Thursday, July 28, 2011

Of Carousels and Constitutional Amendments.

The following is an opinion piece I've been piecing together for a couple months. It is quite long; I apologize for the length.

If Stupidity got us into this mess, then why can't it get us out?” - Will Rogers

In 1932, as the country moved towards the repeal of the 18th Amendment and Prohibition via what would become the 21st Amendment, John D Rockefeller wrote in a letter:

When Prohibition was introduced, I hoped that it would be widely supported by public opinion and the day would soon come when the evil effects of alcohol would be recognized. I have slowly and reluctantly come to believe that this has not been the result. Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast army of lawbreakers has appeared; many of our best citizens have openly ignored Prohibition; respect for the law has been greatly lessened; and crime has increased to a level never seen before; ...

The rise and fall of the 18th Amendment fascinates me. It is a rare moment in history where many of those who pursued transformative change recognized that the tool employed to implement that change had failed to not only deliver, but exacerbated many of the same problems they had hoped to address and do away with. It is also interesting because it sets a degree of precedent for what a constitutional amendment can or cannot accomplish in the greater context of the American Experiment.

What is a constitutional amendment, in and of itself? A writ to improve the intercourse between a government and the governed by articulating and defining that relationship? A reflection of an evolving society grappling with its growth and needs and desires? Or, like any law created by the hand of man, something that aspires toward something “better” by revealing our own views and desires regarding the concepts of freedom and liberty (and how mutually exclusive those two terms actually are sometimes)?

Perhaps all of those observations have a fair claim to being the truth … but, as the case of the 18th Amendment reveals, the obligation to and ramifications of such concepts do not stop with ratification. It is my view that for the ideal of self determination to reach its full flower, a people must not only be able to take another step into the future, but understand the wisdom (or lack thereof) exhibited by their forebears and how it led to the here and now. The ruling of “Progress” is that what transpired and drafted in Philadelphia in 1787 has become, over two centuries, outmoded given our advancements in communications, travel, quality of life and economy as well as our shift in attitudes about religion, equality and the role of the federal government. Indeed, the conventional wisdom is that we have evolved as a society past what a bunch of dead white men could have ever dreamed.

But that is not correct. The document we call the Constitution, with its design of a federal government ruled by a logic of checks and balances, ceased to be the same document drafted in 1787 the day the Bill of Rights was ratified. It ceased to be that document when the 11th Amendment was ratified. And so forth through the decades as every succeeding amendment has been ratified. It can't be argued that we live under and can therefore objectively judge that original document as outmoded since we, as a nation, have repeatedly exercised this right, modifying its system to our attitudes. If it is to be a deemed a “living, breathing document”, then any failures attributed to it since its drafting must logically be laid just as much at our feet and every generation that did or did not have a hand in those modifications as equally- if not more- as it is the Framers'. The point is, to simply say we've outgrown a system we've molded and adapted to our needs and aspirations (and whims and manipulations) is disingenuous, hiding the objective conversations we should be having about our Constitution and its effect on us.

As a nation, we don't talk about the 18th Amendment's immediate predecessors, the 16th and 17th Amendments, and their considerable impact on our system (one could argue creating a new system, unique from the original), save as how they they were to increase the direct involvement of the average man in the workings of the federal government. We are taught these steps were enlightened and necessary steps to the advancement of democracy in favor of the federalist design where the states themselves were accorded suffrage in the form of the US Senate (as originally conceived) or the practical teeth of apportioning tax revenue for federal consumption. It is my (and others') opinion that these revisions damaged the federal system and the consequences are at the heart of many of today's problems.

Take a look at the following:

Politics does not determine prosperity. But in this day of concentrations, politics does determine the distribution of prosperity. Because the people have neglected politics, have not educated themselves out of credulity to flimsily plausible political lies and liars, because they will not realize that it is not enough to work, it is also necessary to think, they remain poor, or deprived of their fair share of the products, though they have produced an incredible prosperity. The people have been careless and unwise enough in electing every kind of public administrator. When it comes to the election of the Senate, how describe their stupidity, how measure its melancholy consequences? The Senate is the most powerful part of our public administration. It has vast power in the making of laws. It has still vaster power through its ability to forbid the making of laws and in its control over the appointment of the judges who say what the laws mean. It is, in fact, the final arbiter of the sharing of prosperity. The laws it permits or compels, the laws it refuses to permit, the interpreters of laws it permits to be appointed-these factors determine whether the great forces which modem concentration has produced shall operate to distribute prosperity equally or with shameful inequality and cruel and destructive injustice. The United States Senate is a larger factor than your labor or your intelligence, you average American, in determining your income. And the Senate is a traitor to you.

The treason of the Senate! Treason is a strong word, but not too strong, rather too weak, to characterize the situation in which the Senate is the eager, resourceful, indefatigable agent of interests as hostile to the American people as any invading army could be, and vastly more dangerous; interests that manipulate the prosperity produced by all, so that it heaps up riches for the few; interests whose growth and power can only mean the gradation of the people, of the educated into sycophants, of the masses toward serfdom; ...

These are not the observations of a right or left wingnut or blogger; these are some of the very words borne from and propagating movement for the passage of the 17th Amendment more than a century ago. David Graham Phillips was a muckraker commissioned by William Randolph Hearst to write a series of articles called The Treason of the Senate”, which appeared in Hearst's Cosmopolitan (then a variety magazine) throughout 1906, the above passage taken from its introductory remarks. I believe it illustrates that rather than further revise a 224 year old document, we should look at the legacy of some of the previous revisions from a century ago and how deeply enmeshed we are in their wake and their failings.

Once we get past the populist perception of how these amendments supposedly advanced democracy, it is empirically evident that they failed to induce responsible representative democracy much the same way the 18thfailed to induce morality by effectively eliminating alcohol. The Two Party system, a century later, is alive and well. Special interests, a century later, are perceived to be flourishing. Rather than having been stemmed, corruption is still a fixture in the public's view of the Senate. The states as states, deprived of suffrage, have taken to behaving precisely like the disenfranchised parties they have been rendered to be, pursuing massive class action lawsuits when a matter like healthcare-Obamacare- arises, forcing the courts to arbitrate and add to the view of judicial activism, all at the expense of millions and massive amounts of man-hours, demagogued as a “fools' errand”, though it is effectively their function and, frankly, only remaining recourse.

Taking this down an even more cynical vein, one could argue that multi-trillion dollar debts and the advent of the military/ industrial complex may never have came to be under a federalist system, themselves being byproducts of a system moving toward centralist ideals. The Senate, as a forum for equal representation of the states as states and therefore adding to the check of pluralism, would have acted as a practical counterweight to such things, making their collective existence muted, if not completely unlikely.

Phillips' admonishments of the “average American” is an interesting juxtaposition to Mark Twain's observation in his 1873 “License of the Press” address that the media of his day

has defended official criminals, on party pretexts, until it has created a United States Senate whose members are incapable of determining what crime against law and the dignity of their own body is—they are so morally blind—and it has made light of dishonesty till we have as a result a Congress which contracts to work for a certain sum and then deliberately steals additional wages out of the public pocket and is pained and surprised that anybody should worry about a little thing like that; …

Thirty three years and the narrative seems to have gone from complicit responsibility laid at the media's feet to that same media leading the charge against what it had apparently wrought decades before, and propagated by a series of articles commissioned by the king of yellow journalism to boot.

Taking Twain's thoughts at full value for argument's sake, the notion that factions of the press would play favorites for ideological or political benefit begs the question of how an enlightened representative democracy couldpractically exist if a 138 year old quote about the institution of journalism, charged with informing the “average American”, contains a rebuke of dereliction which appears to still be consistently valid. In nearly every conceivable way, empirical observation makes it seem unlikely, as either the outlets are “poisoned”, or 70 to 80 percent of us have “sh*t to do” and don't actively participate, robbing potency from the notion of democracy.

We look at the recent statements of Fed Chairman Ben Bernanke and many say they appreciate his “brutal honesty” as he admits he doesn’t understand the “precise” reasons why measures like the multi-billion dollar stimulus haven't worked. In many instances it is barely noted that he was a consistently vocal proponent of such dearly expensive and thus far negligibly effective initiatives. Virtually no outlet went on to note that Bernanke was appointed to his current post, much like the senators of old. Because of this, he will never face potential direct rebuke by the public for supporting such a position, a privilege those senators would have enjoyed as part of their station. But, interestingly enough, that same fact gave him the security to speak with relative candor about that failing, a security that those senators also could have enjoyed. Such behavior, of course, would be virtual political suicide to any savvy incumbent or candidate seeking (re)election.

How can this not count as the ultimate failing of the 16th and 17th amendments? Senators were once afforded the ability to be the marshals of sober discourse via security of appointment, but due to complicity with the state legislatures of the day that security and ablitiy was officially given away in 1913, under public pressure. What all parties ultimately lost is immeasurable. Ever since, we've increasingly moved towards applauding any precious hint of candor and self inventory, instinctively sensing its need in honest debate, yet not asking why it is so needlessly rare.

Again, David Graham Phillips' words; from “Treason of the Senate”:

A man cannot serve two masters. The senators are not elected by the people; they are elected by the "interests." A servant obeys him who can punish and dismiss. Except in extreme and rare and negligible instances, can the people either elect or dismiss a senator? The senator, in the dilemma which the careless ignorance of the people thrusts upon him, chooses to be comfortable, placed and honored, and a traitor to oath and people rather than to be true to his oath and poor and ejected into private life; ...

And again, I can't help but juxtapose this with Twain, this time with his 1907 lamentation “Purchasing Civic Virtue”, where he saw himself as a “moral coward” for declining to give a speech at the then annual Convention of the Grand Army of the Republic, as he couldn't reconcile within himself to reproach such brave men for not protesting the beginnings of a welfare state that he felt had degraded the old soldiers' pensions to the same dignity as a “bounty jumper”. Twain plainly states: “[i]t would be one tottering moral coward trying to rebuke a houseful of like breed – men nearly as timid as himself but not any more so.” Based on his contemporary writings, Twain, who ran the gauntlet of American politics through his life, was beginning to see the eventual rise of “monarchy” and centralized power in government via democracy as a reaction to perceived plutocracy, echoing Plato'swarnings in The Republic. Twain's ultimate conclusions, as stated in "The Drift Toward Centralized Power" (text taken from Twain's autobiography), are emphatic:

I suppose we must expect that unavoidable and irresistible Circumstances will gradually take away the powers of the States and concentrate them in the central government, and that the republic will then repeat the history of all time and become a monarchy; but I believe that if we obstruct these encroachments and steadily resist them the monarchy can be postponed for a good while yet;...

(As caveat, it must be noted that the mentioned “Circumstances” were the failing of the states to fulfill their duties, as Twain summarizes statements from then Secretary of State Elihu Root that it was “useless for the advocates of State rights to inveigh against ... the extension of national authority in the fields of necessary control where the States themselves fail in the performance of their duty," and that as a result" ... constructions of the Constitution will be found to vest the power where it will be exercised--in the national government." )

Our two mutually exclusive masters - our special interests versus our sense of equal and limited application - have become increasingly unbalanced between the impossible task of obeying the proper role of federal government and making that government the primary tool of realizing our aspirations and the hammer of our vindictiveness, our appetites for all and our obedience to none make us all “of like breed.”

Our quest for democracy has virtually murdered the healthiest ingredients to a self governing society by forcing all representing parties to endlessly pander to a populism deluded to and by the proliferation of special interests. We've spent a century of building an institution of “watchdog groups” and seeking to “properly educate and inform” the average person while the “average person” has become a myth in practical terms. Our mentality has made a special interest of each of us (an inherit danger of democracy in any measure, if left unchecked), what vestige of democracy we have disguising this fact behind numbers and semantics, each setback on the road to “progress” blamed on the “misguided”, the “ill informed”, the “class warriors”, the “greedy” ... charges that if true as suggested above, prove a fundamental fallacy in our practice of democracy, and, if false, prove our ineptitude in engaging in the vital sober discourse it requires. Charles Beard's assertion that the Framers were self interested agents may have some validity, but that assertion also must apply to us and any defense of our own self interests.

Abraham Lincoln, in one of his first politcal speeches, observed a wisdom that must remain forever relevant as it comes to the Constitution (and any of its amendments):

I do not mean to say, that the scenes of the revolution are now or ever will be entirely forgotten; but that like every thing else, they must fade upon the memory of the world, and grow more and more dim by the lapse of time. In history, we hope, they will be read of, and recounted, so long as the bible shall be read;-- but even granting that they will, their influence cannot be what it heretofore has been. Even then, they cannot be so universally known, nor so vividly felt, as they were by the generation just gone to rest. At the close of that struggle, nearly every adult male had been a participator in some of its scenes. The consequence was, that of those scenes, in the form of a husband, a father, a son or brother, a living history was to be found in every family-- a history bearing the indubitable testimonies of its own authenticity, in the limbs mangled, in the scars of wounds received, in the midst of the very scenes related--a history, too, that could be read and understood alike by all, the wise and the ignorant, the learned and the unlearned.--But those histories are gone. They can be read no more forever. They were a fortress of strength; but, what invading foeman could never do, the silent artillery of time has done; the leveling of its walls. They are gone.--They were a forest of giant oaks; but the all-resistless hurricane has swept over them, and left only, here and there, a lonely trunk, despoiled of its verdure, shorn of its foliage; unshading and unshaded, to murmur in a few gentle breezes, and to combat with its mutilated limbs, a few more ruder storms, then to sink, and be no more.

They were the pillars of the temple of liberty; and now, that they have crumbled away, that temple must fall, unless we, their descendants, supply their places with other pillars, hewn from the solid quarry of sober reason. Passion has helped us; but can do so no more. It will in future be our enemy. Reason, cold, calculating, unimpassioned reason, must furnish all the materials for our future support and defence.--Let those materials be moulded into general intelligence, sound morality, and in particular, a reverence for the constitution and laws: and, that we improved to the last; that we remained free to the last; that we revered his name to the last; that, during his long sleep, we permitted no hostile foot to pass over or desecrate his resting place; shall be that which to learn the last trump shall awaken our WASHINGTON; ...

The sins and triumphs of our generation should not always rest upon the sins and triumphs of yesteryear; our sins are the belief that by feigning kinship with past “progress” we become another link in some chain, building increasingly poor institutions upon an unsound foundation, only paying lip service to that unimpassioned reason. Indeed, nowhere do I see mention or echo of Madison's “well constructed Senateto “safeguard” the people “against the tyranny of their own passions.”

Dr Ralph A Rossum, in the concluding thoughts of his work Federalism, the Supreme Court, and the Seventeenth Amendment meditated on Lincoln’s cited thoughts of the effects of the “silent artillery of time” and concluded that efforts on the Supreme Court's part to impose federalist ideology upon a system that virtually abandoned it is akin to “attempting to breathe life into a corpse.” This is a fair observation given our current mentality. But also, this and various other works by several authorities seem to infer that if federalism is a long dead corpse, enlightened representative democracy as seen through a prism such as one Phillips' passages offer, can only be regarded as virtually stillborn, its afterbirth festering and polluting both any intelligent notion of a decentralized government's potential benefits and debate of reasonable mitigation that would preserve what validity we claim exists in our institutions.

Phillips' and Twain's passages, nearly a century after the 16th and 17th Amendments' ratification, should not be relevant, should not be taunting, should not be so near the root of everything we still perceive as wrong with our system after such constitutional remedies have been in place nearly as long now as the system they replaced. That is the true wisdom of Lincoln's words: we can never feel the immediacy of 1776, of 1787, of 1863, of 1913, of storming the beaches of Normandy or the marches for equality in the 1960s. I feel a degree of camaraderie with those that fought for these amendments, but as I listen to discussion of how the Senate is still the “most undemocratic in the world, how many balk at federal expansion and mechanisms even as they'd use it to further their own goals, which would leave us only a step away from a unicameral Congress. I wonder what those who voted from 1909 to 1913 would think of their achievements' legacy.

We watch Iceland and hear those who wish to impose further changes on our Constitution's original design as its logic becomes further dimmed by imposing democratic ideology on an inherently nondemocratic system. But so long as we live under the illusion of a enlightened democracy that does not, by our own indictment, factually exist and adhere to institutions that violate original logic even as we blame that logic for our situation, we will suffer and fail regardless of how far we chase that elusive tail down the rabbit hole.

We can't rewrite the 20th century. We can't dispel history or pretend its experiments were not without some success or merit in their contexts. But our remedies have proven utterly circular, have proven the antithesis of progress if we merely drift along the same philosophical course. Passion has helped us, but can do so no more. Repeal alone will not be enough. We have a century of attitudes and institution standing in the way of truly addressing our plight. It will be very difficult and will require an immense exercise in foresight, discipline, and logistics, probably not with dismantling the apparatus we have built, but with retooling and repurposing it for use by the states to some degree. But any genuine claim to cherish reason, health and honest progress demands a fearless consideration of these thoughts.

(Thanks To Vas Littlecrow Wojtanowicz and Skaja Wills for a sharp and patient editorial eye)


JohnJ said...

This is really good. People often lose sight of the fact that the goal is freedom, and they forget that the only way to accomplish that is by decentralizing government. It's easy, when you've had freedom for as long as America has had it, to just forget about it and place some other value, such as fairness (either everyone will be equally free or no one will be free) ahead of it.

I appreciate that you avoided use of the term "states' rights", which I've argued should be avoided because it is political dynamite. And anyways, states do not have rights. The goal is a limited central government, and the best way to enforce those limits is with a bicameral legislature, one house of which is appointed directly by the people, and one house of which is appointed by the people's representatives in their decentralized capacity to enforce those decentralized limits.

Thanks for a great read.

John said...

I agree to a point about the term "states' rights" in that it can be counterproductive. Actually alot of how I wrote this was with an eye towards avoiding things that I knew were nonstarters or derailers ... very tough, because they were sources and ideas I personally believe in very strongly.

It was quite a challenge to avoid partisan attitudes and argue from a perspective of reason that all sides claim to adhere to. Sounds like I managed to pull it off.

Thanks for your thoughts and feedback!

Anonymous said...

Excellent post, very well written. Would love to see this on all the newspaper front pages and tv shows for more exposure.