Thursday, July 16, 2009

Rethinking the Constitution, again

I had previously written a series of posts inspired by an article by Larry Sabato summarizing his book "A More Perfect Constitution." Now there's another effort to remake the Constitution out, and I honestly think this one is a more serious effort. Robert Nelson wrote an excellent article for U. Maryland's Philosophy and Public Policy Quarterly. I say excellent not because I agree with it, but because it's extremely well thought out.

The original Constitution (including, if you like, up to the first 15 Amendments) was written primarily in an attempt to protect us from a national democracy. That is why, as I have previously noted, the Senate was originally picked by state legislatures. That is why Article I Section 8 carefully lays out the powers allocated to Congress and Amendment 10 specifies that all powers not specifically allocated to the United States are reserved to the States or the people.

But across the twentieth century, beginning with T.R. and continuing mainly through the administrations of Wilson, Hoover, FDR, Truman and Johnson, our Federal Government has moved from one that provides a very limited set of services that are enumerated in the Constitution and thought to be beyond the capabilities of the states to a Taylorist administrative state that seeks to oversee everything from what can be broadcast on media to what food your local grocery store can offer.

Nelson rightly points out that the structure of our national government is ill-suited to handle such detailed work and proposes, thouroughly consistent with Talyor and Wilson, a Chief Administrator to oversee committees of experts to run things outside the necessarily inefficient elected structure. I think his proposal is well thought out and enlightened in its structure of a national administrative state. His chosen example of the failures of the floodwall in New Orleans (which is a seperate, and much better chosen, issue from the response to that failure) is a fantastic example of the failings of the current mishmash administrative state, but also a power that makes no sense for the Federal Government to have. I understand that the Constitution allows for the establishment of Federal armies, but I don't think the framers envisioned that one of the responsibilities of that Army would be creating a permanent city below Sea Level within the boundaries of the United States.

The problem is that I think a national administrative state, though it may well be the inevitable destination of the weight of democracy, is doomed to fall into tyranny. As Tocqueville brilliantly describes in a chapter titled "What Sort Of Despotism Democratic Nations Have To Fear"
Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications, and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent, if, like that authority, its object was to prepare men for manhood; but it seeks on the contrary to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness: it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances—what remains, but to spare them all the care of thinking and all the trouble of living? Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range, and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things: it has predisposed men to endure them, and oftentimes to look on them as benefits.

After having thus successively taken each member of the community in its powerful grasp, and fashioned them at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a net-work of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided: men are seldom forced by it to act, but they are constantly restrained from acting: such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd.
(Yes, I'm shamelessly ripping that off from Paul Rahe and I'll admit to not having read all of Democracy in America, but it's made it fairly high on my to-read list.)

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