Sunday, September 26, 2010

How to Decide the Powers You Should Grant a Government....

'What I have always found most extraordinary about the Constitution is that a bunch of powerful and ambitious politicians wrote a document to restrain people just like themselves. Instead of thinking, "What powers do I want when I'm in charge?", they thought, "What powers do I want that low-down skunk of an opponent of mine to have when he is in charge?" '
   --Comment posted by "bampbs" in response to a Economist article "Worshipping the Constitution." 

One of our many vices as a political, factional people is to judge something on its momentary advantage, and not think of what one's enemy might do with such power when their turn comes. It is a fatal flaw.

Senator Fulbright complained in the midst of the Vietnam War that in voting power to President Johnson war powers based on the Gulf of Tonkin incident, he had considered only what he thought this President would do with the power being granted, instead of considering what any President might do with such power. (He complained when Nixon, a Republican, became president after Johnson, a Democrat.)

I remembered this when Reagan was elected, and Democrats went into shock when it became clear that the powers they were eager to grant the Democratic president -- basically the power to "do good," the most common excuse -- was about to be exercised, not by an enlightened, liberal Democrat with values and views consonant with their own, but by a Republican with entirely different ideas of what "the good" was. (The Republicans make the same lament when the shoe is on the other foot, of course.)

Why the Constitution Is That Way
It was precisely this paradox that drove the Founders to consider and reject various schemes for ensuring that government power would be exercised wisely and properly, by the right sort of people. In the end they concluded that you simply can't ensure this, not in the long run. In the long run, somebody whose ideas you hate will seize the reins of power and proceed to 'misuse' the power you grant so eagerly to government authority when it was your people in power. 

So the Founders came to the entirely reasonable conclusion that, since power will always be abused and liberty will always be at risk, the only sensible thing to do -- the only way to ensure the liberties of the people over the long term -- was to limit the power the government could have. 

To limit it severely, in fact, and to forbid the government from taking more power (without a Constitutional amendment, made consciously hard to create). 

They were willing to sacrifice the convenience of the ruler to secure the freedoms of the people.

Our (Overly) Optimistic Founders
Sadly, they were overly optimistic; they thought that the phrase "Congress shall make no laws" could not be loosely interpreted; that a structure plainly granting specific powers could not be misunderstood as granting specific liberties -- and just to make sure, they added the 9th and 10th Amendments, hah hah. Two centuries of relentless work by those who see governmental power as a wonderful opportunity for self aggrandizement -- whether to solve problems their way, or to enrich themselves, or to impede competition, or to punish the recalcitrant, or to 'solve' urgent moral problems -- have managed to turn their whole plan upside down. And the Founders also didn't seem to realize that, in time, the people would no longer understand why the Founders had fought so hard to limit government power.

All of the arguments as to why Constitutional limits on government power should be eased, lifted, bypassed, ignored as inconvenient to the modern world are arguments against the fundamental insight of the Founders that power will always be misused. The insight, in fact, in the opening quote of this post. In effect, modern commentators want, ultimately, to brush aside the Constitution -- not amend it, not debate it, not rework it. They insist on finding arguments that will justify ignoring the inconvenience of the Constitution's impediments to their strongly felt desire to use power to do things they think they should be done. 

It's depressing. The Constitution isn't 'modern?' It allowed slavery (back when it was incapable of stopping it)? It didn't give the vote to women (in 1780)? It didn't take into account the really, really important problems we *uniquely* have today that can only be addressed by exercise of government power and authority forbidden by the Constitution because the Founders didn't realize how things have changed?

Oh please. If there is one thing the Founders *would* recognize if thy returned to modern-day Washington, it's the very familiar grasping for power -- not just by politicians, but by every rent-seeking American.

What Would You Do?
So we are left with one remaining argument to fight back: If you believe the Constitution is obsolete, that its strictures on government power should have no force, that this is a Constitutiuon of enumerated rights and not one of enumerated powers -- answer this vital question: How would you rewrite the Constitution? How would you ensure that it does not enable future tyranny? Or do you in fact not believe in the risk of tyranical exercises of power?

Or do you think only your people will ever after hold the reins of power?

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