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The Conscience of the Constitution

From National Affairs George Will writes The Limits of Majority Rule.  I strongly recommend you read the entire essay.

an excerpt:

Another reason many conservatives favor judicial deference and restraint is what can be called the conservative populist temptation. Conservatives are hardly immune to the temptation to pander — to preach that majorities are presumptively virtuous and that the things legislatures do are necessarily right because they reflect the will of the majority.

But the essential drama of democracy derives from the inherent tension between the natural rights of the individual and the constructed right of the community to make such laws as the majority deems necessary and proper. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution. Timothy Sandefur of the Goldwater Institute in Phoenix, in his book The Conscience of the Constitution, rightly emphasizes that the Declaration is not just chronologically prior to the Constitution, it is logically prior. Because it “sets the framework for reading” the Constitution, it is the Constitution’s “conscience”: By the terms with which the Declaration articulates the Constitution’s purpose — the purpose is to “secure” unalienable rights — the Declaration intimates the standards by which to distinguish the proper from the improper exercises of majority rule. “Freedom,” writes Sandefur, “is the starting point of politics; government’s powers are secondary and derivative, and therefore limited….Liberty is the goal at which democracy aims, not the other way around.”

The progressive project, now entering its second century, has been to reverse this by giving majority rule priority over liberty when the two conflict, as they inevitably and frequently do. This reflects the progressive belief that rights are the result of government; they are “spaces of privacy” that government “has chosen to carve out and protect.”

HKO

The Progressive Era marks the point in our history where democracy took precedence over liberty; where majority rights took precedence over individual rights. This was contrary to the intent of the Framers. This departure was the critical argument that converted the administrative state, meant to delivery efficiency in government unpolluted by politics, to the welfare state which grew to serve majoritarian impulses.

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More Than a Democracy

lincoln

From National Affairs George Will writes The Limits of Majority Rule.  It is an excellent summary of the history of the court as it has moved from judicial review to activism.  The success of Progressivism has hinged on the court shifting from upholding constitutional restraints on majority rule to an activist approach to uphold the majoritarianism- what many would call democracy- of Congress.

an excerpt:

The Missouri Compromise had been the work of Henry Clay, whom Lincoln, in the first of his seven 1858 debates with Senator Douglas, called “my beau-ideal of a statesman.” The Compromise somewhat defused the slavery issue and sectional animosity for three decades. It did so by forbidding slavery in the Louisiana Territory north of a line that included the Kansas and Nebraska territories. The Kansas-Nebraska Act, introduced by Senator Douglas, empowered the residents of those two territories to decide whether or not to permit slavery there.

The Act’s premise was that the distilled essence of the American project is democracy. And that the distilled essence of democracy is majority rule. And that, therefore, it was right that there should be popular sovereignty in the territories regarding the great matter of slavery. People should have the right to vote it up or vote it down.

Lincoln disagreed. He responded to the Act with a controlled, canny, patient, but implacable vehemence. So, the most morally luminous career in the history of American democracy took its bearings from the principle that there is more to America’s purpose, more to justice, than majorities having their way.

HKO

The Progressive Era can be summarized as the point in our history where democracy became more important than liberty.  The Founders and Framers clearly valued Liberty much more.

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Soft Tyranny

From Alexis de Tocqueville’s Democracy in America  (published in 1840):

Thus, after taking each individual by turns in its powerful hands and kneading him as it likes, the sovereign extends its arms over society as a whole; it covers its service with a network of small, complicated, painstaking, uniform rules through which the most original minds and the most vigorous souls cannot clear a way to surpass the crowd; it does not break wills, but it softens them, bends them, and directs them; it rarely forces one to act, but it constantly opposes itself to one’s acting; it does not destroy, it prevents things from being born; it does not tyrannize, it hinders, compromises, enervates, extinguishes, dazes, and finally reduces each nation to being nothing more than a herd of timid and industrious animals of which the government is the shepherd.

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Sharp Decline in Historical Consciousness

Krugman-744168

From The Transformation of Economics by Richard Vedder in The Wall Street Journal:

Economics as ideology in camouflage. Economists who achieve fame for genuine intellectual insights, like Paul Krugman, sometimes then morph into ideologues—predominantly although not exclusively on the left. The leftish domination of American academia is partly explained by economics. Federal student-loan programs, state appropriations, special tax preferences and federal research-overhead funds have underwritten academic prosperity, even at so-called private schools. The leftish agenda today is one of big government; academics are rent-seekers who generally don’t bite the hand that feeds them. The problem is even worse in other “social sciences.”

A disconnect between economic reality and public policy. Three examples come to mind. First, the Keynesian orthodoxy of fiscal stimulus of the 1950s and 1960s, with its Phillips curves and the like, was shown to be spectacularly wrongheaded. The U.S. experience of the 1970s and the Japanese “lost decade” of the 1990s are two demonstrations. Second, centrally planned authoritarian states with no private property or free markets (e.g., the former Soviet Union or North Korea) have been shown to be monumentally inefficient and not permanently sustainable. Third, nations with some free-enterprise capitalism but with growing redistributionist welfare states start stagnating economically—Europe beginning after 1970, the U.S. after 2000. Yet many economists (including at the Federal Reserve) still champion Keynesian policies and welfare-state expansions such as ObamaCare.

One reason living standards in the U.S. have stagnated: There were 12.7 million fewer Americans working in January than there would have been with the 2000 employment-population ratio. Disability insurance claims have roughly tripled in the past generation (despite greater inherent workplace safety because of the declining relative importance of manufacturing and mining); government-subsidized student loans and grants have lured younger Americans away from work; extended unemployment benefits prolonged unemployment; and food stamps now go to nearly 30 million more Americans than 15 years ago. The government has provided much more income that is only available if people do not work. So fewer do. As Charles Murray has noted, this phenomenon has contributed to declining social cohesion and arguably even largely explains Donald Trump’s electoral success.

Modern computer technology and increased econometric sophistication sometimes yield useful information about the way the world works economically. But those gains are at least partially offset by the sharp decline in historical consciousness—today’s scholars sometimes think they know it all, having an arrogance arising from historical ignorance, often wasting time and energy relearning lessons that those with a good sense of economic history already know. It is still satisfying, after half a century, to try to counter that ignorance, and to teach young people the logic of the price system, the importance of private property and other institutions for freedom and prosperity.

HKO

I would only add that the loss of any historical consciousness is not limited to economics.

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Doomed Forever to Be Free

forestmcdonald

“That the American Revolution and the American people –of all the world’s peoples the most materialistic and most vulgar and least disciplined- should have produced a governmental system adequate to check the very forces they unleashed; this was the miracle of the age, and of the succeeding age, and of all the ages to come. The French, the Russians, the Italians, the Germans, all the planet’s peoples in their turn, would become so unrestrained as to lose contact with sanity.  The Americans might have suffered a similar history, had they followed the lead of those who, in 1787 and 1788, spoke in the name of the people and of popular “rights.”  But there were giants of the earth in those days, and the spoke in the name of the nation, and the people followed them.  As a result, the Americans were, despite themselves, doomed forever to be free.”

The concluding paragraph of E Pluribus Unum- The Formation of the American Republic 1776-1790 by Forest McDonald.

HKO

McDonald’s story of the development and ratification of the constitution is an excellent companion to his Norvo Ordo Seclorum- The Intellectual Origins of the Constitution.

The development of the constitution while shepherded by some of the most intellectually capable men we have ever produced was an extremely fragile enterprise exposing sharp cultural differences and very pragmatic and economic concerns of the day.  It was radical in numerous ways, but two are worth noting.

The supremacy of the written law all branches of government were held accountable to was of more significance than the concept of democracy.  While we take this for granted today it was radical at the time.

Secondly, the concept of a republic that did not depend on virtue to hold it together was quite different from the view of republics at the time.  Perhaps the colonies’ experience with the failed Articles of Confederation led them to be quite skeptical of depending on mankind’s good nature.

The structure to divide government with checks and balances was meant to frustrate man’s illusions, ambitions and factions.  It was necessary for the early Progressives to delegitimize these two significant accomplishments in order to promote the greater power of the central government they sought.

Unlike Wilson,  FDR sought to sanction his progressive policies through a rationalization to carry out constitutional wishes rather than to delegitimize critical constitutional principles as historical relics unsuited for modern times.

While capitalism was a new concept and largely unfamiliar to the founders, their radical constitution which limited and decentralized power proved to be an exceptional mate for an economic system which also decentralized decision making authority.  While this marriage of personal liberty and economic freedom has produced  an extraordinary nation, it is worth remembering how fragile it was at its birth and why its core principles are as relevant today.