Saturday, October 11, 2008

Forgetting Franklin and the end of the Republic

“Well, Doctor, what have we got—a Republic or a Monarchy?”

“A Republic, if you can keep it.”

-A lady asking Doctor Franklin if we got a republic or a monarchy. (Source: Bartlby's)

The Constitution of the United States can be considered an enacting document to supplant the Articles of Confederation which, in turn, were generated by the Declaration of Independence.  In that reverse order you have the justification under the Law of Nations for a people to terminate contact with their sovereign nation and become a sovereign nation on their own.  Those things that are talked about in the Declaration have their basis in not only the Common Law, as seen via the works preceding the Revolution in Blackstone's Commentaries, but in de Vattel's Law of Nations and the works of Grotius on the Laws of War and Peace and Laws of the Sea.  While the opening and most stirring parts of the Declaration is to declare what individuals are to have upon this Earth, it also sets forward that governments are set forth amongst men and that man will put up with much in the way of poor government before it becomes necessary to overthrow it.  That is prudent, in that governments protect their citizenry.  When governments abuse such rights of their citizens as is guaranteed under the Law of Nations and by such things as the Peace of Westphalia, then man has the right, indeed the responsibility to overturn such government and form a new one that will adhere to common practices and principles to allow the greatest liberty to individuals with the least amount of interference from government upon the individual.

One of the paramount institutions that mankind has devised is to give government the negative liberty we have so as to defend our nation.  It is a way to ensure that other Nations and those who abjure all civilized conduct and revert to the Law of Nature to reclaim their negative liberty will have a civil answer to them.  It is a right that is understood before Christian times, as every community, every individual, when attacked may defend themselves with whatever means they have.  When the followers of Jesus prepared to travel they were taught in the art of defense of themselves and told that if they had a cloak but no sword, they were to get a sword (Source: The Holy Bible, Luke 22:36).  The sword is NOT the arms to be used against beasts: hunting spears serve far better or bow and arrows, plus are cheaper and easier to wield.  What the sword is used for is the skilled defense of oneself and, in a cohort, an item of hand-to-hand combat that is lethal when used with skill.  When man reverts to the Law of Nature to practice war on his own, or with similar individuals who leave the bosom of civilized ways, they cannot be threatened with mere bow and arrow, or spear.  They have skill and must be defended against and the training for a sword is for that animal on two legs: man gone wild.  If they have reverted to the Law of Nature, then those attacked can and must defend themselves as that is ALSO part of the Law of Nature.  The ability to attack also creates the ability to defend and the liberty and right to use it.

When society takes up arms against the sovereign nation that is their progenitor, there is more than a physical and moral cost, but an actual cost in lives and treasure.  The colonies went deep into debt to achieve freedom, not just to France, but in the burial plots across the new nation that saw 10% of the population at the start of the conflict dead.  Even worse 15% remained loyal and fled to other Crown Colonies or back to Britain.  That young nation lacked 25% of its starting workforce to pay off their heavy debts, and the Articles put down in 1776 had no means of allowing a central taxing authority.  When peace was achieved the States of the United States sought to pay off their debt in traditional means via law: putting heavy tax burdens on the population.  Many went bankrupt and by 1786 the rallying cry of 'No Taxation Without Representation' was being heard again.  The Baltimore Convention called for a new Convention to draft a better set of underpinnings for the United States in Philadelphia the next year.  The United States would have been sorely pressed if only one, minor uprising had sparked to a wider rebellion, and the Shaysites nearly did that save for an intercepted message and hasty action by the paid for militia to defend an armory.  One message, one man, is all that stood between trying to retain the poor government the States had or turning into a path of violent dissolution and bloodshed.  The Philadelphia Convention was not a convivial set of conversations, but a desperate attempt to find something common to have a stronger government and yet one that could not put the liberty of the common man at risk due to tyranny, oppression and high taxes.  That action, to discuss the Constitution that was proposed until the majority of the States ratified it was a long one, but it channeled the essential fury away from arms and to the printing presses, and for awhile the postings about this went fast and furious.

There were two prime areas that came under contention: liberty and accountability.

Liberty is your ability, as an individual, to receive recompense for work and to put it to use as you see fit.  That is a prime economic liberty, and one that government must recognize as belonging to the individual, not society and not to government.  You have no 'right to work' but you do have essential economic liberty that allows you to use your rights TO work and to then utilize the fruits of your labor as you see fit.  By recognizing the personal liberty and how rights can be exercised for that liberty, government must recognize that imposing a 'right to work' is meaningless and bureaucratic as the individual already HAS that right and the essential liberty to utilize it.  Getting good work and someone to PAY you for it is another matter as that, too, is an essential part of economic liberty: who you get to help you on common projects and concerns.  In trying to enforce a 'right to work' government removes the essential liberty of allowing individuals or groups of individuals to decide, for themselves, who best will help them in a common project or concern.  The 'freedom of association' is that essential liberty and when applied to economics it allows you to determine who you want to hire.  Whenever there are laws put down to require equality of hiring, they should not be 'quotas' to 'require' that an individual hire by group or category.  Ending discrimination by race, ethnicity or other surficial forms of difference, when the equality of individuals is the same beneath the skin, is a restriction that is necessary if we are to have equality of opportunity for the citizenry.  Requiring equality in hiring is a mandate and coercive force upon the citizenry and must be fought at all times as such a mandate is fleeting and can be changed at the whimsy of government.  If it can mandate who you hire by how they look, it can also tell you who to fire by how they look, and that would lead to millions dead in Germany during World War II and more millions dead to Pol Pot.  Pol Pot had a perfect determination of who lived and died by their looks:  he decided.  The law suited him *perfectly*.  The tens of millions dead because of their jobs or good looks in comparison to the Great Leader is another matter entirely.

That is tyranny.

When I looked at Change and the Republic, one of the essential parts from James Madison came on the division of government and why it was necessary. James Madison in Federalist No. 48 on 01 FEB 1788 would look not only at the Doge of Venice and have problems with that, which was a limited methodology of trying to get a weak executive that would also administer laws fairly, but had some say in how tyranny might arise with unchecked government.  He had problems with each of the branches of government assuming powers of the other branches, while each is to be distinct and separated and serve as a check and balance to the other powers of the other branches.  There is a 'Unitary Executive' as only one individual is President.  Those powers invested in the office of the President are the Executive powers and go with that office and NOT to either of the other branches of government.  Those are not 'co-equal' powers but balancing powers of different type and kind.  One prime worry was, however, the legislative branch, and what it had done in times past:

If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceeding into the form of an act of Assembly, which will render them obligatory on the other branches. They have accordingly in many instances, decided rights which should have been left to judiciary controversy, and the direction of the executive, during the whole time of their session, is becoming habitual and familiar.

While talking about the Assembly in Venice, this applies to all legislative branches of all governments.  When by legislation a 'right to work', to use the above I talked about, is created, it creates an obligatory statute that the other branches must abide by.  The Executive can veto such an act and the SCOTUS can deem it unconstitutional as stepping in where Amendments IX and X hold all rights and liberty not mentioned as going to the federal government as retained by the States and the people.  If neither of those is done, then the law remains: a created 'right' by government that has no place in creating rights because all those not handed to it are reserved outside of the federal government.  The surest path of power in the United States or in any nation with a Parliament or strong legislature is through that very same legislative process and undermining the nation by it.  In an elected representative democracy the surest way to get such placement of individuals is by changing the political culture so that those against it become disgusted with politics and don't vote.

I looked at the this and found that Alexander Hamilton, in Federalist No. 26 from 22 DEC 1787 examined the ability of a legislative branch to create the military power to do this.  His idea, however, is more general than just that, but the accountability built in to the Constitution for the armed forces was meant as a check on that.  The more general point on how subversion must be slow and gradual, however, applies across-the-board to the legislative branch [bolding mine]:

The legislature of the United States will be obliged by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party in different degrees must be expected to infect all political bodies there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.

Schemes to subvert the liberties of a great community require time to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable that every man the instant he took his seat in the national Senate or House of Representatives would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties in order that they may be able to manage their own concerns in person.

Hamilton identified another three-part check upon the federal government:  the States and the people.  Again these are not 'co-equal' parts of an equation, but ones with highly different set of weights, measures and goals holding each other in check and balance.  The Constitution required State governments to appoint Senators so that the States would have equal say in that House to balance the say of the people in the House of Representatives.  The federal government could no directly tax individuals save in equal measure upon all, thus the States were handed the bill to pay from the federal government doing equal apportionment via population and the States then allowed to judge how best to administer such common debt to their people.  This concept of federalism is to have equal balancing by complementary powers, not equal powers, both within and amongst governments and the people.  The scheme to undermine that did, indeed, require time, and yet, within a few short years in the early 20th century, that concept of check and balances amongst the federal States and the people would be overturned completely. 

In a short 10 year time span the entire principle of representative democracy, government by checks and balances and by having accountable government amongst the checks and balances would be thrown out the window.  That came about because the idea of having a 'modern' and 'efficient' government were put forth by those seeking political power in America.  They were known as 'Progressives' and sought expedient 'efficiency' to create an 'efficient democracy' while forgetting that the concept of representative democracy via a federal system is anything but efficient.  That is by design, not by backwardness attributed to the non-industrial era it was formed in.  The very necessities of having accountable government that is restricted is inherently messy, slow, inefficient, prone to lurch in one direction and then lurch back, and, generally, hold accountability as its touchstone.  The governments of Pol Pot, Adolf Hitler, Josef Stalin, Fidel Castro, Benito Mussolini, and any other tyrant or dictator you care to name is very, very, very efficient.  Democracy, alas, must seek prudence in creating and executing good laws from popular mandate and that is messy, slow, inefficient and generally keeps the level of tyranny down.

In a constitutional democracy founded on the citizen's approval of government via a common compact, there is one place to go to change that document:  the citizenry.  Those who seek power seek to worry the population, inflame the population and seek to goad the population into eroding the very protections put in place to keep them secure from tyrannical government.  The Progressives, Socialists (International and National) and all manner of those seeking more power for 'modern government'  started inflaming simple Populism and turning it into a means to sell the people on the idea that government owes them more than just equal administration of the laws.  The power to do other wise, once put in place and those backing such power elected to office, then have the necessary keys to power to undermine the population by a series of crises, rewards and supposed misdeeds of their fellow man.  That formulation doesn't require an actual, stated, political party, but a larger set of actors pressing for a factionalized set of 'social movements' to make those movements 'equal'.  While having citizens judged by the color of their skin is wrong, in a land of where all humans are equal in stature as citizens, it is wrong and unjust to require that society change to 'right wrongs' done by individuals who could not escape prejudice.  That is not a power of government, to change minds and hearts of people, it is up to society to do that amongst the citizenry in open forums, debates and to hear such equality of man from our fellow man and to reason it out based on our principles of equality of law.  Justices is visited upon individuals, but the law must be colorblind to ensure that Just Ends are achieved via law.  You cannot tilt the balance and create unequal law and say it is 'Justice': it is enforced discrimination and an attack upon essential liberty of individual citizens.

Economic liberty is also put into peril by coercive 'anti-discrimination' laws as those that put mandates upon hiring then force businesses to practice some form of social welfare that is, by definition, left up to society to decide not government.  Before that, however, there is another area that government utilizes to create such laws and that is the 'regulatory power' that has defined limits in the Constitution.  As per Amendment IX and X, if the federal government does not have a clearly stated power, then it has NO power or right to operate in an area.  Even when it is given a power, it is a highly limited one as set down by practice, Common Law and the Law of Nations.  Here, in a twist of fate that is quite ironic, the urgings of Alexander Hamilton to have the federal government take a larger role in the economy comes into direct conflict with how government accumulates power as he laid out in Federalist No. 26.  I look at this concept of the limited economic intervention capability in this article, and then I look at the beginning of the Progressive Era in Presidential politics by tracing it to Theodore Roosevelt in this article.

In Chapter X of his autobiography (Source: Project Gutenberg), Theodore Roosevelt clearly states his view on Presidential power [bolding mine]:

The most important factor in getting the right spirit in my Administration, next to the insistence upon courage, honesty, and a genuine democracy of desire to serve the plain people, was my insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its Constitutional powers. My view was that every executive officer, and above all every executive officer in high position, was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of the departments. I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition. I did not care a rap for the mere form and show of power; I cared immensely for the use that could be made of the substance. The Senate at one time objected to my communicating with them in printing, preferring the expensive, foolish, and laborious practice of writing out the messages by hand. It was not possible to return to the outworn archaism of hand writing; but we endeavored to have the printing made as pretty as possible. Whether I communicated with the Congress in writing or by word of mouth, and whether the writing was by a machine, or a pen, were equally, and absolutely, unimportant matters. The importance lay in what I said and in the heed paid to what I said. So as to my meeting and consulting Senators, Congressmen, politicians, financiers, and labor men. I consulted all who wished to see me; and if I wished to see any one, I sent for him; and where the consultation took place was a matter of supreme unimportance. I consulted every man with the sincere hope that I could profit by and follow his advice; I consulted every member of Congress who wished to be consulted, hoping to be able to come to an agreement of action with him; and I always finally acted as my conscience and common sense bade me act.

Theodore Roosevelt clearly goes outside the lines of a restricted federal government by intentional act, not by happenstance or by chance.  Within each power domain the power of government is Sovereign: no others may hold those powers.  Those Sovereign Powers are highly delimited and restricted, and cannot be 'broadened' beyond common understanding of what they are.  By trying to appeal to the Preamble, Theodore Roosevelt forgets to mention who is speaking in that part of the Constitution:  We the People.  It a statement of a people forming a common compact that agrees upon common things they agree to do, and that government is just one way to achieve these things.  In all other instances, when government cannot do that due to its restrictions, the power of the people is Sovereign.  The people set themselves tasks and broad common agreement and then agree to utilize limited government means and ALL other means possible to achieve them as given in Amendments IX and X.  Inside government you cannot appeal to this as a 'broader base' for your powers: if they are not given to you in restricted means, then the people and the States retain all such powers.  And as the people are the SOURCE of such powers, government is limited by intent and obligated to live with that intentional limitations as given in the Constitution. 

The attack upon such 'backward' and 'archaic' government did not start with Theodore Roosevelt, but the first instances of successes would be traceable to the acts he first took in the office of the President.  Agreeing to a Treaty to limit opium is outside the regulatory powers of government, which had already mandated food and drug purity acts so the citizenry could be informed of what they were ingesting.  President Roosevelt was pressured by religious groups that sought a moral basis for such a treaty, even if it contravened the power given to government.  The government could shut off ALL trade with a nation that produced opium or used it, or put high tariffs on them, but it could not restrict the use of it once inside the country.  The first shift to 'moral' and 'efficient' government starts with the restriction of individual rights and liberty under the Harrison Stamp Act formed for the Shanghai Convention Treaty that President Roosevelt sent emissaries to attend as representatives of the government.  That was not an act of 'broadening' power, but one of bowing to pressure for authoritarianism and restrictions upon the general citizenry due to the moral outrage of the majority.  In a few short years doctors were being imprisoned for dispensing medications and an underground economy would form that would start to be supercharged with funds once this moralistic view of government got fully put in place with Prohibition.  And we live with the powerful mafias and drug cartels on a global basis that now wield as much or more power than many nations.  In trying to stop the exercise of liberty, we have paid dearly in cash, lives lost and individuals imprisoned because we could not form up simple 'clean and sober' laws for ensuring that the public was not put in danger by unsafe operation of vehicles, industrial machines... or government.

The Executive clearly did not act alone after Theodore Roosevelt left office, and even though Taft would serve he was a disappointment to Roosevelt, and the three-way battle with Woodrow Wilson would see Wilson winning the Presidency.  Later on in his autobiography Roosevelt takes his problems with Wilson public, not only responding to the criticisms of himself but also trying to figure out just what it was that Woodrow Wilson stood behind politically and philosophically.  What is the undertone that comes through from that work and Roosevelt's speech on the fitness of Americans to choose their government, is that he was seeing the additional power that he had added to the office of the President going to someone he did not understand or trust.  President Wilson would work with Congress to enact some of the most major intrusions into the lives of ordinary Americans and reverse the position of the US in regards to a National Bank system that had been laid down to rest in 1832.  The arguments in 1832 was that such a system was prone to cronyism, foreign influence and did not reflect the needs of the common man via banking direction and ownership.  Those exact, same problems would then be instituted in the new Federal Reserve system so as to marginalize the input of citizens and maximize the input of unelected bureaucrats and banking members.  That system worked so famously in 'regulation' that it took a stance in 1928-29 that would push the economy over the edge of a financial precipice into the Great Depression.

At that point in time the House of Representatives had already taken one severely anti-democratic measure and that was to set its own size as fixed while the population grew.  What that would do, over time, is water down the ability of the common man to know his or her representative.  Considering that the House would expand by nearly 50% if it kept its then-current 1911 ratio by 1940, that indicates that each member's representative ratio climbed.  Although the number of House members is fixed, the actual say by population percentage of an individual declines as the overall population rises.  This was clearly a problem and criticized before the Constitution was ratified by a number of individuals, and it was seen as an opportunity to dilute citizen based power and the ability to unseat unrepresentative members as they reward some over others in their districts.  As those following 'Progressive' doctrines say, they wanted a more modernized system, but they then have stuck us with a House of Representatives sized perfectly... for 1911.  When one criticizes representative democracy the foundation of having a growing number of voices to reflect the diversity of a growing population must be taken into account.  Indeed, at the founding with the Constitution, there was an extreme criticism that even at the most representative levels allowed, that being 1 per 30,000, an individual would have a hard time ever knowing someone before they were elected and then have trouble getting them out of office once they gained political favors.  Today that maximum House would be nearly 10,000 members, and yet we have a number of corporations on a global basis easily able to sustain such levels of human interactivity.  The question of the utility of fixed modernity against the capability of representation for maximum citizen input becomes a clear and vital one of the future.

Today, when looking at the 'global financial crisis' which appears to be delimited to areas that involve political meddling in the economy and practices that rival those of 1928-29 for leveraging money, one must ask: if all of these government institutions were meant to solve the problem, then why has it happened again?

What is astonishing is that in the manufacturing areas, the economy is robust with company growth and profits rising amongst many of the 'blue chip' firms.  Someone has certainly made adaptable financial and market structures, but not within government as these companies prove out.  The efficacy of regulation that has failed us, that has concentrated economic power into the hands of unelected individuals who are then pushed by those seeking 'social engineering' to political ends must come to the forefront.  If those on the current Left laud Europe, then they do have to face up to Europe being in a WORSE state than the US at this point in time.  Those highly regulated economies were already suffering from declining productivity, declining growth, and declining populations.  Now, with a financial problem the very institutions set up to mitigate them have failed and they do not have the economic power to drive themselves out of the problem they are in.  Government cannot mandate good economic times, save at a huge cost in personal liberty and freedom.  Then you don't have those to complain with and retain a voice in government.  Yet the omnipresent answer is always:  more money to more unaccountable individuals with less oversight all in the name of greater 'regulation'.

For all of these problems, the founders understood it in their terms via authoritarian governments that caused havoc due to changing political and familial ties.  The concept was to remove that influence of government as much as possible and to keep it out so that individuals would have a common environment that was equitable, equally administered and Just.  That would mean that not every trial, every circumstance or every happening would have a happy ending, but it would ensure the regularity of the overall system as we understood it was not set up to be 'nice'.  By providing 'a shadow of a doubt' for a reasonable common man as reason to let someone off, we took the position that punishment required unequivocal positive proof of wrong doing.  Even with that some innocents would still be punished because we are humans and live in an imperfect world.  Fairness is in the eye of the beholder and hard to pin down, but equal understanding of the law and how its processes works are to ensure equality of treatment if not Justice in each and every single case.  Those seeking a 'fair' system, a 'modern' system, and an 'efficient' system should be pointed to the killing fields of Cambodia or the gas ovens of the Third Reich: those were fair, modern and efficient.

Thus we are left with imperfect tools being wielded to ill-understood and unachievable ends in search of objective fairness.  No matter how nice the idea, that comes down to someday, those seeking 'fairness', ultimately finding out that a changing whimsy of what is 'fair' will put them on the short end of the stick.  By removing trust from ourselves and trying to place it into institutions designed as a punisher, we find ourselves wondering why such wonderful and lofty ideas as 'housing projects' begin to look like prison camps run by the inmates.  By seeking to mandate 'fairness' there is a creation of inequality before the law and administration of it.  Every time that is used for justification of an expansive government in our modern era, it has come to ill and lethal ends.  It is strange that a society that started out knowing that charity is in the doing and the giving on your own to build a better society now harbors those within it that want to remove individual liberty and rights and hand them to government for various reasons.

I do understand what the founders sought and it is the most highly adaptable system of government ever devised.  It was to be limited and play as little part as possible in daily life and allow the good people of the Nation to adapt to a changing world and representing them in the greatest amount possible to do the very basic things required of government.  That was what was put down in at the founding and it is one of the most 'modern' forms of government ever devised because it depended on a changing people who came together to be in a Nation with each other.  And when the call for a 'modern' system arises, its form must be examined to ensure it retains the greatest free play of liberty for the population just like the original one.  It is our trust in each other and self-governing that allows us to have a common society for the good of all concerned.  When we place those things in government *itself* we start on that road to tyranny and despotic ends justifying any means to get them.  Because the most adaptable form of government isn't one made today, but one made in the 18th century by a group of people who came together in common cause to break with their mother country and form such government that would not oppress them nor their children for their societal and religious views.

We are forgetting the wisdom of Ben Franklin.

And that will only come to bad ends.

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