Send via SMS


Sunday, February 19, 2006

Federalist 51

Federalist 51 is where Madison said, "If men were angels, no government would be necessary."

In the very next paragraph, he says, "In framing a government that is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place, force it to control itself."

The great difficulty indeed. We have proof, after 200 years in operation, that our constitution has not succeeded in controlling government. The federal government is out of control is several senses. First, the Constitution cannot control its agents, congresspeople. Corruption is the most basic of agent diseases, and is largely absent from American government, at least as compared with other governments. More subtle than corruption are the diseases of agency that the public choice people describe. More subtle yet is the passive aggressiveness that characterize our agents tendency to delegate politically risky choices to regulatory agencies it creates. No self-drafted law can control the creative subtlety of our congresspeople.

It's not the size of government I dislike but the manner in which we got here. Government spending at all levels has increased dramatically, of course. Contributing to the increase is accounting rules that are bent to allow spending to increase before it is backed by tax revenue. An even greater contributor is the absence of actuarial intelligence or cognizance from our representatives.

Second, the Constitution cannot control our judges. Although the constitution does not say that federal courts can declare laws unconstitutional, Federalist 78 and Marshall in Marbury v Madison articulate this power and responsibility well. In the case of Marshall, it is done in some detail. It is impossible to recognize Marshall's stated process in today's Supreme Court decisions, yet Marbury v Madison is taught in high school as a major event and decision at the founding.

Actually, Marbury v Madison came 12 years after the founding, and not another law was struck down as unconstitutional until Dred Scott 50 years later. Some precedent. And Marbury v Madison would be called today "passive aggressive;" Marshall claimed the power to declare laws unconstitutional while endorsing the dirty work of the new (Jefferson) administration. Judicial Review power has been used heavily since the Civil War, but the methods of judicial review are new -- created by creative judges and creative nominators and confirmers of judges.

This is not an argument for "Originalist" interpretation of the constitution, although we might be better off if that were to occur. It is rather an argument to support Hamilton's Federalist 78 prediction that "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution." One can argue that the judiciary has indeed been dangerous by "legislating from the bench." However, I would argue that the judiciary has always done what the executive and legislative branches wanted, albeit with occasional delays of a decade or two. The judiciary can only be a temporary check on the other branches. This is key learning of 200 years.

I would also argue that judicial checks on the legislature are in the nature of legal content rather than legal process. Each house of the legislature makes their own rules, and these rules may or may not contribute to representing the people to the best of their ability.

In any case, I have devoted much time recently on learning how we got where we are and what some of the ideas are for fixing the system. My interest is long-term, in decades, not what can be achieved in this political cycle. My interest is not in which political party is in charge. My interest is in how the system can be made to be more easily self-correcting -- that while crises are always the driving force for reforms, we should make it possible for less life-threatening (read: liberty-threatening) crises do the job. My task is a naive one, and I accept the challenge.


Post a Comment

Links to this post:

Create a Link

<< Home