A Republic No More. Jay Cost

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СКАЧАТЬ a time, Madison—wanted a government of expansive powers wielded by nationalistic institutions. Meanwhile, a faction composed of men like George Clinton and Patrick Henry were suspicious of centralized power and wanted to retain a local preeminence in the government’s institutions. The Constitution occupied a middle ground between these sides, although many Anti-Federalists opposed its ratification until the very end.

      A comparison between the dueling plans at the Constitutional Convention—the Virginia Plan, largely the brainchild of Madison, and the New Jersey Plan, offered by William Paterson of New Jersey—is illustrative. The Virginia Plan would have given the government the right to legislate, “in all cases to which the separate States are incompetent: or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” It also would have made it much less dependent upon local interests. For instance, the Senate would have been apportioned by population, with no guaranteed representation for states; further, the national legislature would have veto authority over state legislatures, and a Council of Revision would have review power over national laws. Meanwhile, Paterson would have retained the same Congress as existed under the Articles of Confederation. There was to be no single president, but rather an executive council selected by Congress. Further, Congress would have the power to tax and regulate interstate commerce, but state courts would hear initial disputes over these powers.

      Thus, the fight between the two sides was not simply about the power of the government, but also its design. And the final Constitution represents a compromise along both dimensions—the nature of federal power and the nature of federal institutions. Power was expanded and institutions were nationalized relative to the Articles of Confederation, yet by less on both counts than what the Virginia Plan called for. But there is more to it than this. The only way a system of checks and balances could ever possibly work is by ensuring that each institution possesses the right amount of power to guard against encroachments from the others. Thus, the Framers could not merely split the difference between the two sides of the debate; instead, they had to find an intellectually coherent middle ground. The debate over the Constitution was not like a fight over appropriations or taxes in contemporary politics, where both sides pick a number in the middle regardless of whether it makes sense. The Framers had to satisfy all sides while also building institutions that could wield their powers responsibly.

      Think of it this way. It would have been grossly irresponsible of the Framers simply to have granted the parochial Congress under the Articles of Confederation all the powers in the new Constitution. The old Congress would have failed miserably because it was not designed to handle such important responsibilities. By the same token, it would have been a waste of effort to create a new, more nationalistic set of institutions without expanding the powers granted under the Articles of Confederation. Instead, the powers the new government was to wield had to fit logically with the institutions that were to wield them. The Constitution is not just a compromise between various factions on one question about powers and another question about institutional design. Rather, it is a sensible blend of the views on both questions.

      So how does corruption enter the picture? In this way: since virtually the start of the federal government, politicians have been intent on expanding its powers without revising the institutions that manage those powers. In this, they have dutifully followed public opinion. The country has increasingly demanded nationalistic authority for the government, but has refused to abandon the parochialism inherent to the original design. Indeed, Americans are wont to celebrate the contradiction: we unabashedly demand that our government exercise sweeping powers to solve big, national problems while also remaining excessively sensitive to local concerns. This inconsistency has disrupted the carefully constructed balance set forth in the Constitution. The institutions the Framers created were competent to handle responsibly the powers they assigned them; Americans since then have added extra powers under the false assumption that the same institutions could handle the extra load responsibly. But they cannot, and so the government now behaves irresponsibly. This produces corruption.

      Return to Wilson’s metaphor of the Constitution as a Newtonian system. Each provision is like a force that has a unique vector, and the Framers carefully constructed each one so that the totality of these forces would not only promote true republican government but also satisfy the political demands of the day. Over time, political demands evolved, and politicians have responded by expanding the powers that Washington possesses. In doing so, they have altered the vectors of many of the constitutional forces. But they have never taken care to ensure that the necessary republican balance is retained, by updating the institutions supposed to implement the new powers. Thus, the sum of all the forces produced by the constitutional regime no longer generates public-spirited policy.

      To be clear, the problem is not with expansive governmental powers per se. Rather, it has to do with the institutions of government that exercise those powers. Specifically, we use eighteenth century institutions, originally meant to do much less, to exercise virtually limitless power in the twenty-first century. We could, in theory, redesign the government to make it handle these powers responsibly; we could rebuild the system from the bottom-up following the general principles set forth by Madison. But of course, we have never done that. We have never even really thought seriously about that prospect. Instead, we have chosen to have our cake and eat it too—a government of vast nationalistic powers with parochial institutions. The cost of our ambivalence is corruption.

      There are three major nationalistic powers the government has acquired that the Constitution, as produced in Philadelphia in 1787, never really anticipated. The first is the power to forge a national economic marketplace, the battle over which produced the first great political upheaval in the 1790s. As we shall see in Chapter One, the cornerstone of Hamilton’s program was a nationally chartered bank, which the Constitutional Convention in Philadelphia had explicitly rejected as a federal power. Yet this was deemed an implied power through the Necessary and Proper Clause of the Constitution, and thus began a precedent of interpreting the powers within the Constitution as broadly as politically possible. Since Hamilton’s day, both sides of the partisan divide have embraced the idea that the federal government should promote the national economy, and both sides seek to do it in ways that are not really reconcilable with the Constitution as understood at ratification. This is a power that expanded slowly throughout the ages. In the nineteenth century, it began with the Bank, then proceeded to internal improvements, then tariff protections for business, then direct subsidies for the railroads. Today, there is a vast system of federal supports for businesses, from the tax code to corporate welfare to selective tariff preferences. Putting aside whether these items were constitutional in a legal sense, the fact remains that the Framers envisioned very little of this regime.

      A second power is the restriction of the marketplace to secure noneconomic goals. The first major innovation of this type was the Interstate Commerce Act, which regulated the railroads. The nation has expanded on this regulatory power again and again. Often, these regulations are justified via the Commerce Clause, in Article I, Section 8 of the Constitution, yet the most prominent interstate commerce controversy of which the Framers were aware was a dispute over waterways between Virginia and Maryland. They had no idea that it would one day justify penalties against wheat farmers who grew their crop for private use, as happened in Wickard v. Filburn. The Commerce Clause has become the means by which the federal government can regulate virtually any aspect of American life. Again, whether this is strictly constitutional is not nearly as relevant as the fact that the Framers never saw this development coming.

      The third power is the direct promotion of social welfare, akin to Franklin Delano Roosevelt’s freedom from want in his Four Freedoms speech of 1941. The first major promotion of social welfare on the federal level came with Civil War veterans’ pensions, but those were targeted and temporary. Since then, we have added Social Security, Medicare, food stamps, farm subsidies, and a vast array of other benefits. Again, none of this was imagined in the 1780s. For starters, the nation simply was not wealthy enough to have national support programs for the needy. On top of that, the kind of СКАЧАТЬ