Balkinization  

Saturday, December 22, 2012

Is America Governable? (II)

Sandy Levinson



I note two quotes from today's story in the NYTimes on continuing gridlock in Washington.  The first is from Peter Wehner, described as a "former top White House aide to President George W. Bush."   “The stars are all aligning the wrong way in terms of working together.  Right now, the political system is not up to the moment and the challenges that we face.”  The second involves Tom Daschle, the former Democratic majority leader in the Senate, who is described as fearing that "Washington would remain paralyzed on taxes and other issues until the country truly faces a crisis. 'I worry that it’s going to take that kind of a condition to bring people to the reality that they can’t mess around here anymore,” Mr. Daschle said." 

Both are telling--and ominous.  We don't know, of course, what Mr. Wenher means by "the political system" that is inadequate to our challenges.  Perhaps he means "only" the crazed Right Wing in the House who despise his old boss (for all of the wrong reasons) and whatever failures he wishes to assign to President Obama or the Senate Democrats.  I, of course, have my own definition of "political system" that links it to the Constitution, and I won't repeat those arguments.  Mr. Daschle may be aware that most defective constitutional orders change only after a "true crisis" (or, at the least, the perception of being faced with such a crisis, as was the case in 1787 and explains the calling of the Philadelphia Convention).  

Alexander Hamilton wrote memorably in Federalist 1 that the true challenge/model posed to and by Americans was whether we, or any political order, was capable of engaging in "reflection and choice" about the most basic political propositions.  My new "project" is to write 85 short essays on each of the Federalist essays, and the them of the first one is to ask whether "reflection and choice" was a one-time event, that we are incapable of repeating either because (pick one):  a) we lack a Washington; b) we lack Madison and Hamilton, and we couldn't safely exile Jefferson- and Adams-like figures to places far away where they couldn't participate in the deliberations; c) we were blessed by elite governance in 1787-88 and today, alas, we are governed by the democratic mob in whom we have no faith; or d) we are just too large and diverse to engage in meaningful self-governance, so better to stick with the devil we know than to embark on a dangerous national project of "reflection and choice" that would almost certainly fail and leave things even worse than they are now.


Comments:

Even though we speak the same language, talking over each other may resemble a Tower of Babel. So for the time being, I pick d), with the hope that we can listen to each other. We owe it to our children, grandchildren, etc, to demonstrate that the Mayans were decades, centuries, at least, off the mark. I plan to enjoy the holidays with my family and wish for Peace on Earth, Good Will Towards Mankind, in secular terms.
 

I'm not sure that the question, "Is America governable?" is one which can properly be answered in isolation from what the governors are attempting to do. Democracies, especially constitutional democracies, are supposed to limit the degree to which a people can be governed contrary to their will. If what you want is unqualified governability, the ideal form of government is a police state.
 

As I interpret Prof. Levinson's question, he's not asking if America can be governed contrary to the will of the people, he's asking if America's government can actually effectuate the will of the majority.
 

No, I don't recall the Prof complaining about the failure of Congress to accomplish a balanced budget or term limits amendment, or to secure the borders against illegal immigration. All subjects where the government has, conspicuously, failed to effectuate a sustained and significant majority will.

Mostly he seems to be concerned about the failure of the government to accomplish things which conspicuously are NOT the subject of a sustained majority will. Gun control, for instance.

But the point I was making is that you really have to identify what you're trying to accomplish, and how it compares to public opinion, before you can declare the nation "ungovernable". In some respects, to be ungovernable is the essence of being free.
 

Brett's second comment, that includes this:

"In some respects, to be ungovernable is the essence of being free."

raises the question of "in what respects?" with the current situation that Sandy is addressing, not when there were a handful of persons, in isolation in the expanse of what is now America. Is this a libertarian response or just another inane observation from Brett? Is this the essence that Brett feels is being free? Is this anarchy?

Going back to Brett's earlier comment:

"If what you want is unqualified governability, the ideal form of government is a police state."

this also demonstrates Brett's inanity. Is Sandy's post focused on "unqualified governability," whatever that means?

Apparently Brett doesn't like Sandy's question. Perhaps Brett should spell out his own question. Brett further demonstrates that he is indeed a one issue person: the Second Amendment Uber Alles.
 

Unless he specifies what kind of ungovernable troubles him, yeah, I have to assume it's a general complaint.

Sandy is free to clarify what aspects of being ungovernable do and do not trouble him. In fact, I'd like him to be specific.
 

Is America Governable?

It would help if our (self-appointed) enlightened spent less time talking among themselves and more time engaged in real politics. Most of those who publish useless variants of political philosophy would serve the republic better teaching high school civics. Sandy Levinson is a moralist as literary critic.
Literary criticism's not enough.

More than a better constitution we need a better people. Tamanaha wouldn't be so blunt, but I don't think he'd disagree, and I'd like to think Graber would be left trying to hide a smile.

 

A diverse continental country, America has always been borderline ungovernable, which is why our prior laissez faire, federalist system worked so well for so long. If the government is limiting itself to generally accepted functions, you get very little gridlock.

Our problem is not with our democratic system, but rather that the modern progressive welfare and regulatory states act outside of democratic accountability and are unsustainable.

While the "fiscal cliff" game of chicken is dominating the news, the welfare state is en route to sovereign insolvency by decade's end and the regulatory state is hamstringing an economy in economic depression.
 

"More than a better constitution we need a better people."

Somewhat, yes. More, we need a better political class. Ours has managed to game the system to the point where they're a self-perpetuating elite, growing more and more disconnected from the general populace. Democracy can't work when essentially all the available candidates disagree with the public on major issues.

That's long been my point of disagreement with Sandy: He's always blaming on the Constitution a problem which is due to the people charged with implementing it. Our government managed to work at one time, with the exact same Constitution, it's the people not the text.
 

Our yodeler's:

" ... which is why our prior laissez faire, federalist system worked so well for so long."

is a repetition in a comment of his on another thread at this Blog. [I'll look through the archives for it.] He was challenged as to the time, datelines, of that prior laissez faire, federalist system that he claims worked so well. It seems, according to our yodeler, that all this was before he was born (or reached the age of reason, which may yet be questionable). Oh for the good old days of Plessy, the Gilded Age and its successor the Lochner Era. Of course, during his lifetime, our yodeler was in awe of the Bush/Cheney 8 years that ended with the 2008 Great Recession. As a historian, as well as an economist, our yodeler is dwelling in the past with bad history and bad economics.
 

"America has always been borderline ungovernable, which is why our prior laissez faire, federalist system worked so well for so long. If the government is limiting itself to generally accepted functions, you get very little gridlock"

What do you mean it "worked so well?" During that laissez-faire period the nation nearly tore itself apart...
 

Mr. W:

During the laissez faire period of the first century and a half of our history, the United States rose from a sparsely populated backwater to a world power.

Our Civil War was over slavery, quite the antithesis of laissez faire.

Shag:

Plessy was a perfect example of the Progressive living Constitution in action and had nothing to do with laissez faire.

The so called Lochner era is largely a myth and a convenient strawman for Progressives to advance their agenda of erasing the Constitution's checks and balances. Go read Rehabilitating Lochner.

Finally, the Bushes represent the Progressive wing of the GOP and are the anti-thesis of laissez faire, with predictably bad consequences.

Bad history and bad economics, indeed.
 

"Plessy was a perfect example of the Progressive living Constitution in action and had nothing to do with laissez faire."

That's an odd view considering there was no judge on the bench in that decision which could be described as a Progressive (save perhaps Harlan, the lone dissenter) and that the counter-view overruling it came from a court and opinion widely agreed on as a Progressive and 'Living Constitutional' one.

"During the laissez faire period of the first century and a half of our history, the United States rose from a sparsely populated backwater to a world power.

Our Civil War was over slavery, quite the antithesis of laissez faire"

It's interesting you don't see the contradiction and irony in those two sentences being that close together...During your vaunted 'laissez faire period of the first century and a half of our history' the government sanctioned and actively supported ACTUAL human slavery (as opposed to 'I have to participate in social security but don't want to and can't contract for labor below the minimum wage' 'slavery!' So our slave period becomes for you our lauded 'laissez faire period.'

Wow.
 

Note that our yodeler fails to provide even approximate dates, timeframes, for his:

" ..... which is why our prior laissez faire, federalist system worked so well for so long."

that he seems so fond of. Let's see how his knowledge of history compares with actual history.

Note that our yodeler beats around the Bushes. Perhaps some youngsters with Internet savvy in his own idyllic mountain community might search the archives of this Blog during the Bush/Cheney 8 years to see for themselves how our yodeler was jointed at the hip (to put it kindly) with Bush/Cheney until the very end, the time when the rats abandon ship.
 

BD: "Plessy was a perfect example of the Progressive living Constitution in action and had nothing to do with laissez faire."

Mr. W: That's an odd view considering there was no judge on the bench in that decision which could be described as a Progressive...


The Progressive living constitution theory is that the courts should rewrite the Constitution to conform with social changes. Plessy was a rewrite of the EPC for a racist era.

BTW, the Progressive movement was riddled with racists such as Woodrow Wilson. They were perfectly comfortable with Plessy.

BD: "During the laissez faire period of the first century and a half of our history, the United States rose from a sparsely populated backwater to a world power...Our Civil War was over slavery, quite the antithesis of laissez faire"

Mr. W: It's interesting you don't see the contradiction and irony in those two sentences being that close together...During your vaunted 'laissez faire period of the first century and a half of our history' the government sanctioned and actively supported ACTUAL human slavery...


Point taken. Laissez faire did not extend to slaves and thus we did not enjoy a complete laissez faire political economy so long as the law allowed slavery.
 

Shag:

The laissez faire period extended from the founding though the 19th Century and then gave way to Progressivism over the first two decades of the 20th Century.

Like most political economies. laissez faire ebbed and flowed during this period, with corrupt internal improvements period prior to Jackson and the Civil War being obvious ebbs.
 

So our yodeler identifies the period from the founding through the 19th century as the good years he referred to with his:

" ..... which is why our prior laissez faire, federalist system worked so well for so long."

So it's been downhill since then. What about the 20th Century as the "American Century"? Our yodeler did not exist in those good years. Perhaps some of the children with computer skills in his idyllic mountain community who have a better sense of history are laughing out loud. Consider the events of those good years in which slavery occupied more than half of the time and during its entirely women did not have the vote. Those were the good years for our yodeler. Too bad we don't have a time machine to send him back to see how really, really good they were. If those were the good years, imagine how miserable our yodeler's life has been in the latter half of the 20th Century to the present. Perhaps he wants to restore laissez-faire with guns, guns, guns. What a Maroon!
 

"The Progressive living constitution theory is that the courts should rewrite the Constitution to conform with social changes. Plessy was a rewrite of the EPC for a racist era"

Well, for one thing, this demonstrates that this living constitution theory is not the sole province of progressives, because there was nary a Progressive on that court. But more fundamentally, the opposite is true about Plessy: the 14th Amendment was debated and passed in a Congress where the public seating sections were segregated. It was the Brown court which recast the EPC via Living Constitutionalist lines, as the conservative (and liberal) critics of that opinion have often noted.

"the Progressive movement was riddled with racists such as Woodrow Wilson"

This was true for nearly every movement at the time; note again that the Court in Plessy had no progressives on it but was full of old style laissez-faire styled conservatives.

"we did not enjoy a complete laissez faire political economy so long as the law allowed slavery"

Indeed, it is hard to call a society in which 10-20% of its citizens were subject to chattel slavery 'laisez-faire' (note to the rather intrusive and byzantine slave codes that existed side by side the institution, again, hardly 'hands off government' there). Let's also remember laws that forbade or prevented women from exercising basic economic and political rights, or the restrictions on the Chinese, and those on homosexuality...
 

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Well, for one thing, this demonstrates that this living constitution theory is not the sole province of progressives, because there was nary a Progressive on that court. But more fundamentally, the opposite is true about Plessy: the 14th Amendment was debated and passed in a Congress where the public seating sections were segregated.LOL排位赛代练 cheap lol boosting  Cheap Fifa 15 Coins  Elo boost

 

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