Of Majorities and Modesty

Perhaps with some weeks enough dust has settled to allow a few reactions to the recent American elections, with more perspective than can be gathered from listening to reporters interviewing reporters. I will offer views that focus mostly on the results of the congressional elections, drawing upon experience from more than two decades of work in the Senate.

I do not, however, wish to minimize the importance of the elections for governors and state legislatures. In fact, I suspect that the next President of the United States will more than likely be a current or former governor than a Washington politico. Most Presidents, historically, have come from the state governments, which I find encouraging for our federal system. Moreover, judging from what we have seen, former Senators do not seem to make very good Presidents. I cannot name one to whom we can look with admiration for what he accomplished in the White House. There seems to be too much Washington blindness in them to govern effectively for our whole nation.

I am straying to an election yet to come, though. Back to this year’s results, I will begin with the view that we should expect, with the media-scorned Republicans holding the majority in both House and Senate, that the finger of blame for all problems—real or imagined—will be pointed at “Congress.” Disputes between legislative and executive branches will tend to be cast as exposing the nation to great danger as a result of congressional intransigence and/or “politics,” as if no real issues of policy—no questions of life, freedom, or wealth—are involved.

It is happening already. In one bizarre report I heard this week on a major network “news” report, some Amtrak railroad drawbridge in the northeast is over a hundred years old and prone to getting stuck when it opens to let ships pass. Amtrak wants a billion dollars or so to fix it, but, as the “news” story would have it, Republicans in the new Congress “are not looking for ways to spend money.” That was the story. Note the nothing new here. The bridge has been around for a hundred years and did not suddenly become prone to malfunction this November. But the election has now made it a story; a problem is arising, not because the President or the Democrats in Congress for several years did not seek to fix it, but because the new Republican majorities are not interested in spending money. The bridge is not the problem in the story, the Republicans are. Expect more of this kind of media “news.”

Second observation: in recent decades Congress has increasingly surrendered more and more authority to the executive branch, including to the regulatory agencies. The Senate, under the misleadership of Majority Leader Harry Read, has given up even more power and authority (perhaps in another post I will expound on lessons from the Senate of Rome, which by avoiding decisions paved the way for the Caesars—who were all too ready to make decisions). The Democrats retain full control of the executive branch. No small thing. In the remaining two years of the Obama Administration look for more aggressive activity from the White House and the regulators as they test just what they can try by regulation and regulatory fiat, without any detours to Capitol Hill. To quote Jacob Marley’s ghost, “Much!”

When it comes to big Republican plans to make major changes, the quidnuncs will be fed explanations of the thinness of the Republican majorities, along with the “responsibility” of Republicans to share power with Democrats that the Democrats failed to win at the ballot box. When it comes to work that needs to be done, the repeated common wisdom will be that the Republicans have the majority, so nothing should stop them from getting on with the job. There will be little mention that the President can veto what Congress passes, and that Democrats in the Senate will likely filibuster anything that the White House threatens to veto, saving the President the trouble—and political risk.

Yet, there are things that the Republicans, even with working but not overwhelming majorities in Congress, will be able to do. Most important, they get to set the agenda. They get to decide what issues will be debated, what hearings will be held, what will be put to a vote, even when they may not have the votes to break Democrat opposition in the Senate. It will be some relief that instead of the familiar series of proposals to curb liberties, raise taxes, or stifle economic growth and opportunity, the agenda will tend toward ideas of freedom and prosperity, though actual accomplishments will of necessity be modest against the strong opposition of the President and his media allies. I will take modest improvements over the calamitous policy fails of the past several years.

Of Washington and the Life of the Nation

Washington, D.C., is a strange place. I speak from experience. My whole working career has been in Washington. In many meetings with people visiting Washington I have explained to them that Washington is not America. Few have been surprised by the remark. In many visits away from Washington (and in connection with my work I accept nearly every invitation to leave town and be among those whose lives too many in Washington try to run) I am ever and powerfully reminded how different the rest of America is from Washington. I have not been surprised. Kansas City is much closer to America than Washington ever was or will be.

In support of the point I offer a few painful examples. I see one each day that I drive into the city. Looking at the cars around me I note that very few are more than a few years old. At the same time I am impressed by how many of the cars are foreign luxury models. It is typical, when paused at a stop light, to notice that many of the surrounding cars are BMWs, Mercedes, Lexus, Acuras, Audis, and not an insignificant number of Jaguars, high end Range Rovers, and Porsches. I also see a lot more Prius cars and other hybrids. This is not to say that there is anything inherently wrong with driving any of these or any other late model high-priced cars. I merely note it as very different from what I see when paused at a typical traffic light in other cities and towns in America.

As an aside, I am grateful to the people who buy and drive a Prius or other model of hybrid, because they subsidize my purchase of gasoline. Their cars do use less gasoline (though not enough less to compensate their owners for paying so much more for their cars), leaving more for people like me who drive regular gasoline-consuming vehicles. That reduction in gasoline demand helps reduce the price.

The Prius drivers might be offended were I to tell them, however, that I am entirely unimpressed by their conspicuous token of environmental sensitivity. Their purchase and operation of a Prius, after all, is very likely more harmful to the environment than is my more conventional automobile. First of all, they pay $10,000 or more extra to buy their hybrid, and if the price system works at all efficiently that means that making a Prius or other hybrid consumes far more in resources than making a conventional car. Second, the hybrid car fans and their coteries in the D.C. area have convinced the masters of the highway networks to create special less-traveled commuter lanes that the hybrid drivers are permitted to use, meaning that they reduce the efficiency of the highway infrastructure. So, to the Prius drivers of the world I say, thanks for the subsidy, but save your enviro lectures for when you are looking in the mirror.

The automobiles of the nation’s capital region are a sign of an even more painful reality of how Washington is different from the rest of America. It is also the wealthiest part of the nation, by far. On April 25, 2013, Forbes magazine published an article about the richest counties in the United States in terms of average income (Tom Van Riper, “America’s Richest Counties”). Six of the ten richest counties are in the Washington, D.C. region, including the top two and one more out of the top five. While recession lingers in the rest of the nation, Washington and its suburbs are doing rather well, with unemployment down to 5.5%, well below the national average.

I will also say that I am not opposed to wealth and wealthy people. I wish all of the world to be wealthier and rejoice that it is far wealthier today than people of just a few generations ago could have dreamed. But we could all live so much better still. I ache that the policies of governments around the world stifle economic growth and development and hold so many of their people down in poverty. The poor nations of the world are not poor because their people are less talented and intelligent than others, but because their governments are so oppressive and have been for generations.

Therein lies my beef with the wealth of Washington and its environs and the key to its estrangement from America. That wealth is hard to explain from the perspective of value added to the rest of the nation. Washington is basically a one-company town. Unlike other one-company towns, however, it produces little that adds enough value to the lives of others that would allow it to prosper in open competition in free markets. The product of Washington instead is forced upon the rest of the nation, whose productive income is confiscated to keep the Washington wealth-eating machine going.

Try to name an economic product or activity that is not somehow subject to special handling by or permission from someone in Washington or controlled from Washington. After the Dodd-Frank Act, for example, all financial activities have become more subject to direction by Washington bureaucrats than ever before. Today, a bank has to pay more attention to its regulators than it does to its customers. Who gets the best attention out of that arrangement? The same is true for energy producers, communications firms, health care providers, and you can continue the list. All that special handling comes with a toll, payable in taxes, or borrowed from the financial markets, or layered upon private incentive and individual initiative. Today in Washington the most convincing argument for new rules and laws is to announce that something is “unregulated.” When you regulate liberty, how much liberty survives? How much of America survives?

Next year, 2014, will mark the 200th anniversary of the burning of Washington by the British in the War of 1812. The curious thing about the burning of Washington was that it did not make a lick of difference. The rest of the nation went on about its business, little harmed or even affected. The same was true during the Revolutionary War when the British occupied Philadelphia. Rather than end the war it did nothing to bring the British victory. In America the nation was not run by its government, and in fact government was mostly irrelevant to the daily life of the people. That was very different from European experience, where nations were so dominated by their rulers that capturing the capital was tantamount to beheading the country.

Washington is strange to America. That can be tolerable, but only if it is smaller and less significant. Let the real nation draw its life from the people and live where they live their lives without direction from their rulers. Let us have a Washington whose disappearance would not mean much to the rest of the nation.

(First published May 18, 2013)

Of Limited Freedom and Limited Government

I live and work near the belly of the beast, and I can report that these days he is not happy. His belly is rumbling. He has eaten more than he can digest. Watch out, he may throw up. He is already belching.

The federal government is not working, we know and see. Not only is it not working as was intended when it was created by the States, it is not working as designed and over designed in subsequent years. The federal government cannot manage the national parks, the welfare system is breaking down, the national transportation infrastructure takes in more money and yet the signs of dysfunction and decay on roads, rails, and bridges are increasingly apparent. Banks are regulated with thousands of rules while the banking industry continues to shrink: we have fewer banks today than we did in 1891, and their share of the financial markets has been dwindling for decades. So much of what the federal government touches turns to rust and ruin.

Yet the federal government keeps reaching out for more, undeterred by its failures. The Environmental Protection Agency aggressively imposes restrictions on the air we exhale, the Food and Drug Administration announces plans to control the fat in our foods, the new Bureau of Consumer Financial Protection has decided what kind of mortgages lenders can make and what kind of people can get them (acknowledging that many who qualify today will be outside the boundaries of federal standards in 2014).

You can augment this brief sampling of a longer list from your own experiences. This is nothing new, other than perhaps in frequency and intensity. If there is a virtue in Obamacare it may be that its unworkability and its increasingly universal hurt are demonstrating broadly what many have been feeling individually.

Demonstrating the hurt is not the same as redressing it. The beast, however ill, will not cheerfully surrender its prey. During the debate over ratification of the Constitution, one commenter, writing in the Philadelphia newspaper Independent Gazetteer (October 12, 1787), observed, “People once possessed of power are always loth to part with it”, and then warned that the Feds could not be counted on, by their own volition, to do “any thing which shall derogate from their own authority and importance . . . or give back to the people any part of those privileges which they have once parted with”. If that was predictable in 1787, it is painfully apparent today. Perhaps the clearest example is how the Washington power elites have exempted themselves and their cronies from the application of Obamacare while continuing to inflict it on the rest.

And yet, Obamacare is the hurt that keeps on hurting. People will not get over it or get used to it. Its pain and suffering will be felt again and again with each new illness, every new tax, as its strictures reduce availability, affordability, and quality of wellbeing. Wave after wave of new harm will come, astonishing its supporters and augmenting the ranks of its victims until it is addressed.

Americans, much like other people, will put up with much before they are roused to action. Unlike for many other people, our Constitution gives us avenues for action. The Constitution embodies the concept of continual redress within the rule of law to make appeal to extremities outside of the rule of law unnecessary and unthinkable, so long as the principles of the Constitution retain their vitality.

The core principle of the Constitution is limited government, designed to protect the growth and expansion of human freedom. Increasingly, for about a century, the “progressives” in Washington have turned public affairs on their heads. Human freedom has been the focus of limitation, while government enjoyed constant growth and expansion. The end seems approaching, either of the ability of government to manage what it has taken on, or perhaps (and hopefully) when the holders of power can no longer convince enough people that it is all for their own good. Limitation on government may return in vogue as promises of government solutions to feed the beast ring ever more hollow.

The Philadelphia writer of 1787, whom I cited above, was a critic of the Constitution, because he believed it impossible that the power gathered in by the federal government could be wrested from its hands. I remain hopeful that it still can be. Nothing else will work.

Of Dysfunction and Governing the Nation

It seems that no more evidence is needed.  The establishment press, normally loathe to criticize the federal government, has at last become even fond of proclaiming that “Washington is dysfunctional,” although they do so as if announcing something worthy of being “news.”  The Senate has not passed a budget in some four years.  The House of Representatives regularly passes budgets that the Senate will not even consider.  The President—who has no budget-proposing role under the Constitution—proposes budgets that are routinely disregarded while declaring his intent to govern without the Congress.  At the same time, people feel more alienated from their government than ever before, in ever increasing numbers considering the nation headed in the wrong direction, regardless of the party in control of national policy.

In the most recent demonstration of the Washington breakdown, the Congress this year failed to pass the annual appropriations bills before the current ones expired.  Or, better said, the House passed appropriations bills, the Senate demurred, and the President announced that he would veto any appropriations legislation that offered either more or less than what he wanted.

The establishment press, amplifying executive branch efforts to promote panic and stampede the public, announced that “the government would shut down,” and yet 83% stayed open.  Some prominent public operations (that do not require any appropriations to operate) were closed at the President’s bidding, like the Lincoln Memorial and the various veterans and war memorials, but the President seemed to have enough money to travel to various campaign-style rallies to complain about the government shut down.  There was national confusion and consternation.

Perhaps what is news is that there is, at last, general agreement, and the President has helped demonstrate, that the federal government has become dysfunctional, by which we may mean, not doing what it needs to do.  I also notice that this condition has not been getting any better.  In addition to the recent, visible indicators, I would offer some longer-term measures.

Economic growth is depressed and has been declining for decades; employment is also down, with millions leaving the work force.  Government welfare rolls have expanded dramatically, suggesting that a very large portion of the population is either not able to take care of itself or has surrendered its responsibility to do so.  The federal balance sheet approaches ever closer to insolvency.  To avoid being gloomy and doomy, I will not recount dismal education trends, eroding family formation patterns, the precarious condition of national infrastructure, or our worsening international relations (with allies and opponents).

Yet, the federal bureaucracies are far larger, taxes—visible and hidden—are higher, red tape has become ubiquitous, and federal subsidies have fallen behind promises even as they outdistance the ability of the federal government to pay for them.  If government is the solution, then why is more government not making things better?

How could this happen?  Have we as a nation lost our ability to govern ourselves?  Have “partisan politics”—as though something new rather than part of our national intercourse since 1796—frozen the ability to consider, set, and follow national priorities?  Have the problems of modernity exceeded the ability of policymakers to resolve them?

A case could probably be made for each and all of the above explanations.  I think, however, that they are all symptoms of a more fundamental problem, one recognized long ago, at the founding of the nation.

As early as 1787 the Founders recognized that a central government would not work for the United States.  Even with just the original 13 states and 3 million people, the nation was too vast to be governed in detail from one capital.  That is why they created a federal system, under which the few, truly national concerns—such as national defense, trade, international relations, national standards of measures and sanctity of contracts, preservation of freedom and the rule of law, together with the means to fund these activities—would be handled by the national government.  All else was reserved to the States.

Note that I did not say given to the States.  Remember, the States and the people in them created the national government.  The States and the people in them gave to the national government its authority and power.

Today, the United States stretches across a continent and reaches to the isles of the sea, with over 300 million inhabitants.  It is even more impossible than ever to govern from a single capital, by a centralized government.  We all have seen the evidence, in addition to the growing dysfunction of Washington.  Everyday, people all over the nation struggle with rules made by the federal bureaucracies, rules that are often nonsensical where people live and work and play, rules governing the volume of water in our toilets, the content of our children’s food, the gasoline in our cars, the content of our communications, the form of our financial affairs, and many other elements of daily, personal life.  Even worse, they have become too vast and complex to be administered faithfully or complied with loyally. 

We could fault the executive branch bureaucrats who make them or the Congressmen and Senators who write the laws, but these people are no smarter or dumber than the rest of us, and just as well meaning.  They just have an impossible job.  No one can know enough to run so many things from Washington.

Consider the big issues that seem to have Washington all tied up in knots—in turn afflicting all the rest of us.  The new national healthcare systems are breaking down even as they get started.  National rules for farmers have Congress stuck over who should get subsidies and who should not.  National tax plans designed to take from some to give to others divide the people into winners and losers.  Environmental regulations impose costs on some in order to subsidize someone else.  National education programs follow each other in rapid succession, each with a new and high-sounding name, none of which do much to stem the continued decline in education.  And ever present with all of these national rules are unintended consequences that were not and probably could not be foreseen but which crush people’s businesses, destroy jobs, and disrupt lives.

These are all issues that the Founders never intended for the national government, issues that if governments should address at all should be left to State and local governments, where decisions can be made closer to the people who have to live with the results.

We have at hand a better, competent government, or at least its blueprint.  It is found in the structure of our Constitution that created a federal system.  Our Constitution is the recognition that only through a system that keeps governing as local as possible can a great nation exist in union and harmony.

What we are seeing play out before our very eyes is that our nation not only should not be governed by a central authority, but that it cannot be.  The sooner we recognize that and return to the federal plan of the Founders the happier, and the sooner Washington will be able to function as it should for the benefit of all rather than frustration for all.  The task is too big otherwise and doomed to failure.  It will not be a pleasant failure.

Of Hope and Just Getting By

Working in Washington, D.C., and living in the D.C. suburbs as I do, I am fond of saying that I eagerly accept opportunities to get away from the Capital region and spend time in real America. That has always been a bit of an overgeneralization, expressing a usually correct but not unerring description. Washington is not real America, but there are parts of this nation that have already gotten ahead of where the smart people of Washington have been able to take the nation. Those places are not what I mean when I refer to real America.

Our large, industrial states are examples of misrule by those who assume that their ability and right to rule, and the inexhaustibility of the wealth of their cities and states, are given and immutable. Wrong on all assumptions. These states, once beacons of progress, growth, and development, are wastelands of decline: economic, social, moral, and even demographic. Millions of people—those who could—have been leaving these states for decades.

The recent bankruptcy of Detroit is a prominent symbol of where this misrule leads. At its prime a bustling metropolitan center approaching two million in population, Detroit has been steadily falling from its prime to a dilapidated city of barely 700,000 who remain to wonder where have the productive people gone, and what is to be the future?

I recently returned from spending several days in such a place, mixing with, talking with, associating in the daily lives of the ordinary people living there, people with whom I had lived as a wide-eyed teenager a generation before. I am not referring to the urban center of the state. The region I visited has been for 150 years a mixture of industrial and rural economies, and as I recalled, a happy mix. Now the villages and towns are actually smaller than in my youth and shrinking. The number of productive enterprises is fewer and those that remain, smaller. The schools have remarkably fewer students and struggle with how to keep their programs going with declining enrollments. The largest employers are the instruments of government welfare services—as well as a couple of new state prisons—and the local hospital network.

The people were friendly and pleasant, yet something did not feel right. I understand the wisdom that “you can never go home” if you expect to find all the same. I expected change. New technologies were present, hand-held electronic devices ubiquitous, a fair number of new cars, if not the foreign luxury models so common in Washington. It was not, though, a happy place of happy people. Why?

It was only near the end of my stay that I recognized the ailment. The region has become a land of small hope, particularly small hope of progress. People there were not living their lives to get ahead, to advance, to build a better future (I cannot recall seeing a single new house in the several days of my visit, though the dump north of town is working on its third mound). Most of the people in these formerly vibrant communities, with what I remember as bright expectations for the future, were now living their lives to get by, just to get by, to get on from day to day, holding on to what they have.

Taxes are high, so it is not easy to keep what you earn. Regulation makes it hard to do anything new. For those reasons, businesses have been leaving, and so have the talented youth. Talk with the people about their daily lives, and not long into the conversation the problems of wrestling with this or that regulation or working with some officious government apparatchik will come up. And yet so many of the people expect the solution to their problems to come from some new government program or service rather than from their own effort.

I say “most” of the people are so ailing. There are a few exceptions, and interesting ones. Two religious groups seem to be growing—and not the establishment churches, whose places of worship, grand and beautiful buildings, eloquently testify to bygone days of prosperity but now show signs of neglect. The two groups are the Latter-day Saints, whose Church was founded in the area nearly two hundred years ago and whose membership is growing steadily, and the Amish/Mennonites, who in recent years have moved in strong numbers to take advantage of neglected farm land. There are also some very prosperous farm businessmen, also gathering up land and putting it into obvious productivity. Finally, I would mention the growth of mini-wineries, although this latter movement seems after about 25 years to be approaching maturity.

Hope is an essential ingredient in happiness. Hope comes from the belief that a desirable future is attainable, so much so that it draws out extra effort to realize its promise. Genuine hope in your own effort can be contagious, and those who have it can help revive communities. You cannot do much to give hope without that personal effort, but hope comes naturally with that effort and the opportunity to keep the fruits of one’s efforts. Our nation’s founders were filled with hope and with it created the greatest nation on earth.

There is no hope, though, in just getting by. In the end, you cannot get by if getting by is all there is to your hope. No future there, only decline. For hundreds of years people have been leaving their lands where they struggled to get by and have been coming to America, to them a land of hope and the freedom that feeds hope. When I leave Washington to look for America, that is what I am looking for. I hope to find it ever.

(First published July 20, 2013)

Of Global Poverty and Washington’s Struggles

It was tough getting out of Washington this evening.  You might suppose that with the partial shut down of the federal government, traffic in Washington would be on the light side.  I have not seen much evidence of it on the streets of the city or in the Washington suburbs.  I know that many, many people must be out of work, because the establishment media keep saying so, television and radio.

I do not refer, however, to experiencing the normal evening outbound Washington traffic.  Traffic was unusually heavy today, especially on 19th Street, N.W., south of Pennsylvania Avenue.  The world financial diplomats are back in town to attend fancy parties in the cause of poverty.  For several blocks the lanes were clogged, nose to tail, with their black limousines.  The global party goers gather in D.C. each October two out of every three years (they take one year off to congregate somewhere else for variety).  The World Bank and the International Monetary Fund are holding their annual meetings as they have for going on 7 decades.

Inching along 19th Street, which is Main Street for the World Bank and the IMF (they have bought up nearly all of the Washington real estate between the White House complex and George Washington University), I was able to have a long, good study of a series of monster posters draping the north side of one of the World Bank office buildings, posters reaching no less than eight stories high, proclaiming the simple bold motto, “End Poverty.”  That is a good idea, probably the product of a high level committee of experts tasked with developing a theme for the Annual Meetings.  It conveys a sense of purpose, a reach for meaning.  The professional poverty bureaucrats have done little to end global poverty, but they have spent hundreds of billions of dollars to maintain it—at least judging by the results.

In all fairness, perhaps the annual World Bank/IMF festivities help to fight poverty in the Capital Region.  Washington, D.C., and the Maryland and Virginia suburbs are already thriving from the Administration’s economic stimulus program.  They have some of the lowest unemployment rates in the nation, with the exception of the pockets where the energy fracking revolution is booming.  Nevertheless, at least for a while Washington is drawing money from the rest of the World as it does every day from the rest of the United States.

Focusing on ending poverty is a good idea, and there are ways to do it.  Undoubtedly, much of the discussion, however, in the IMF and World Bank meetings this week has focused on the budget and economic crisis in the United States.  “Dysfunctional” is surely a common word used in conversation by the visiting diplomats in the salons to describe the condition of the U.S. Government, since that is the label regularly applied by the establishment media talking heads, and it would resonate.  The vast majority of the financial officials attending come from nations where government is much more efficient.  Their economies may be dysfunctional, but their governments are models of efficiency.  What the big guy in the big office in the big house wants he gets.

The American system is a lot messier.  The big guy in the room without corners in the big White House does not seem to be getting what he wants, at least not since the 2010 election.  After that election that put a majority of opposition Republicans in control of the House of Representatives, and reelected them in 2012, he has declared his intention to govern without Congress.

The last couple of weeks have brought home to the President that he cannot quite do without Congress.  Congress still has some role, albeit one greatly diminished from that extended to it by the Constitution.  It turns out that the “government shutdown” actually has shut down no more than 17% of Federal Government operations; 83% continues to pump along spending money with no attention by Congress needed.

The chief executive is trying to magnify that 17% by making its absence as painful as possible, the rest of us the insect absorbing the sun’s rays under the focus of the glass in the President’s hand.  The executive hope is that public pressure will force the Congress to surrender what remains of its authority and agree to whatever the President demands, backing away from asserting any policy role of its own.  Just give the President a clean bill to keep doing what he has been doing, and move along.

Congress is not making that easy, passing bill after bill to open or ameliorate this or that hardship.  The President has rejected nearly every effort.  Of course, that is odd if you buy the rhetoric from the White House that the Congress has taken hostages.  Working with that metaphor, I know of no hostage examples where anyone having the interests of the hostages at heart would object to release of any one of them.  Who would send the released hostages back to their captors and say, “we will receive no freed hostages until you free them all”?  Yet that is the White House position.  Who is hurt by that?

You would not hear such questioning from the establishment media.  They are doing their best to hide the fact that what we are experiencing is a constitutional crisis, a battle that our Founders anticipated, which is why they created a structure of shared power that requires cooperation of all branches and domination by none.  The media are happy demeaning the struggle as a sporting event with winners and losers, and time clocks, and sports commentators, and favorite teams.

They miss the central point.  We cannot suffer to have any team “win”, and we are not spectators at a stadium.  Our freedom is at stake.  The design of the Constitution is that there can be little governing without all three branches being involved, the whole nation and its many parts represented.  Today we are engaged in a great struggle testing whether that structure of government, limited to prevent tyranny by either the President, the Congress, or the Courts, can endure.  So far it has.  The partial government shut down is the evidence.  Were that to end by either one branch or the other capitulating—rather than House, Senate, and President coming together—it is our freedom that would suffer.  There would remain much less check on the arbitrary and capricious actions of the victor.

Many of the elite financial diplomats at the World Bank/IMF meetings would understand that result and feel right at home.  American government, for 200 years a mystery to the rest of the world, would then become much more understandable and familiar to them.

Of the Constitution and the States

It must be the least employed part of the Constitution. In fact, “never used” may be a better description. I am not sure but that it may be the one part of the Constitution not only never used but never really tried.

I draw your attention to Article V, which offers procedures for amending the Constitution. Article V has been successfully invoked 27 times–25 or 26 times if you reconcile the count for the fact that the Twenty-first Amendment repealed the Eighteenth Amendment, the prohibition of intoxicating liquors.

So why do I refer to Article V if it has been used on more than two dozen occasions? I have in mind an important but neglected part of Article V. Article V provides two methods for amending the Constitution. Only one method has been used. We might call that the Washington Method, since it relies upon the Federal Government to propose amendments and send them to the States. The other, unused method I would call the State Method, as it relies upon the State legislatures to initiate the amendment process.

Article V is short. Here is the text in full:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. (Emphasis added)

Constitutions are foundational documents and so should not be changed any more often than you would consider changing the foundation of your house. Change the foundation and a lot of other things change, too, and if you are not careful you can weaken the whole structure. But the Founders of the nation knew that they were not omniscient and that the need for adjustments or even corrections to the basic plan of the government would surely become obvious over time.

For example, the original process for counting electoral votes for President and Vice President almost put Aaron Burr in the White House instead of Thomas Jefferson in 1800. Jefferson was the candidate for President, Burr the running mate, and both received the same number of electoral votes, but the electoral college ballot under the Constitution did not distinguish between President and Vice President. The two were tied, and Aaron Burr got the notion that maybe he should be President instead of Jefferson. The House of Representatives had to sort it out. Afterwards, this flaw in the Constitution was corrected by the Twelfth Amendment.

The first ten amendments, the Bill of Rights, were made almost immediately and were demanded by several states as essential conditions for their ratification of the Constitution itself. We could very appropriately consider those ten amendments as part of the original Constitution since it would not likely have been ratified without their promised addition. In that view, the Constitution has subsequently been amended little more than a dozen times in over two centuries.

It is also worth noting that Congress has proposed amendments that the States have subsequently and appropriately turned down. One such proposed amendment that never got past the States was approved by Congress in 1861, denying Congress the power to interfere with slavery. The Constitution does not, however, limit the power of the States to only considering amendments that come out of Washington. It provides to the States the power to initiate amendments of their own.

Mark Levin, in his recent book, The Liberty Amendments, argues that it is important for the States to exercise that authority. He offers some suggestions for amendments that the States might consider, designed to restore the balance between Washington and the States that the Founders envisioned when creating our federal system.

It is a sign of how distorted things have become that using the word “federal” today almost always leads one to think of the government in Washington. Yet our federal system was designed specifically to preserve State authority and limit the power of the national government. Levin argues that those limits have been dangerously eroded, especially over the last century.

Consider the many aspects of our daily lives that are determined one way or another by Washington laws and regulations rather than by the States whose representatives are closer to the people whom they govern. The list would include the fixtures in our bathrooms, the design of our cars, the food offered to children in school lunch rooms, the subjects that they are taught, the products and services offered by banks, and now the healthcare that we can receive.

A major consequence of the problem is that the power appetite of Washington has taken on more than it can handle and is seriously threatening the health of the nation. Regardless of which parties are in power or whether power is divided, Washington is becoming increasingly dysfunctional. But the professional politicians in Washington will not let go of the power that they have taken from the States, even as they sink under the weight.

What has tied Washington up in knots this fall? It is conflict over Obamacare. Would that even be a problem if healthcare were left to the States to regulate? Congress is having trouble passing a farm bill because of apparently unbridgeable differences over food stamps. Would Washington be stuck in the mud—and at the same time affecting all the rest of the nation—if farm and nutrition policies remained in State hands? At the same time, many States are facing major budget problems coming to grips with paying for programs forced on them by the national government.

The State Method for amending the Constitution was put into the Constitution specifically for the time when the national government was the problem and would be incapable of solving its own problems. Surely that time has come. Washington has gotten tied up in a Gordian knot of its own devising. The wise Founders of the nation apparently knew that things could come to this. It is time for the States to exercise their constitutional power to cut the knot.

(First published September 22, 2013)