Redeeming The Spirit Of 1787
Over at The Other McCain, Smitty provoked an interesting bit of back-and-forth between commentators Jeff Y and Adjoran regarding the 16th and 17th Amendments to The Constitution.
Jeff: The [#Occupy] protesters are typical. The liberal mind cannot comprehend limited government.
This all brings to mind de Tocqueville’s observation: “A democratic government is the only one in which those who vote for a tax can escape the obligation to pay it.”
The Sixteenth Amendment was a great Progressive victory. It may yet destroy us.
Adjoran: The Seventeenth has done much greater damage, along with the rule change some years ago to lower the requirement for cloture to 60 from 2/3 (67 as it stood). These were the more fundamental changes in the form of government which made gridlock LESS likely, to our eternal regret.
ObamaCare could not have passed a Senate composed of those elected by State legislatures OR if 67 votes were needed.
High or low tax rates can be changed by any Congress with the assent of the President. The trick isn’t in the taxes, it is in the level of government services the people demand, which must be paid for somehow.
Jeff: Even with the states back in the Federal government, the income tax power is too broad. The income tax gives government way too much money.
I think the trick is the taxes: the explosive growth of government in the 20th century was entirely fueled by income taxation.
I think they are both right. I think both Amendments on their own have altered the form of government in conventional ways, but together, however, they were nuclear. Both, along with the 18th, were products of the Progressive surge that our conservative and classic-liberal forefathers failed to combat because they refused to comprehend the danger of this kind of thinking. They were negligent in investigating the logic behind Progressivism.
The same thing has happened in America in the last forty years, when we conservatives [ideological Libertarians are a lost cause*] let the ‘New Left’ march unhindered through every institution, infecting all of us with the mutation known as Leftist Thinking, while they were at it. The abnormal became normal.
We have a chance to redeem ourselves by such acts as taking the #Occupy event seriously and refusing to compromise with the Left on anything. Their thinking is anti-American, specifically, and anti-Life, generally. The Left seeks to be as God and Immanentize The Eschaton, bring about Heaven on Earth. That is their Golden Calf.
-In the main posting, Smitty offers a possible way for us to battle the forces of the Left that are entrenched in the national government:
…if federal over-reach is the problem, gridlock may be a powerful tool to limiting government overreach.
Agreed. Gridlock should be seen as merely a delaying tactic or a diversionary one in a greater battle. It can be used as in The Battle Of Cannae: ‘grab ’em by the nose and kick them in the ass’. Or it can be employed to provide breathing space to give time for us to regroup and marshal our forces for some shock and awe.
I trust the wisdom of The Founders who made the Senate explicitly to take their time in deliberations over issues. That body was specifically justified to be a check on legislation passed by the House in the heat of the moment. When the Senate, with the passage of the 17th Amendment became a glorified version of the House, that vital role was taken away from it and we have been living with the horrid consequences ever since. The only way checks and balances are going to work is if the competing bodies are so constructed that they produce a different culture, a different mindset in their members.
As Joseph Story wrote in his Commentaries On The Constitution:
§ 697. Another and most important advantage arising from this ingredient is, the great difference, which it creates in the elements of the two branches of the legislature; which constitutes a great desideratum in every practical division of the legislative power. In fact, this division (as has been already intimated) is of little or no intrinsic value, unless it is so organized, that each can operate, as a real check upon undue and rash legislation. If each branch is substantially framed upon the same plan, the advantages of the division are shadowy and imaginative; the visions and speculations of the brain, and not the walking thoughts of statesmen, or patriots. It may be safely asserted, that for all the purposes of liberty, and security, of state laws, and of solid institutions, of personal rights, and of the protection of property, a single branch is quite as good, as two, if their composition is the same, and their spirits and impulses the same. Each will act, as the other does; and each will be led by the same common influence of ambition, or intrigue, or passion, to the same disregard of the public interests, and the same indifference to, and prostration of private rights. It will only be a duplication of the evils of oppression and rashness, with a duplication of obstructions to effective redress. In this view, the organization of the senate becomes of inestimable value. It represents the voice, not of a district, but of a state; not of one state, but of all; not of the interest of one state, but of all not of the chosen pursuits of a predominant population in one state, but of all the pursuits in all the states.
§ 698. It is a misfortune incident to republican governments, though in a less degree than to other governments, that those, who administer it, may forget their obligations to their constituents, and prove unfaithful to their trusts. In this point of view, a senate, as a second branch of legislative power, distinct from, and dividing, power with the first; must always operate as a salutary check. It doubles the security to the people, by requiring the concurrence of two distinct bodies in any scheme of usurpation or perfidy, where otherwise the ambition of a single body would be sufficient. The improbability of sinister combinations will always be in proportion to the dissimilarity of the genius of the two bodies; and therefore every circumstance, consistent with harmony in all proper measures, which points out a distinct organization of the component materials of each, is desirable.
§ 699. No system could, in this respect, be more admirably contrived to ensure due deliberation and inquiry, and just results in all matters of legislation. No law or resolution can be passed without the concurrence, first of a majority of the people, and then of a majority of the states. The interest, and passions, and prejudices of a district are thus checked by the influence of a whole state; the like interests, and passions, and prejudices of a state, or of a majority of the states, are met and controlled by the voice of the people of the nation. It may be thought, that this complicated system of checks may operate, in some instances, injuriously, as well as beneficially. But if it should occasionally work inequally, or injuriously, its general operation will be salutary and useful. The disease most incident to free governments is the facility and excess of law-making; and while it never can be the permanent interest of either branch to interpose any undue restraint upon the exercise of all fit legislation, a good law had better occasionally fail, rather than bad laws be multiplied with a heedless and mischievous frequency. Even reforms, to be safe, must, in general, be slow; and there can be little danger, that public opinion will not sufficiently stimulate all public bodies to changes, which are at once desirable, and politic. All experience proves, that the human mind is more eager and restless for changes, than tranquil and satisfied with existing institutions. Besides; the large states will always be able, by their power over the supplies, to defeat any unreasonable exertions of this prerogative by the smaller states. [Book III, Volume II, Chapter X]
Gridlock is a powerful tool that has been diminished and must be seen as an essential part of our Restoration program.
* I am following here Russell Kirk’s distinction
between the various types of people who
call themselves ‘libertarian’.