Saturday, October 31, 2020

Who Has The Power?

One of the unchanging features of modern American politics is that nearly every faction spends a lot of time loudly insisting that the only reason the country isn’t governed to its liking is because the opposite faction holds all the power.

It’s natural to think this way. When you realize that your own party is always falling short of what it has promised to do – whether that involves the Republicans not building the wall, or the Democrats not reducing income inequality, or what have you – then it makes sense to suppose that someone, somewhere, must really hold the power that your side only wishes it had.

Go to most conservative sites and you will see people vehemently denouncing the liberal elite that controls all of America’s most powerful institutions, and uses its power to govern as it wishes without regard to the opinions of the common man. Go to liberal sites and you will find an equal volume of invective deployed against a racist, plutocratic, conservative gerontocracy, which maintains power through gerrymandering and voter suppression even though most Americans dislike it and want to see it gone.

In its extreme form, the “someone else has all the power” meme produces conspiracy theories claiming that some hidden organization – be it the United Nations, the Zionists, Skull and Bones, or whoever – is governing America from the shadows. I’ve written before about why the conspiratorial worldview, despite being psychologically appealing, is wrong.

The milder version of this meme – the one which simply claims that the other political party has all the power – is also wrong.

Since most of my readership is on the rightward end of the political spectrum, they’re probably wondering what has become of the “liberal elite that controls all of America’s most powerful institutions, and uses its power to govern as it wishes without regards to the opinions of the common man?”

Well, it exists, and it’s the reason why American politics has mostly moved leftward over the last century. But this isn’t the same thing as saying that the Democratic party is all-powerful.

For example, where were the omnipotent Democrats when the Supreme Court decided Bush v. Gore? What about when the United States invaded Iraq in 2003, or when every attempt to slow down climate change by restricting CO2 emissions has failed miserably? Why didn’t they stop the GOP from gerrymandering the House in 2010?

I could go on and on. But I started this post by asking a question: “Who Has The Power?” Since both Republican and Democratic office-holders are constantly finding their actions stimmied by the other side, and since there aren’t any grand conspiracies secretly running things, and since I’m not na├»ve enough to mistake our present system for the Founders’ “checks and balances” working the way they’re supposed to, I’m going to need to find another answer.

Three answers, actually. After pondering a long time on the question of who holds ultimate power in America’s present-day system, I’ve concluded that there are at least three answers, none of which, taken on its own, is the full truth. Here they are:

1.      The Supreme Court

If you are looking for the man, or body of men, which holds the summum imperium in the present-day American system, then it isn’t hard to find. The Supreme Court is in charge. The law here is whatever the Court says it is.

This is why when Justice William J. Brennan, probably the most influential liberal to ever sit on the Court, quizzed his new clerks on what the most important rule in constitutional law was, he bemusedly listened to their speculations that it might be the separation of powers, or the freedom of speech, before revealing the real answer, the Rule of Five. “If I get five votes,” he said, “I can do anything.

It hasn’t always been this way. Prior to the 1950s, judicial review existed, but it was subject to more checks and balances than today, and it was generally a conservative force. That is to say, although the Justices would occasionally strike down new and controversial laws, all the major innovations in American policy, such as central banking, women’s suffrage, Prohibition, and the New Deal, were still done through Congress or the state legislatures.

Then, under Chief Justices Warren and Burger, the Court transformed itself from what Alexander Hamilton called the “least dangerous” branch of government into a dictatorial committee with roughly the same powers as the Soviet and Chinese Politburos.

In short, by declaring itself the protector of every minority group who felt that its rights were being violated by more democratic institutions, the Warren Court became America’s Top Legislature. (That’s what “sole interpreter of the constitution” is a euphemism for). The Court then used this new power ruthlessly, to make a lot of dramatic changes to American law and policy that went quite a ways beyond suppressing the racial injustices which originally justified its power trip.

While this was going on, both during the period of rapid changes that ended around 1975, and during the calmer times since then, most American politicians have played coy, talking as if everything that had happened was an integral, if at times annoying, part of the constitutional system of checks and balances which the Founders gave us. (Does it really make sense to say: “one of our checks and balances is that the third branch of government is above checks and balances?” Is the Pope Catholic?)

So the upshot is that, for the last six decades or so, America has been a de facto dictatorship-by-committee, within a few constraints. The Justices are limited by the rate at which cases can work their way through the legal system (they cannot, for instance, do a page-by-page revision of the tax code), and by the need to get five out of nine people to come to an agreement (which is why the Court very often issues a decision to the effect of ‘we don’t want to be in charge of this aspect of the law’). They are careful to avoid getting involved in foreign policy. And they are also limited by the faint possibility of getting impeached or having their jurisdiction altered if they do something that both parties in Congress think is really, really bad.

That is why, to give one example, they couldn’t reinstate slavery, even if they tried. But there isn’t much else that they couldn't do.

2.     Moderate Republicans

To a right-winger, my first answer to the question of “Who Has The Power?” isn’t all that surprising. But there are uncomfortable implications, because you can’t simultaneously admit that the Supreme Court holds the summum imperium in this country, and blame America’s problems on “Democrats.”

Republican appointees have been a majority on the Court since 1969, with the size of that majority fluctuating between five and eight (!) seats. Also, the one time that the Court decided a presidential election, the Republican won. And yet, during all these decades, the Court has, for the most part, kept on advancing liberal causes.

For a politically astute conservative, the following names are synonymous with “traitor.” Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, David Souter, John Roberts. But to whom are they traitors? Not to Republicans like Nelson Rockefeller and Bob Packwood and John Sununu, who were instrumental in getting them onto the Court.

The reason that you can rarely get an outspoken originalist like Robert Bork through the Senate is that there are a lot more Republicans who favor liberal jurisprudence than there are Democrats who favor conservative jurisprudence.

The conflicts over judicial philosophy are just one manifestation of the asymmetry between Left and Right in American politics. You can see the same thing across the whole gamut of legislative issues which work their way through Congress. It goes like this:

The Left is for rapid leftward change. The Right is sometimes for slow rightward change, but more often for just preserving the status quo. Inevitably, both Left and Right develop moderate factions. And the moderates are for... slow leftward change. The country does not go left as fast as the Left’s leadership would like (which is why the bulk of the Left still feels powerless) but it definitely goes left.

At least, it goes left when the corporate world doesn’t say ‘No.’ Moderates get along very well with monied interest groups.

(Also, moderate Republicans tend to be pro-war. Perhaps you recall the Republican Presidential Primary four years ago when Donald Trump, the only candidate to say the Iraq War was a mistake, was painted by the media as a dangerous extremist, while Marco Rubio, who was running in the moderate lane, said that the best solution to the conflict in Syria was to declare a “No-Fly Zone” and then shoot down Russian planes that violated it? And I shouldn't even need to mention the “moderate” policies of John McCain and Lindsey Graham!)

Anyhow, American politics makes a lot more sense once you realize that moderate Republicans are in charge, and that the difference between liberal causes that fail (such as environmentalism or higher taxes for the rich) and those that succeed (such as LGBT equality and de facto amnesty for illegal aliens) is usually determined by which ones moderate Republicans can support while remaining true to their corporate sponsors.

In a two-party system such as ours, where one party’s job is to agitate for radical changes, and the other party’s job is to offer inept and half-hearted resistance, the gatekeepers are the moderate members of the conservative party. Leftist reforms, from the creation of a bunch of new regulatory agencies under Nixon to the No Child Left Behind Act to same-sex marriage, go from idea to reality the moment that moderate Republicans get behind them.

3.     No One

Imagine, for a moment, that you’re a peasant living in Roman Syria in the third century AD. Life is hard for anyone who has to earn a meager living by tilling the soil in a Roman province, but your life is even harder than most, since your landlord routinely takes a bigger share of your grain than the law entitles him to, and the local tax collector does the same thing with your money.

You complain to the municipal judges, but they don’t do anything – after all, they’re on good terms with the landlord and the tax collector, and one doesn’t just walk away from a friendship that carries financial benefits.

You know that the Emperor is ultimately in charge, so it’s hard to think of the landlord and the tax collector and the judges as tyrants – after all, they have to obey the Emperor’s laws just like you do, and if they try to take his place, they’ll probably end up with their heads on a bunch of pikes. But the Emperor is off fighting barbarians on the other side of the Danube, and what’s going on here in Syria is the last thing on his mind – or at least, it will be, until the Queen of Palmyra begins invading and pillaging the whole eastern half of the Empire.

So it isn’t fully accurate to say that the Emperor is in charge, when he actually plays no role in most of the decision-making that affects how his subjects live. But the landlord and the tax collector and the municipal judges aren’t in charge, either; after all, the ability to plunder one corner of a complex system is not the same thing as control over the entire system.

Present-day America has a lot in common with third century Rome. The American Empire, like the Roman Empire before it, is going through a time without strong leaders – just a lot of people who have the ability to plunder one corner of the system, and who use that ability ruthlessly.

We saw that during the financial crisis of 2008, when so many bankers kept on granting themselves multi-million-dollar bonuses even when their banks were insolvent and their bills were being paid by the government.

A lot of people on both the Right and the Left looked at what was going on and concluded that America must be controlled by a conspiracy of bankers. But the power that the banks have doesn’t rise to the level of controlling much of anything.

Rather, the revolving door between banks like Goldman Sachs, and the federal agencies that are supposed to regulate banks like Goldman Sachs, is useful to the banks mainly because it gives them enough veto power to make sure that the agencies don’t do anything that’s against the interests of the banks. But it does not give them power to proactively steer government policy in any particular direction.

Nearly all regulatory agencies function in a similar way. They protect the largest players in the industries they regulate from accountability, and they also protect them from competition, by means of an ever-expanding regulatory burden that crushes smaller players. As one might expect, the overall effect on the economy is bad.

To give one example out of thousands, in 2013 a handful of FAA bureaucrats drove Great Lakes Airlines and several other small airlines out of business by unilaterally raising the flight-hours needed to be a co-pilot from 250 to 1500. As for the big players, like American, United, and Delta? If I recall right, they’re still here.

This didn’t happen because anybody convinced a room full of people that it was a good idea to put Great Lakes Airlines out of business. It happened because there are people whose job is to constantly expand the regulatory code, and other people whose job is to make sure that the burden of that constantly expanding regulatory code falls on someone other than the corporation they work for.

You can see the same pattern almost anywhere you look. Why has the Defence Department poured so much money down the rat-hole of the F-35, even though it has taken decades to develop, its cost overruns are legion, and nearly every unbiased analyst knows that the F-35 is inferior to the fighters from the 1970s and 1980s that it is supposed to replace?

The answer is that it is in Lockheed’s interest for the program to move ahead, and Lockheed has its fingers in enough bureaucracies to keep things from getting done that aren’t in Lockheed’s interests.

No single person, or small group of likeminded people, is dictating this. Nobody who chairs a congressional committee or occupies a big office in the Pentagon is unpatriotic enough to consciously act against the core military interests of the United States. At the same time, these people are institution men by temperament, and it isn’t in their nature to rise up and wrest control of the Defence Department’s policies away from the Department’s vendors.

Meanwhile, America’s university system is busily charging exorbitant tuition for mostly-useless degrees, and will keep doing so as long as the Department of Education is willing to shell out huge amounts of money on student loans with little repayment potential. This is a policy that won’t be reversed in the near future, because nobody is powerful enough to take on the monied interests that benefit from it.

At this point, giving more examples should be unnecessary. Suffice it to say that America’s experiment with government by driverless car won’t go on forever. Rome’s period of decadence and misrule between AD 180 and 284 ended beneath the firm hand of the cruel but competent Emperor Diocletian. A second period of misrule began around the year 395, and ended with the dissolution of the western half of the empire in 476. (It’s worth noting that each of these periods, as well as the interlude of relative prosperity, lasted longer than a typical human lifetime. I have written before about how empires don’t collapse quickly.)

What will put an end to our present period of weak leadership? Nobody knows yet. Either things will keep going in the same direction until the dissolution of the Empire, or else a strong leader will reconcentrate power and start governing in a way that’s more conducive to military success and long-term stability.

 One way or another, things will change. But how soon that change will come, and what form it will take, are not questions that can be answered with any degree of certainty.

Saturday, October 10, 2020

The Truth About Unwritten Constitutions

One of the basic maxims of American political thought is that having a written constitution is necessary to protect a nation from tyranny.

My own view of the utility of written constitutions is more nuanced. In the real world, there are times when written constitutions are necessary, but there are also times when they are useless, or worse than useless.

Imagine, for a moment, that you are brought back in time to late 1945, and given a choice of living in one of two European countries. One of these countries is a federal republic with a written constitution which guarantees freedom of speech, the press, and religion, the separation of powers, and all the other rights and liberties which citizens of a modern liberal democracy generally expect to have. The other country is a monarchy with no written constitution.

Most Americans wouldn’t know any better than to say that they would prefer to live in the federal constitutional republic. Only a minority would recognize that the first country I described is the Soviet Union, and the second one is Great Britain.

Yes, you read that right. The Soviet Union had a written constitution (actually, it had several written constitutions; new ones were adopted in 1924, 1936, and 1977.) Its constitutions protected freedom of speech, freedom of the press, and freedom of religion. They enforced the separation of powers, and limited the role of the head of state. (The head of state at the time was a man named Mikhail Kalinin, who held that role from the USSR’s creation in 1922 until his death in 1946. Most westerners have never heard of him.)

Also, none of that had much practical impact on the way that the Soviet Union was governed. That was because, under the soviet system, while the constitution might say a lot of nice-sounding things, those things meant whatever the Chairman of the Communist Party wanted them to mean.

If the Chairman interpreted “freedom of speech” in a way that still allowed for the summary execution of dissidents, then the summary execution of dissidents was constitutional. The Chairman’s interpretation was the only interpretation that mattered.

So while the USSR had a written constitution, it also had an unwritten constitution. And during that particular period of soviet history, the unwritten constitution could be summed up in a single sentence: Josef Stalin must be obeyed.

Great Britain also had, and still has, an unwritten constitution. Unlike the USSR, Britain never had a written constitution to go along with its unwritten one.

Also, the unwritten British constitution differed from the written soviet constitution in that it provided meaningful protection to the liberties of the people. How was it able to do that, despite being unwritten? Because the British constitution consisted of a set of commonly accepted norms of how a government should function, and deviating from those norms could cause civil unrest, mutiny in the armed forces, or the removal from office of the party responsible, even if that party was the King. (Have you ever wondered why the Stuarts no longer sit on the British throne?)

What am I getting at here? Well, written constitutions are simply not as important as many Americans think. What matters most, in the end, is not whether the people’s rights are written down in a single place, but whether or not the government can violate them with impunity.

As I’ve said before, a constitution that means whatever the people in power want it to mean is the functional equivalent of no constitution at all.

Which is not the same as having an unwritten constitution.

For example, the unwritten British constitution has done a fairly good job of protecting freedom of speech, within reasonable limits. The United States, with its written constitution, has also protected free speech, within reasonable limits. (Remember that Justice Holmes’ famous remark about there being no right to shout “Fire!” in a crowded theatre dates from 1919, long before the present age of judicial activism, and the First Amendment has coexisted with libel law since 1791).

Both countries, then, accept limits on free speech; the difference lies only in who gets to decide what is an appropriate limit. In Britain, Parliament does the deciding; in the United States, it’s the Supreme Court.

Now, I happen to believe that, at least in the case of free speech, there are some benefits to doing things the American way. The fact that a law limiting speech has to first be passed by a legislature, and then upheld in court, provides a layer of double security that the British don’t have. Still, the difference isn’t as big as it may seem.

Even though most written constitutions are not mere formalities like the Stalin Constitution, their meaning is always heavily filtered through unwritten assumptions about how the government should work. Or in other words, even a country like the United States will still have a constitution which is, in large part, unwritten.

It has been this way from the beginning. While the constitution of 1787 is fairly specific about things for which tradition could provide no guide – for instance, that the President should serve a four year term – other things, just as important, are mentioned without ever being defined. For example, all that the constitution has to say about Habeas Corpus is that it is not to be suspended except in times of rebellion or invasion.

            Now, for another example of just how much faith in commonly-held, unwritten rules of good government went into the US constitution, take a look at the clause in Article IV which says: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

            Is there any specific listing of these privileges and immunities? No; that is left to tradition and custom. The people who wrote the constitution were less concerned about listing privileges and immunities – something in which they had the whole body of the English Common Law to look back on – than they were about making sure that each state allowed the inhabitants of other states to enjoy the same rights as its own inhabitants.

            Bushrod Washington, a nephew of George Washington who sat on the Supreme Court from 1798 to 1829, once wrote an opinion in which he talked for a while about the Privileges and Immunities Clause. Here is some of what he had to say:

“What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state….”

Wow! So here we have a US Supreme Court justice listing scads of unwritten constitutional rights, long before the invention of substantive due process, or emanations and penumbras, or Footnote 4, or any of the other mainstays of twentieth century jurisprudence. And it wasn’t even controversial, because Bushrod Washington didn’t use his authority as a Justice to push through new policies without the consent of the elected legislature; he just defended rights that were clearly based in the English Common Law.

(The actual dispute here, in case you were wondering, was over whether or not New Jersey had the right to prohibit non-residents from collecting oysters and clams on its beaches; Justice Washington ruled that it did.)

One might wonder how many times the English Common Law, important as it is to American jurisprudence, is mentioned in the original text of the constitution? The answer is zero. Everybody knew that America was using, and would keep using, a Common Law system, so there was no need to write this down and vote on it.

Now, did the fact that the American constitution relied so heavily on unwritten rights mean that judges could interpret these rights however they wanted? No.

Suppose, for example, that a circuit judge has arrived in some frontier settlement in the Appalachian Mountains in 1798, where he announces that, in his court, a jury will henceforth consist of five men, empowered to convict or acquit the defendant by a simple majority vote. He explains that the constitution mentions juries without giving any details as to how they should work, and that, as a federal judge, he can rule on constitutional questions as he pleases.

Everybody knows that a judge who did this would have been run out of town on a rail, because by longstanding tradition, a jury had to consist of twelve men, and it had to give its verdict unanimously.

Americans living in 1798 still had the courage to fight for their liberties. Their willingness to resist abuses of power put a practical limit on what the government could do – and it protected both written and unwritten rights.

In the year 2020, America is in a very different situation. Our written constitution is a largely meaningless formality, with most of its provisions having been interpreted out of existence. And the unwritten constitution that we have adopted in its place is rooted in progressive ideology rather than the English Common Law.

Is it a problem that, in our system, judges have the authority to rule on constitutional questions? No, not really. The judiciary had that power under George Washington; the main difference is just that, nowadays, the checks and balances are gone. The impeachment of judges on a charge of “unlawful rulings” hasn’t been seriously discussed since the Jefferson Administration; the Exceptions Clause hasn’t been used since Reconstruction; and court packing, apart from some recent talk from Democrats, hasn’t been a live issue since the New Deal.

To get a better grasp of the idea that the present state of judicial supremacy arose over time, and wasn’t built into the system from the beginning, just think about the following alternate-history scenario.

Imagine that, at some point in America’s history, each house of Congress has started using its constitutional power to be “the Judge of the Elections, Returns and Qualifications of its own Members” to disqualify new Senators and Representatives whenever the outgoing Senators and Representatives believe that their replacements won office by lying to the electorate. Then, to the surprise of nobody, this gimmick is used to ensure that the same party always maintains control of Congress, no matter what the citizens do in the voting booth.

You could argue that the founders didn’t intend for it to work this way. “What they really meant,” you could say, “was that Congress needed to have the power to resolve good-faith disputes about who had the most votes.” On the other hand, the power of judging elections belongs to Congress, and if you’re not a member of Congress, then your opinion about how that power should be used doesn’t really matter.

Everyone knows that if this happened, the United States would no longer be a constitutional republic in any meaningful sense of the word.

As it turns out, a very similar thing has happened with the part of the constitution that says: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…” – i.e. the clause that provided the seed for the Supreme Court, by means of creative interpretations of various parts of the constitution, to give itself unlimited legislative authority.

That the Court was able to do this isn’t an indictment of the American founders; it’s just one more piece of evidence that the ability of written constitutions to restrain the abuse of power is not unlimited. (If it was unlimited, then Stalin would not have been willing to put up with a written constitution.)

The plain fact is that a man, or group of men, may hold legitimate power under the constitution, and still abuse that power so badly that, unless resistance is in the offing, the country no longer has a constitution in any real sense.

The truth about unwritten constitutions is that they can protect a nation's rights just about as well as written constitutions. And the truth about written constitutions is that, in the hands of sufficiently ambitious and unprincipled men, they can be perverted just as easily as unwritten constitutions.

In the end, the question of which, if any, of your rights are enshrined in a written document is not the most important question. Rather, in the long run, the only rights that matter are the rights which the government can’t violate without risking an insurrection. This is why, when the English barons made King John grant the Magna Carta in 1215, he had to include a clause authorizing them to renew their war against him if he violated the rights he had just granted.

It is also why the American founders were willing to wage a War of Independence against Britain in order to protect traditional rights that weren’t part of any written constitution, and which Britain’s highest legal authorities – the Houses of Parliament – said did not exist.

And it was the absence of serious resistance when the First, Second, Fourth, Sixth, and Tenth Amendments were gutted and stuffed by the mid-twentieth-century judiciary and an alphabet soup of regulatory agencies that has given America its present form of government: a post-constitutional oligarchy.