On New Forms of Government

Over at VC, Elise and I began a discussion late in the comments to a post that probably deserves to be considered independently.

Elise asked:
What does abandoning ship mean here? Secession for some States?
I replied:
I think that's the right solution, really. Peaceful and constitutional dissolution of the union, followed by erecting new unions of like-minded states. The Federal government is dragging everyone down.

We might also give some thought to how to avoid the problem in the future. In ancient Athens they believed that any electoral system was going to be impossibly corrupt: even before the innovation of using public funds to buy votes (or whole constituencies), the rich could use private funds to buy them. Their belief was that no system based on elections was sustainable because of the bedrock corruption native to such systems.

They still wanted to distribute power among the many, though, and not to have an elite or a tyrant. So they did something very similar to what William F. Buckley suggested with his 'first 300 people in the phone book' quip: they chose citizens to fill political offices by lot. You held the office for as long as you held it, and then you were replaced by a new lot.

You'd want to think about how to build the pool so that the lot was taken only among people who were qualified. Having established some basic qualifications for given offices, though, everyone who met those qualifications would go into the pool and the chosen would hold the office for a term.

It might make sense to have a bifurcated system, with elections for direct representatives responsible to their constituents for some functions, but lotteries for other offices. In general I would think you'd want representatives empowered specifically to limit government's power over citizens, and lot-chosen officers to exercise power (rather than restrain it).
Elise responded:
Having established some basic qualifications for given offices, though, everyone who met those qualifications would go into the pool and the chosen would hold the office for a term.

Sounds kind of like jury duty - an interesting idea.

In general I would think you'd want representatives empowered specifically to limit government's power over citizens, and lot-chosen officers to exercise power (rather than restrain it).

Interesting again. Perhaps a variation on the tricameral idea: one house to propose laws; one to pass the proposals (or not); only that exists solely to repeal laws?
To which I would respond:

That might also work, and really we should be talking about different ways of thinking about it. So, I'd like to propose a discussion of the subject. Consider it theoretical, if you like. There's no need to commit to doing it in actuality, but let's talk about how it might be done if we were to do it.

What I was thinking of was a Parliamentary form of government with a Civil Service, like the British have: but whereas the analog to the House of Commons and the heads of the departments of the Civil Service would be selected by lot (to avoid the corruption the Athenians saw, and to keep the Civil Service from overwhelming the elected branches as it has often done in Britain), the analog to the House of Lords would be elected.

This elected branch would be empowered both to repeal laws and Civil Service regulations it decided were out of line with the constitutional order, or the rights of citizens, but also to generally oversee in an adversarial way all the exercise of government. It would not be empowered to make laws, or to enact new regulations, or to exercise force of any kind against citizens not acting as a part of the government. It would serve a formally adversarial role to the government, with each member of this house responsible to their constituents and to a constitutional oath.

Against government actors, though, it would need the full array of powers: subpoena, arrest, and an independent power to punish according to whatever forms were usual (i.e., not 'cruel and unusual' punishments, but exactly the same order of punishments that would normally be applied against citizens).


Anonymous said...

Ok, I like the idea of the appointing the civil service heads by lot, but how do you deal with the bureaucracy? By that I mean, the head will be relatively clueless when they step into their job, but have to have some under-tier of civil employee who stays on between "lot cycles" to keep continuity. You end up with something similar to today, where you may fire the head of an agency, but the rest of the organization keeps chugging along.

My own answer to that question would be two fold - #1 keep the laws being enforced relatively simple that you would not have to have such expertise to enforce it. #2 would be this adversarial elected branch to hold some of the civil employees accountable if they had some lame boofus department head not overseeing them well.

Elise said...

(I posted a quick response to this over at VC then saw this post here so I'm cross-posting my comment.)

Grim - I'm somewhat uncomfortable with a government that doesn't have an Executive branch. Perhaps just what I'm used to - I'll have to think about that some (after I finish my Italian homework and make it through class this afternoon :+).

Would you still have something analogous to the Supreme Court? If so, would the elected branch be able to overturn the Court's decisions? How about term limits for the elected representatives (please say "yes")?

E Hines said...

Like battleblue1 alluded--there needs to be a means of getting rid of/firing entrenched civil "servants." Patronage isn't the answer, but the present fire-proof unionized public employee situation is just as untenable. And the culling shouldn't be limited to "for cause;" public employment should be at-will.

I suggest a first contract for public employees of some short number of years that does not coincide with the election or lottery cycle, at the end of which the elected reps and the lot-selected reps must each agree to renew the individual's contract. The renewed period would be for a somewhat longer term, also set to not coincide with election/lottery cycles, also needing to be positively renewed.

Also, the legislature would need to rescind/not have delegation of rule-writing for implementing laws to that bureaucracy.

As for term limits, I don't like those. At all. However, the Articles of Confederation had what seems to a useful solution: a limit on the number of consecutive terms that could be served, in the Articles' case no more than three terms in any six.

Absolutely we'd need a single Executive; it's not possible to deal with emergencies by committee.

And one of the biggest, and most beneficial, inventions of our Founders was an independent judiciary with the authority to toss laws it found to be unconstitutional.

Eric Hines

Grim said...

Good opening, everyone.

BB1: Perhaps a partial answer is to have overlapping cycles instead of one cycle. The military did something like this in Iraq by rotating regular and reserve units at different rates. So, an incoming infantry brigade would have a wealth of reservists to get them up to speed on the area; and when they left, the new reservists would have the regulars.

Elise: I suppose term limits are OK, although you want them to have an incentive to work for their constituents and not themselves -- and staying in a position of prestige and power may be one. Still, term limits have other advantages.

As for an executive, I'm not sure it bothers me. To some degree the heads of the bureaucracies end up being chief executives each of their units. The Prime Minister is technically chief executive -- and far easier to replace than a bad President, thanks to votes of no confidence. (We'd want to preserve that feature, I'd think: perhaps it could trigger a new lot, or just a new lot for PM, or perhaps we could let the lot-appointed ministers sort out their PM business internally?)

In one way that elevates the legislature over the executive, which the Founders sort-of wanted to do and sort-of did not. (Jefferson talks about it this way at times, for example.) But in another way it doesn't, because in our current system the executive branch is performing most of the legislative functions. For example, HHS is actually writing (and rewriting) the Obamacare law without reference to Congress -- delaying mandates and so forth.

So maybe it makes sense to restore legislative primacy, since the bureaucracy performs legislative functions.

Mr. Hines: In general I agree, with the idea that the adversarial branch would have those powers you mention re: civil servants. See my thoughts about term limits and a Prime Minister instead of a separate chief executive above.

E Hines said...

In the end, I frankly don't have a problem with our current structure, other than the adjustment I've described to term "limits," breaking the fire-proof nature of the current civil service, and taking back from the Executive rule-writing authority.

I also favor the Executive being the equal of the Legislative; Rousseau had that wrong. The office can't be an effective manager of emergencies if it's subordinate to the Legislative.

We're seeing today a failure of execution, not of the system, and that's all on the Sovereign people, and through them--us--on the oversight of each other that the three branches are supposed to be exercising, each of the others.

And that brings me, as I think about it, to a dislike for lotteries over elections. An elected representative is bound to his constituents, at least nominally, if he wants to get reelected. A lottery winner is beholden to no one but himself--and the We the People will have lost our Sovereignty.

Eric Hines

Grim said...

So the Athenian answer to that would be, Mr. Hines, that the Sovereign People aren't going to fix the problem precisely because the elections make their government representatives 'answer to them.' That's just why we get this kind of corruption, where people promise to provide unearned-but-paid-for benefits in return for votes. Human nature is such that free goods for votes is a bargain that most people will make most of the time.

We might better ask why our system worked for as long as it did, because the Athenian thought is that any such system will inevitably corrupt as ours has.

The Founders planned for a government that did not have an income tax. Their idea about the kind of harm that could be done was tied to the kind of money that was going to be available to the small, limited central government they imagined.

They also didn't issue the world's reserve currency. That's allowed our government to engage in so-far-unlimited borrowing, which unties spending even from the vastly-increased taxation powers.

They had a franchise that was constructed so as to buy-in only those who had reasons to be ideologically devoted to anti-tax schemes: propertied landowners. This was the one class most likely to abhor the idea of confiscatory taxation.

You can run on through the list, but the point is that all the safeguards are gone. Some of them went on purpose and some by accident, but we're right where Athens said we would be. The only way the Sovereign People can be trusted with an elective system is if they should suddenly -- against the evidence of all human history -- become a better and more moral people, from top to bottom, than has ever existed.

E Hines said...

Any system we devise is going to get into trouble at some time precisely because it's run by people, and we are an imperfect lot. What we have has worked as well as it has because of the checks and balances that were built in for the purpose of slowing down the slide. But the slide is going to happen in any human institution.

The Founders intended to fund the government with import duties, which is harmful to the people whom the government is intended to support by directly driving up the prices those people must pay for anything. An income tax is a much better device for funding the government--its impact on prices is much more tenuous, and by giving the people direct skin in the game, gives them--us--a direct interest in controlling how those funds will be used.

The Founders didn't issue the world's reserve currency because they were happy to freeload of the existing ones, our own currency being worthless. Even during the Revolutionary War, most of the currency in circulation was somebody else's. Having the world's reserve currency has been, for us, an enormous economic, political, and military boon.

The problems currently flowing from these, though, are not system failures, except at the highest level of generality--they're our failures from not doing our own duty in our social compact and keeping closer watch on our hireling government.

In the end, the great weakness of the democratic form, including republican democracies, is that the people will vote their bellies. But even at that, it's an enormous improvement over a dictator voting his belly at our table.

Which brings me to the Athenian answer: there are no Betters to beg to rule us. The only ones available for the task, angels being in short supply, are us. That doesn't give me much concern, though. It just means that, every so often, we're going to have to reset the system. Nothing wrong with that; once in a while a generation is going to need something to do with itself. And nearly every time we reset, we do better. It's not monotonic progress, but it's there, over the long run.

And I frankly don't care very much what the Athenian--or Roman, or Carolingian, or...--answers are to the question of proper governance. They aren't us, and their times are not ours. The Athenians were right that a popular democracy is a disaster for populations greater than one, when the population is a mix of wolves and sheep--as any human population is. But that's about as far as it goes. The Roman system, all the other systems, are fatally flawed by their false premise that some people are better than others and so some people in some sense should be the bosses and the rest of us should just shut up and be grateful of the protection--which, incidentally, was Wilson's justification for segregation.

Eric Hines

Elise said...

It's been decades since I read Atlas Shrugged but IIRC there is a scene at the end of the book that shows the judge who had Gone Galt revising the Constitution to eliminate the weaknesses that made the fall of the country possible. I've always wondered what changes he made; as far as I remember, Ayn Rand was silent about exactly what those were.

I think the real key is limiting the scope of government. The more government does, the less any citizen can determine what is and is not the correct course. Not because people are dumb but because there are only so many hours in the day. Given a big enough job (and enough money and power sloshing around), the part of the legislature chosen by lot could be corrupted just as the part chosen by vote could be.

I agree that the problem with elective systems is that people are human. But the Constitution was designed to take that into account; to, as David Mamet says, assume:

that the chief executive will work to be king, the Parliament will scheme to sell off the silverware, and the judiciary will consider itself Olympian and do everything it can to much improve (destroy) the work of the other two branches.

Instead of throwing the Constitution out, can we make it work better?

If the income tax is a needed safeguard that's gone, let's either do away with it (unlikely in this country, possible in a seceded one) or put a cap on it. (The amendment establishing the income tax was supposed to limit it to a maximum of 10%. That limit was removed for fear it would encourage the government to tax right up to it.)

If borrowing is a problem, let's disallow borrowing, forcing the Federal government to run a balanced budget. Again, probably impossible in this country, possible in a seceded one.

I can't go along with the idea of restricting the vote to propertied landowners (despite being one myself) but if we can outlaw confiscatory taxation, we can achieve the result Grim ties to this restriction.

And so on. The problem, of course, is that no matter how many rules we make, if people are determined to get the government to do certain things, they'll find a way. We're seeing that with the willingness of most voters to ignore bad actions as long as they like the results. Those voters (the majority) are getting the government they want. The problem is that the rest of us have to leave it.

E Hines said...

Those voters (the majority) are getting the government they want.

Majority of what? Voter turnout in 2012 was 57.2% of eligible voters (without going into the relationship between the number of "eligible voters" and the size of the US adult citizen population (counting, or not counting, the dead [/snark])), of which Obama got 53%.

Obama got 30% of the "eligible voters." There's plenty of room there to generate a different majority; Republicans and Conservatives just need to get get more active within their constituencies and within their Democrat constituencies--and to correct their communications failures.

It's more that the rest of us are getting the government we deserve from our sloth.

Secession isn't a necessity, yet. As you've noted, we have an execution problem, not a system problem.

Eric Hines

Anonymous said...

Elsie, in addition to a property or service qualification, I'd suggest a stability and employment qualification. In order to vote, you have to show proof of two years gainful employment and twelve months residence at the same address, unless you have documents from your employer or the municipality explaining why you have relocated more often (say, if your house burned down, or ended up in Oz). That way, those of us who can't serve in the military (medical) or who do not earn enough income to own a home, but who are steady and responsible citizens, can still participate in elections. I'd also add that if you are on certain types of government aid for more than,oh, a year, you lose your franchise until you show proof of re-qualification.

I'd also suggest that if a person wants to serve in office or to get a job in the government, they have to have worked in the private sector for at least five years, or to have served in the military, and not as a lawyer. At least, not until we get 90% of the lawyers currently getting checks from the .gov off the payroll. (Nothing personal against the attorneys in the Hall, but I suspect removing all the esquires from the various executive agencies and the legislative branch would do wonders for reducing both the cost and the foolishness of the federal government.)


Grim said...

As you've noted, we have an execution problem, not a system problem.

That doesn't seem sound. All the solutions being proposed are systemic: many of them even include the preface, 'We couldn't do this in our country, but in a seceded one perhaps...'

Even answers about reforming the franchise are systemic, because they mean changing the system to remove the influence of those most likely to game it.

The only thing that would serve as an execution answer would be some form of: "If we can elect better people, they can fix it." This is just what I don't believe to be true, for essentially the Athenian reason: I don't think you can elect them, because the system has slid too far toward the corruption the Athenians identified.

And I frankly don't care very much what the Athenian--or Roman, or Carolingian, or...--answers are to the question of proper governance. They aren't us, and their times are not ours.

The Founders, whom you admire, cared a lot about those questions. It's worth looking at their sources as well as their own solutions -- especially as we try to sort out just where their solutions failed to hold up the weight put on them. It's good to know not just what Jefferson thought, but why he thought it.

For example, everyone knows Jefferson favored an American republic built on Yeoman farmers. Some -- you, I'm sure -- have read his arguments for it. But it's also worth knowing that he was inspired in part by Aristotle's Politics VI, part four, which identifies the special benefits of agricultural or pastoral democracies: they don't covet others' property, and tend to want only to attend to their private business and be left alone with their crops and herds. They choose officers wisely (and can be trusted, Aristotle thought, with elections) because they never want the offices themselves -- they only want to return to their own land and their own herds. So they choose the best people for the job, rather than seeking it out of a desire for glory or honor or profit.

Now is that right? Well, one test might be whether rural areas have better sensibilities about 'the Athenian question' than urban ones.

Their situation wasn't ours, maybe, but human nature hasn't changed. These questions are in a way eternal. It is worth taking time to hear what the wise of their age had to say.

Elise said...

All the solutions being proposed are systemic: many of them even include the preface, 'We couldn't do this in our country, but in a seceded one perhaps...'

Where execution solutions slide into systemic changes is in the eye of the beholder. At this point in time, disallowing or capping income tax and disallowing borrowing seem to me to be systemic solutions as much as execution ones.

I don't think we can design a system that can't be circumvented by an unengaged citizenry but I do think we can usefully discuss what kind of system can best resist such circumvention. The problem I have in thinking about that is that I tend to want to get rid of the parts of the current system that are doing stuff I don't like (e.g. the Supreme Court).

I also seem to be in a gradualist mood (e.g., pushing for changes to ObamaCare - and please don't yell at me, I hate it, I just think we need to take whatever we can get to leave us room to get rid of it later) which clashes with my conviction that splitting the country is the only viable solution.

And I have no idea where I'm going with this, except to say I like the idea of having some responsive body make decisions on Constitutionality. I haven't read Mark Levin's book (and he's not my favorite pundit) but one of his suggestions is to allow a super-majority legislative override of Supreme Court decisions.

At the same time, I can see the dangers in that. The Founders feared a majority running rough-shod over Constitutional protections. Requiring a super majority addresses that to some extent but ...

Grim said...

I don't think there's anything wrong with holding both that:

A) The real solution is to dissolve the union,

and yet,

B) We should try to reform from where we are right now, and get set to elect better candidates if we can.

There's no reason you shouldn't try B while you prepare to A, or until A comes around, or even in the hope that you won't have to A after all.

One reason I wanted to hold a theoretical discussion is that many people haven't come around to proposition A, and might in fact be deeply opposed to it. But we can still talk about what a good solution would look like. If we are wrong about A, though I don't think we are, then 'the right people' might at least get some good ideas for reforms once they get elected.

E Hines said...

All the solutions being proposed are systemic.... Even answers about reforming the franchise are systemic....

If you want to count tweaks aimed at redirection back to course systemic solutions, OK.

And I frankly don't care very much what the Athenian....
The Founders, whom you admire, cared a lot about those questions.

Yes, and having studied the ancients--who are worth listening, for all my polemic above-- and having also listened to more contemporary thinkers--de Vattel, Brutus (Junius), Locke, Rousseau, and more--our Founders improved on them all with their own developments, and they moved on. Thus, we have a tripartite government consisting of a legislature, an executive, and a judiciary which are both coequal and coeval with each other; and a legislature subdivided so as to have direct representation of the people and, equally so, representation of the people's subdivisions qua subdivisions of the republic in the central government.

And a deliberate design that had the central government, even after the lessons of the Articles of Confederation, small and limited in power and authority. And a means of peacefully altering both our government and the terms of our social compact.

Having learned the ancients' lessons of popular democracy and benevolent dictatorship, and the more contemporary lessons of republicanism and benevolent dictatorship, they invented a new republicanism.

All of these measures were designed to deal with human nature, which doesn't change much or rapidly over time.

In the end, I also don't agree that it's too late or that the system has slid too far. That's what wave elections are for, and there's no reason there can't be more of them in quick succession. One of the reasons for the just concluded shutdown is that the men and women of the last wave election and many of those added in the immediately following election stood up and did what their constituents instructed them to do. Which demonstrates the viability of the overall process, if we Conservatives only follow through over the next several elections. Obama, after all was elected by only 30% of eligible voters. That's a pretty puny performance, if the eligibles can be gotten to turn out.

Eric Hines

Tom said...

The US has had a couple of major course corrections, and I think it's time for another. These seem to come with a series of constitutional amendments and new government policies, and that seems a good place to start.

The big question is, what course do we want to chart? And then, what amendments would push us that way? And then, how can we convince most American voters to go along?

That last bit will be the hardest, I think.

Tom said...

As for Grim's proposal, the idea of selecting representatives by lot is an attractive one. I also like the idea of a 'House of Antagonists' (or something like that) that keeps the government in line. I would give it its own police force. Also, this could be a replacement for the Supreme Court, if that's necessary.

If we're electing by lot, I would make a rule that if one is currently serving, one's name wouldn't be in the next lottery, so it would de facto mean you couldn't serve two consecutive terms, which I think is good enough.

I wouldn't restrict voting by property, but maybe to those who pay more taxes than they receive in benefits, or something like that. No representation without taxation, if you will.

I don't really see any advantage in getting rid of the executive branch. All of the parliamentary governments I'm aware of are more screwed up than ours, so I don't really see the value in looking to them for examples of what to do. (Now, if we need examples of what NOT to do ...)

E Hines said...

I'm down with a reversion to small, limited government as the course to chart. As to Amendments, here are two I've proposed in other writing:

No person shall be capable of being a member of either House of the Congress for more than two terms in any period of four terms. In the event a Congressman is elected or appointed to the other House of Congress than that in which he currently serves, his term in the other House shall be his second term in the period of four.

Each of the intervening two terms, which must pass before capability to be a member of a House of Congress shall be restored, shall be as long as the term of the last House in which the Member shall have served.

During each of the intervening two terms before a person shall again become capable of being a member of Congress, that person cannot work for, or in, the Federal government in any capacity, whether for compensation or
pro bono, nor can that person work for any organization that does business with the government in any capacity, whether for compensation or pro bono. Any time spent doing such work shall not be counted a part of the intervening two terms.


All civil legislation enacted by the Congress of the United States and signed into law by the President shall expire five years after its enactment, unless the legislation itself shall specify a sooner expiration, unless:

In the fifth year, it shall be enacted and signed into law again under the provisions of Article I, Section 7. Such renewal shall be for an additional five years, unless the legislation itself, on renewal, shall specify a shorter period.

In the event a law shall fail to be renewed, neither it nor substantially similar legislation can be enacted before five years have passed from the date of expiration.

I also like, with a modification, Senator Rand Paul's (R, KY) proposed Amendment applying all laws to Congressmen, officers of the Executive, and Article III judges. His proposal neglects to require the staffs of these bodies and of these men to be under the law, also. His Amendment seems redundant, but sometimes it's useful to repeat the obvious, just in case it isn't.

Eric Hines

Tom said...

Eric, I like your idea for term limits. I might simplify it so that no one can serve more than two consecutive terms in office.

I'm not sure what I think about requiring expiration dates. I'll have to think about that.

I agree with your comment on Paul's amendment. I might go even further in two ways. First, apply it to all officials and employees of the federal government. Second, limit immunity to 'good faith.'

E Hines said...

My rationale for sunsetting all civil laws unless positively renewing them (with continued automatic sunset) consists primarily of two things:

Every law needs review periodically for its continued applicability; if it's not applicable, it ought to be rescinded.

Second, we have too many laws, now, too many ways in which the Feds can find us culpable for going about our daily business--so many that even a random decimation (or even "vigintiation") would be a net gain.

The burden of explicitly dealing with each of so many laws would lead to the automatic, from inattention, expiration of laws, and it would reduce the number of new laws being made--busy with those reviews.

limit immunity to 'good faith.'

I'm not sure what you mean here. What immunity? There's nothing in Paul's proposal that mentions that.

Eric Hines

Tom said...

On immunity, I know it doesn't now, but I would add it.

Really, though, before tossing that out there, I should read more about the topic.

E Hines said...

As I think about Paul's Amendment further, there's one more correction I should have caught sooner. I wouldn't limit ratification capability to the state legislatures. Article V of the Constitution also provides or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

I'd allow from within the proposed amendment both means, or strike from the proposal all reference to the means of ratification.

Eric Hines