Having closed the last inquiry, then, let us examine other ways in which we might be able to repair -- or if need be, restore -- the proper function of the government. This essay looks at the structure of the original American government, and asks why that particular model was chosen. There was a problem at that moment in history that people were thinking about: the difficulty of defending a Republic that was extended over a large territory. Such a Republic would be necessary, because smaller republics would not be able to muster the resources to defend themselves in that era. But there were problems with the model:
Governments at a distance from the people they rule tend to be invisible; and when human beings are invisible, they tend rightly to suppose that they can get away with a lot. Moreover, large polities tend to face emergencies more often than small polities, and emergencies require from rulers vigor, alacrity, and resoluteness of the sort most easily provided by a man who can act alone. The challenge facing the American Framers was to devise a constitutional structure capable of producing a government fit for meeting emergencies but unlikely to become, as James Madison once delicately put it, “self-directed.”Federalism has another great advantage, which was important to the Founders: it allows for the diversity of opinion that was very important to making the early Republic as stable as it was. There was not a great deal of social trust between the early states, and the factions in those days were just as hostile to each other as our factions are becoming today. The Federalist structure intended to protect the states' rights to substantially different internal social contracts, so that the descendants of the Puritans in the north and the descendants of the Cavaliers in the South could each have their own laws and ways.
To meet this challenge, they turned to the second and third parts of Montesquieu’s Spirit of Laws – where he sketched out two different ways in which a republic can overcome this limitation on its magnitude. It was, he realized, necessary that it do so because – at least in modern times – no small republic could hope to marshal the resources necessary for its self-defense when attacked by monarchies of intermediate size or despotisms immense in size.
The first expedient suggested by Montesquieu was federalism. By means of federalism, a group of republics could project power in the manner of a monarchy while remaining small enough to be genuinely self-governing.
Montesquieu’s second expedient was the separation of powers. By distinguishing along functional lines between the executive power, the legislative power, and the judicial power and by distributing these three powers to different bodies in such a fashion as to render them separate and quasi-autonomous, the English had managed to transform a monarchy into a republic capable of sustaining itself on an extended territory. For emergencies, they had an executive capable of vigor, alacrity, and resoluteness. To prevent that executive from becoming a tyrant, they had a House of Commons responsible to the electorate and capable of calling the executive’s servants to account. To avoid populist excesses, they had a House of Lords capable of checking the House of Commons; and to protect the liberty of the citizens, they had judges who could not easily be removed from office and juries selected from among the peers of those accused.
The Americans combined both expedients. To begin with, they instituted a federation, building on the remnants of the old colonial system and on the structure that existed under the Articles of Confederation. At the center, they established a government of limited powers – capable of defending the nation, of guaranteeing to every state a republican government, of regulating commerce between the states, and of responding to emergencies. To the states and local governments, where the territory was comparatively small, they left all other legitimate powers. To make the federal government in some measure independent of the states, they provided for direct popular election of the House of Representatives; and to enable the states to protect their own prerogatives from federal encroachment, they had the state legislatures elect the federal senate.
At both the state and federal level, the American founders instituted a separation of powers, giving to the executive, the legislators, and the judiciary the means by which to defend their own prerogatives and the motives for doing so – and, by dividing and separating the powers, the Founders sought to make the government and its operations visible to the citizens. Each branch served the general public as a watchdog with regard to the others.
The measures undertaken by the Obama administration and by its supporters in Congress that gave rise to and sustained the Tea-Party Movement all have this in common. They constitute an assault – evident to anyone who cares to look – on our inherited political order. They transgress on the two great principles constitutive of that order. They are inconsistent with federalism and the separation of powers...
That part of the idea remains important today: a major part of the friction we have in the United States comes from the use of the Federal government to impose one-size-fits-all solutions on the whole of the nation. The more urban blue states have some basic assumptions about law and justice that are incompatible with what the more rural red states believe, and vice versa. Some of those issues have to be Federal issues (e.g., does the Constitution authorize programs like Social Security?). Many, though, could be handled in a Federalist manner without causing injustice to anyone -- after all, if they really did not like the interpretation of the state of California (say), they could move to New York or to New Mexico.
Such a model gives us more liberty, as we are free to have several different modes -- at least as many as fifty, as there are that many states. Individuals can then choose from among the many interpretations what they prefer for themselves and their families. Furthermore, they can then live at peace with their neighbors who feel differently, instead of constantly being in friction with each other over the attempt to finalize a 'one-size-fits-all' solution that their faction prefers.
Thoughts, on the essay or on these matters that it raises?
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