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Wednesday, February 23, 2005
Consensus And Constitutional Order, Part Eight: Conceptual And Nomenclatural Needs
Yesterday, John Hawkins of Right Wing News posted a half-news, half-opinion item based on Ryan Sager's comments about the recently concluded Conservative Political Action Conference. Sager was displeased at the relatively low percentage of libertarian ideas emanating "from the stage." He was equally displeased that certain conservative ideas, such as opposition to open borders and same-sex marriage, were so widely put about and so well received. His summation:
To be fair, libertarian -- or classical liberal -- principles were not without representation. The Libertarian Party (ugh…) had a booth. The ACLU had a booth. The wonderful folks over at Bureaucrash had a booth.But precious little libertarianism came from the stage, and what little did was seldom well received.
Now, perhaps CPAC just isn't any place for libertarians. But that, in itself, is a problem. The conservative movement should be reaching out to people who, well, just aren't as bothered by "Will & Grace" as some other people are.
Conservatism can't survive by religious extremism and tax cuts alone.
Hawkins reproves Sager gently in what follows:
Before I address what Sager said, let me say that I do not dislike Libertarians, write them off as kooks, etc, etc. However, I am a conservative, not a Libertarian, which means that I, like the overwhelming majority of Americans, don't see to eye with Libertarians on a lot of issues.Two of those issues are gay marriage and illegal-immigration. The reality is that a large majority of Americans and most of the Republican base is staunchly opposed to gay marriage and illegal-immigration. Sager can (and did) complain about that, but it's Libertarians, not Republicans that are on the wrong side of public opinion on those issues. So there's not going to be a shift on those issues that makes Libertarians happy.
Furthermore, there are very practical reasons why Republicans tend to cater to social conservatives instead of Libertarians. First and foremost being that social conservatives probably outnumber Libertarians...oh, I don't know...20 to 1? So who should Republicans be trying to please: the large group of people who've been proven to vote conservative or a much, much, smaller group of Libertarians who are the political equivalent of the Greens, a group of radicals who are always fickle when election time rolls around because the Party ideologically closest to them can't ever be extreme enough to please them? It's no contest.
There's truth on both sides of this divide, but neither Sager's mindset nor Hawkins's is poised to accept it. More, their mindsets are representative of the assumptions and orientations that characterize the communities in whose names they speak.
Sager's libertarianism appears to be of the doctrinaire variety. That is, it's not constitutionalism, but rather a natural-rights-based classical liberalism, which demands that State be confined to reactive operations in defense of the lives, liberty and property of its citizens. Hawkins's conservatism appears to be of the reflexive variety, that approves what it approves and condemns what it condemns from emotional and populist sources -- sympathies and revulsions -- rather than from principles or Constitutional foundations. Between them, these writers have acted out the conservative-libertarian schism before our eyes.
Your Curmudgeon has been straddling this divide for some years now. It can be an uncomfortable posture. But that's to the side. The questions of importance are these:
- Why do libertarians think they can make headway on the basis of pure ideology alone, and why do they grant so little shrift to those who fail to share their premises?
- How is it that conservatives could have failed to remember what they set out to conserve -- the maximum possible degree of individual freedom consistent with a constitutional order -- and how can they be brought back to that core ideal?
Hawkins and your Curmudgeon share certain opinions with which Sager disagrees; specifically, we're against same-sex marriage and open-borders immigration policy. Yet your Curmudgeon will accept the label "libertarian," if properly qualified, while Hawkins disavows it. So the label obviously has some fuzz on it. But then, so does "conservative," a description adopted by persons who disagree on just about everything.
It would appear that these labels have become impediments to our discourse. Perhaps the severity of those impediments has risen high enough that we can finally contemplate a new nomenclature.
In a constitutional republic such as ours, the sigils of legitimacy in legislation and other governmental acts are the documents that authorize their existence and specify their delegated powers: federal and state constitutions, county and city charters, and so forth. These were once understood to be "people's documents": the authority they conveyed originated with the people, and could be expanded or contracted at the people's discretion. Merely by writing such documents, the Founders, including all the lesser and generally unremembered men who wrote America's state constitutions, city and county charters, et cetera, implied a great central principle for American government at all levels:
The relevant processes, their scope, and their constraints are defined in the chartering documents mentioned above. That's why officeholders are sworn to preserve, protect, and defend those documents and the system of government based upon them.
One who accepts that principle as the final determinant of legitimacy -- not of "right and wrong," an endlessly debatable subject -- is neither a conservative (as commonly understood) nor a libertarian (as commonly understood). He's a constitutionalist. That is, he looks to the Constitution and our lesser charter documents as the authoritative statements upon what American governments may and may not do, and how they must proceed no matter what they do.
A "conservative" who rejects that principle isn't really a conservative; how could he be, when he seeks to nullify the charter agreements that define our social contracts? A "libertarian" who rejects the principle is an anarchist.
The federal Constitution was written to confine government within narrow limits, and to make it hard to expand those limits. Originally, the state constitutions were written with the same end in view, though they've undergone a tragic deterioration over the past century. Thus, constitutionalism serves many, if not most, of the ends shared by most American conservatives and libertarians. But there are lumps in the oatmeal in both camps' bowls.
Conservatives harbor a general, and generally justified, revulsion at the use of powerful intoxicants -- broadly speaking, illegal recreational drugs. Therefore, they tend to support the Drug War in all its manifestations, despite its record of abysmal failure and horrific costs in blood, treasure, and lost liberties. But let the price/performance question sit to the side for now, and ask rather: was the power exercised daily in the Drug War authorized by the Constitution of these United States?
Clearly it was not. If the Eighteenth Amendment was required to prohibit the marketing of alcoholic beverages, then an amendment was surely necessary before the federal government could undertake the Drug War -- but none was passed. Washington didn't hew to the prescribed procedure for expanding its authority; it merely seized the authority, under a presumption of popular consent, and bulled ahead.
Few things anger libertarians more than the federal income tax. Not only is it a non-proportional exaction that goes by "ability to pay" rather than by any equitable principle, it also involves the massive invasion of citizens' privacy, via the requirement that they furnish information about themselves and their finances to the Internal Revenue Service. Your Curmudgeon agrees that this is a "service" he and the country can and should do without. But is the power exercised here a legitimate one?
Clearly it is. The Sixteenth Amendment gave Congress the power to tax incomes without constraint by any consideration. That Amendment was ratified in accordance with the Constitutionally prescribed procedure. Few foresaw its ultimate consequences, and many would like to see it repealed, but it cannot be denied that the power is legitimate, having been granted to Congress in accordance with the applicable procedures in the applicable charter. Only an anarchist could argue otherwise.
So there's incoherence on both sides of the divide. One side, dominated by its revulsions, cannot bring itself to admit that in prosecuting those revulsions Washington has many times failed to touch first base. The other side, consumed by its ideology, cannot bring itself to admit that many of the things it reviles about American government were nevertheless put into effect entirely in accordance with our fundamental agreements as expressed in our charter documents. Neither will confront the void at its doctrinal core.
The constitutionalist has problems of his own. For instance, the Supreme Court has ratified certain plainly anti-constitutional governmental acts. The language of the charter document is quite plain; "Congress shall make no law abridging" and "The right of the people shall not be infringed" are incapable of misinterpretation. Yet judges have all too often invoked all manner of phantasms to justify departing from those strictures, the most odious of which is "compelling government interest." Given that these decisions, however vile, have all followed the prescribed procedures, they have the patina of legitimacy...until one reads the plain words of the Constitution itself.
Problems abound. Yet reliance on constitutional sources produces the fewest of them, and suggests methods for dealing with the ones it has. In contrast, conservatives and libertarians tend to be stuck in ruts in their discourse; all too often their only defense of their positions is "because I say so."
Robert M. Pirsig, in his book Zen And The Art Of Motorcycle Maintenance, described "stuckness" -- the inability to see any way out of or around one's current difficulty -- as a fertile state from which innovation was sure to spring. Perhaps our current political "stuckness," in which a thin national majority holds allegiance to a nebulous conservatism that stutters, starts and stalls in practice while a tiny minority screams with some justification that there are serious mistakes to be undone, will finally yield to the revival of the constitutional premise. At any rate, no other escape hatch from our current impasse is in sight.
Progress in any field requires a clearly envisioned goal and a coherent approach to it. For anyone other than a theocrat or an anarchist, coherence in political discourse requires strict adherence to constitutionalism. All else is whim.
Comments
I often wonder if there will ever be a satisfactory resolution to this problem. While an ultimate idealogical goal is desireable, reality demands a degree of pragmatism.
In my humble view, infiltrating the Republican party with sensible “classical liberal” ideas would bear more fruit than expecting “traditional moralists” to see the error of their thinking.
While “radical minarchist” is an appelation I would proudly accept, my fellow red-staters would likely bristle at any such proposition.
Posted by on 02/23/2005 at 03:32 PMMr. Porretto,
I consider myself neither a theocrat nor an anarchist, yet I do not believe that processes alone determine legitimacy. If the Constitution were amended to remove the first ten Amendments, I would no longer recognize the legitmacy of the United States Government. Most likely, I would take up arms against it. It matters not to me whether or not the changes were made in due accord with the structures provided for in the Constitution for change. The resulting document, though heir to the original, would embody such radically different political principles that I would no longer feel bound by it.
The Founders had this same dilemma when their King, in some sense rightful, chose to extend his grasp to an intolerable extent. They decided that the Crown no longer had a legitimate hold over the people of the North American colonies, regardless of the fact that the sovereign George III was operating well within his constitutional rights. So they fought a war to free this nation and enshrine a new constitution. Do you argue that the men of the founding generation were all theocrats or anarchists by necessity? Such a position seems out of step with the historical record.
Posted by on 02/23/2005 at 04:46 PMAt this point in history, I despair of ever wrenching the GOP away from the wannabe-theocrats in its midst. My main hope for the future lies in the possibility of an internal fissure after the Democrats implode. The only open question is just how many people presently voting Republican are, at their core, libertarians (or constitutionalists, if you prefer...I don’t object to the renaming if it’ll help good ideas get practical support).
If anything, the growth of the conservative electorate seems to have worked against us in this trend. Yes, it’s brought the Democrats to the point of desperation and close to the point of self-destruction...but one is forced to remember that Reagan felt the need to sincerely reach out politically to his more liberty-loving potential constituents. Bush doesn’t seem to feel that need. Perhaps that’s because he’s genuinely less like us than Reagan was...or perhaps he simply knows that he can win elections without making us happy.
Posted by Matt on 02/24/2005 at 02:47 AMMatt,
I think that the reason the GOP doesn’t court libertarians as strongly as they used to is twofold. First off, we lose elections. I know that a lot of us like to claim that there is a vast libertarian center out there, but it’s true. In the early ‘80s and then again after Clinton’s first two years it looked like the forces of socialism were going to destroy the country. So the electorate was more than usually susceptible to the message and the GOP won handily on libertarian-friendly platforms. But we did not have the political muscle to carry the day in the fights over which popular programs ought to be cut or eliminated. So our guys either got beat in the subsequent elections or toned down the libertarianism in favor of social conservatism or foreign policy hawkishness. And secondly, we’re disloyal. I mean, listen to us. Not very many of the Religious Right are hoping for a Democratic collapse in order to vote for the successor. They’re either energized to vote GOP or they stay home. That and they provide a lot of the grassroots muscle to the Party organization while we waste at least half our strength in maintaining a competing LP.
But despite that the GOP keeps coming through for us more than we deserve. Looking ahead, Bush clearly wants to run with Social Security and tax reform. The only good reasons to push these now are ideological: to push the economic front hard while the Right is powerful in Congress. Reagan, as best as I can tell, never went after FDR’s legacy. He contented himself with reversing LBJ and the ‘70s. Looking back, on the other hand, we’ve gotten some deregulation, four straight tax cuts (in wartime!), some good pro-property rights judges, and some good civil-service reform. That’s not bad considering that domestic policy has taken a backseat to foreign affairs these past four years.
I guess what I’m trying to say is that we ought to focus on spreading the word and creating a more potent political network of libertarians so that we have power to lend our allies in Washington and in the statehouses. Then, maybe, we’ll be an asset to the cause in more practical ways than providing the occasionally useful political theory.
Posted by on 02/24/2005 at 03:58 AMFran;
I may be misinformed, but I was under the impression that the only extension to Congressional power granted by the XVI Amendment was that income taxes might be levied without regard to apportionment.
The Amendment does not repeal or otherwise modify any other provisions of the Constitutional limits on Congress’ taxing authority. All it does is place income taxes squarely within the limits of a particular type of tax.
As such, (since there are two kinds of taxes defined in the Articles), if it ain’t an indirect tax (subject to apportionment among the states according to census), it’s a direct tax and thus subject to the rule of uniformity.
Right. Uniformity. What’s YOUR tax bracket?
If the IRC isn’t technically a bill of attainder, it sure passes the stink test to be one in fact, if not in law. (I suspect the only reason it skates is that it doesn’t name specific individuals to be taxed.)
But uniform? I laugh up my sleeve at the very notion.
And, as such—all case law to the contrary notwithstanding—the IRC as it is administered is unconstitutional.
Not to mention abridgement—or outright annulment—of fourth and fifth amendment rights and the principle of innocent until proven guilty.
I wonder if it was prescience that made the founders excoriate income taxes, or just a vague foreboding.
M
Posted by Mark Alger on 02/24/2005 at 09:59 AMWage taxes, Mark, wage taxes. Income was always taxable.
Posted by Connie on 02/24/2005 at 10:08 AM
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