual rights are not something that can be toyed around with on a whim. Infringement on life, liberty, and property should not be merely an unfortunate side effect to be weighed in the pros and cons of a political proposal; it must be an immediate end of discussion for that proposals viability. Any government restrictions on anybody’s rights for any reason must be immediately off the table. That is the purpose of a constitution.

Realistically, will we ever get there? I’m not sure. We’ve never been there before. By the time all the bad parts of the original constitution had been amended and blacks finally got the right to vote in the 60’s, the abuse of the constitution’s just portions had already begun. We’ll never have a utopia. But I’m convinced that maximum freedom and minimum government is the closest we can get, and that’s what a constitution provides.

1 comment:

  1. Look at the following:

    That plan should fix everything alright.