The Conservative Sensibility Read online

  The filibuster is suited to a non-majoritarian institution in which fewer than 600,000 Wyomingites have as much representation as do almost 40 million Californians. Besides, filibusters delay but do not defeat political processes: Can anyone name anything that a majority of Americans have desired, strongly and protractedly, that has been denied to them because of a filibuster? Furthermore, some of what government does it has no constitutional warrant to do, and much of what government tries to do it does not know how to do. So the cause of good government, or at least of minimizing bad government, involves stopping things. On the other hand, when there is promiscuous rather than prudent recourse to procedures protecting the rights of legislative minorities, the resulting legislative paralysis makes elections seem of minor importance. This diverts political energies away from persuasion, sullenness permeates civic life, and politics become nasty, brutish, and interminable. When the Senate is dysfunctional, the House of Representatives might as well be, because the measures it sends to the Senate die there, not from amendments or rejection but from languishing in the limbo of senatorial unwillingness to proceed with what should be the regular order of a deliberative body.

  It might seem whimsical, and it certainly is futile, to argue that instituting direct election of senators was a mistake. However, it was. The Framers were right to have senators chosen by state legislature. The House, directly elected and with two-year terms, was designed for responsiveness. The Senate, indirectly elected and with six-year terms, was designed to be more deliberative and less responsive. Furthermore, grounding the Senate in state legislatures strengthened the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power to resist what has happened since the Seventeenth Amendment was ratified in 1913—the progressive (in two senses) reduction of the states to administrative extensions of the federal government. Severing senators from state legislatures, which could monitor and even instruct senators, made senators more susceptible to influence by nationally organized interest groups based in Washington. Many of those groups, who preferred one-stop shopping in Washington to being persuasive in all the state capitals, campaigned for the Seventeenth Amendment. So did urban political machines, which were organizing an uninformed electorate swollen by immigrants. Alliances between such interests and senators led to the lengthening of the senators’ tenures. The Framers gave the three political components of the federal government (the House, Senate, and presidency) different electors (the people, the state legislatures, and the Electoral College as originally intended) to reinforce the principle of separation of powers, by which government is checked and balanced.

  While we are recommending the inconceivable, another wholesome reform would be term limits for members of Congress—six consecutive terms for members of the House of Representatives, two consecutive terms for members of the Senate. Yes, this would deprive Congress of much institutional memory, thereby perhaps exacerbating the information and experience gap between the executive and legislative branches. So, term limits would further strengthen the case for larger, more professional congressional staffs. Of course, Congress will never send to the states for ratification a constitutional amendment limiting their careers. (In 1995, the Supreme Court ruled, 5–4, that term limits alter the qualifications for office in Congress and hence can only be imposed by an amendment.) So members of Congress will never put their careers at risk by making the decisions (e.g., pruning, or raising taxes sufficient to pay for, promises made in entitlement programs) necessary to put the nation’s fiscal policy on a sustainable path. Careerism contributes to carnivorous politics because for people who enter politics young and plan to stay forever, electoral defeat means not just the inconvenience of a career change but the terror of professional annihilation. So, absent term limits, campaigning becomes even more constant and desperate. Because of the presence of TV cameras in both chambers, the House and Senate floors have become stages for year-round campaigning. Televising Congress has had one effect predicted by those who opposed it: Floor speeches are used to generate an unending stream of pungent sound bites for the evening news. This has a deleterious effect on the deliberative nature of Congress’ proceedings.

  What is conceivable, and increasingly urgent, is a constitutional amendment to compel Congress to deliberate by compelling it to make choices. John F. Kennedy said in his 1962 State of the Union Address, “The Constitution makes us not rivals for power, but partners for progress.”72 Such boring boilerplate serves the interests of presidents, who use it to assuage public and congressional anxieties about the growth of presidential power. This growth results both from presidential aggression and congressional supineness. To say that “Congress has been complicit in its own diminution” is to be too kind to Congress; its complicity amounts to almost complete responsibility.73 Congress has either willingly vested vast discretion in presidents and executive agencies or it has refused to use its ample and adequate powers, the most efficacious of which is the power of the purse, to bring the executive branch to heel. Incapable of performing the most basic act of governance, the writing of a budget, Congress lurches from one “continuing resolution” or gigantic spending package to another, with members faced with the choice of accepting a pork-stuffed package in its entirety or shutting down the government. So the growth of government is the only alternative to chaos. Congress can at least partially rescue itself from itself, and by doing so serve the country and the Constitution its members are sworn to defend, by binding itself to another alternative.

  For many decades, conservatives subscribed, or said they did, to the “starve the beast” strategy for fiscal responsibility. Their theory was that if the government’s revenues were cut sufficiently, spending cuts would soon follow. As Milton Friedman wrote in 2003, “How can we ever cut government down to size? I believe there is one and only one way: the way parents control spendthrift children, cutting their allowance.” What fun this promised to be: Republicans could have the immediate pleasure of cutting taxes, and the disagreeable business of cutting spending would be put off until tomorrow. But tomorrow is always a day away. William A. Niskanen, a member of President Ronald Reagan’s Council of Economic Advisors, who probably wished that this would work, knew it would not: “It is most implausible that reducing the current tax burden of federal spending would reduce the amount of federal services that voters demand.” Actually, it is apt to increase that amount because it reduces the current cost—the cost to recipients—of those services. There is, Niskanen wrote in 2006, “no significant evidence that a recent high deficit ever had an effect similar to that of reducing a child’s allowance; the difference is that the federal government has a credit card with no effective debit limit. Federal spending is better described as buying government services at a discount equal to the deficit, the costs of which will be borne by someone sometime in the future.”74

  Today’s political discord is less durable and dangerous than an obvious consensus, one that unites the political class more than ideology divides it. The consensus is that, year in and year out, in good times and bad, Americans should be given substantially more government goods and services than they should be asked to pay for. Lamentations about the paucity of bipartisanship ignore the permanent, powerful, bipartisan incentive that the parties share and indulge to run enormous deficits, thereby making big government cheaper, for the moment. Government borrows part of its costs; the burden of the borrowing falls on future generations. This is a form of expropriation—taxation without representation of the unborn. No one knows at what percentage of gross domestic product the debt’s deleterious effect on economic growth becomes severe; no sensible person doubts that there is such a point. We will discover that point the hard way, unless Congress promptly sends to the states for prompt ratification a constitutional amendment requiring balanced budgets.

  The amendment proposed by R. Glenn Hubbard, dean of Columbia University’s business school, and Tim Kane, econ
omist at the Hoover Institution at Stanford University, would limit each year’s total spending to the median annual revenue of the previous seven years, allowing temporary deficits to be authorized in emergencies by congressional supermajorities. Because reverence for the Constitution is imperiled by tinkering with it, and because the supply of ideas for improving Madison’s document always exceeds society’s supply of Madisonian wisdom, the document should be amended rarely and reluctantly. Today, however, a balanced-budget amendment is required to counter two developments: the abandonment of the original understanding of the Constitution and the death of the political morality that expressed that understanding. For approximately 140 years, the government was restrained by the Constitution’s enumeration of its powers, which supposedly were “few and defined.”75 Before Congress acted, it considered what James Q. Wilson called the “legitimacy barrier”: Did the Constitution empower the government to do this or that? As late as the 1950s, Congress at least feigned fealty to constitutional limits: When it wanted to build the interstate highway system or subsidize college students, it referred, if perfunctorily, to the enumerated responsibility for defense. Hence the names of the National Interstate and Defense Highways Act (1956) and the National Defense Education Act (1958). Wilson thought the legitimacy barrier’s collapse was complete in 1965 when Congress intruded into the quintessentially state and local responsibility with the Elementary and Secondary Education Act.

  Democracy generally, and especially legislative bargaining, is inherently additive: Majorities are assembled by attracting components with particularized benefits. Christopher DeMuth notes that from the Founding to the 1930s–1960s New Deal–Great Society era, this natural tendency of government to grow was inhibited by the bipartisan political ethic: Deficits were neither prudent nor seemly except when “borrowing was limited to wars, other emergencies, and investments such as territorial expansion and transportation; and incurred debts were paid down diligently.” This tradition of borrowing for the future dissipated as government began routinely borrowing from the future in order to finance current consumption of government goods and services. DeMuth argues that a balanced-budget amendment is required because of the transformation of government from a provider of public goods (defense, infrastructure) to a provider of benefits (money and services) directly to individuals.76

  A constitutional amendment imposing congressional term limits would not obviate, but would lessen, the need for a balanced-budget amendment by diminishing the incentive to think of the next election rather than the next generation. Unfortunately, the careerism that makes term limits advisable means that Congress will also never vote for Warren Buffett’s instant fix for deficits: When, absent a war or other emergency, the budget is not balanced, all congressional incumbents are ineligible for re-election. Critics of a balanced-budget amendment warn that Congress will evade it by means of creative bookkeeping, stealthy spending through unfunded mandates on state governments and the private sector, the promiscuous declarations of spurious “emergencies,” and other subterfuges. Such critics inadvertently make the case for the amendment by assuming, not unreasonably, that the political class is untrustworthy. And that the people’s representatives really are, unfortunately, representative of the increasingly irresponsible people.

  The institutional reforms just discussed would help. But what Washington really needs are two things that the people who are represented there generally consider disreputable: ambition and pride. Neither is, however, a sin, in its proper place. Washington is at all times awash in ambition. Too much of it, however, is personal ambition, unleavened by institutional pride. At least two things are required to correct the current constitutional disequilibrium of presidents untethered from a sensible conception of their responsibilities and the administrative state unsupervised. One requirement is more institutional ambition in Congress. The other is more diligence from the judiciary in performing its indispensable duty to referee skirmishes along the borders of the separation of powers.

  This crux of America’s constitutional architecture works only when the possessors of the separated powers are jealous of their turf and prerogatives: “Ambition,” as Madison famously wrote in Federalist 51, “must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place.”77 Unlike many of America’s social problems (e.g., family disintegration), the causes of which are unclear and the solutions to which are unknown, the causes of, and the correctives for, the imbalance among the federal government’s branches are, we might say, self-evident. The way for Congress to stop off-loading its powers onto the executive branch is to stop. To stop passing faux laws that merely express Congress’ sentiments (e.g., for this or that educational or environmental outcome), leaving to executive agencies the actual lawmaking task of saying what behaviors are prescribed and proscribed. And Congress can claw back some abandoned powers by, for example, requiring congressional approval of all new “major” regulations—those with at least a $100 million impact on the economy. These measures would require an end to slovenly lawmaking by a Congress too lazy, or risk averse, or both, to be precise in making intellectually difficult and politically dangerous policy choices. Doing so would, by minimizing ambiguities, obviate the Supreme Court mistake known as “Chevron deference.” It is named for the 1984 case in which the court propounded this principle: Courts are required to defer to administrative agencies’ interpretations of “ambiguous” laws when the interpretations are “reasonable.” This is an incentive for slapdash legislating by Congress, especially when a congressional majority thinks of itself, in an un-Madisonian way, not as custodian of a rival institution but as a supportive teammate of the president currently commanding the executive branch.

  Finally, if Congress so lacks institutional assertiveness that it sloughs off its Article I powers onto Article II entities, then the Article III courts, and especially the Supreme Court, should revive and enforce the non-delegation doctrine. It is that Congress cannot constitutionally delegate legislative powers to government agencies or private entities. Such delegation, which has fueled, and been justified by, the growth of the administrative state, is convenient for Congress, which thereby outsources some of its responsibilities. But such delegation is incompatible with the separation of powers and those first fourteen words of the Constitution that follow the Preamble: “All legislative powers herein granted shall be vested in a Congress of the United States.”

  Like Chevron deference, which Justice Neil Gorsuch calls “a judge-made doctrine for the abdication of the judicial duty,” non-enforcement of the non-delegation doctrine is a judicial temptation that courts have dealt with as Oscar Wilde recommended dealing with temptation: by succumbing to it.78 Courts are understandably wary of the intellectual challenges and political risks involved in defining what degree of discretion that Congress grants to agencies amounts to an unconstitutional grant of legislative power. But if the courts will not police this practice, it will proceed and, unpoliced, will accelerate. It will because it serves the aggrandizement of the executive and the flight from responsibility by the legislature. This perverse convergence of the disreputable interests of the two political branches of the federal government is one reason, but only one, the next chapter will argue, that the judicial branch must become more energetic and engaged in defense of the separation of powers that the separation is supposed to serve: Liberty.

  Chapter 4

  THE JUDICIAL SUPERVISION OF DEMOCRACY

  Difficulties with the “Counter-Majoritarian Difficulty”

  There is no such thing as an achieved liberty; like electricity, there can be no substantial storage and it must be generated as it is enjoyed, or the lights go out.

  Justice Robert H. Jackson1

  Symbols can resonate like well-struck cymbals. There is profound constitutional importance in the symbolic fact that the Constitutional Convention met in the room in which the Declaration of Independence was debated and endorsed. By re
placing the Articles of Confederation, the convention effected a course correction, but not a rupture with the nation’s fundamental purpose and destiny. The Constitution continues what the Declaration began. Lincoln did not begin the first of the Gettysburg Address’ ten sentences with the words “Three score and fifteen years ago…” That would have meant that “our fathers” had “brought forth” a new nation in 1787, with the writing of the Constitution. The Constitution created a new regime. The nation, however, was born with the Declaration of Independence. Lincoln’s career, indeed his life, was devoted to strengthening the cords of understanding by which citizens are bound to the republic. This required imbedding the Founding and the doctrine of natural rights at the center of national identity. And as the philosopher Leon Kass says, the Declaration was not a specifically “democratic” document in that “it did not by itself specify any particular form of government.”2 Any government is legitimate if it secures natural rights and rules by the recurrently expressed consent of the governed. So, of the three prepositions in Lincoln’s formulation—government of, by, and for the people—it is the third that is dispositive. It is most probable that government will function for the people—will, that is, do what is most important, secure their rights—if it is government of and by the people. So the Declaration is a contingently, implicitly democratic document; it implies that democracy is the form of government with the highest probability of being government truly for the people.