Category Archives: Representative Majoritarianism

Why Don’t We Care About Stormy Daniels?

According to a recent poll, 73% of voters do not believe President Trump’s alleged affair with pornographic actress Stormy Daniels is an important news story.  I agree.  And that saddens me.  We once had the luxury of concerning ourselves with the personal character of candidates for elected office.  Unfortunately, those days are gone.

When government was small and its powers constitutionally limited, it’s capacity to influence the individual lives of its citizens was marginal compared to today.  Because the government could only do so much, it made sense to seek people of high character for public office.  It’s nice to be proud of elected officials.  It’s good when our children can look up to them as role models.

With the systematic and incremental deconstruction of the Constitution’s limits on government power came bigger government.  That government now inserts itself into our everyday lives to a degree never imagined at our country’s founding.  The halls of government have been thrown wide open to influence peddling, special interests, patronage, protectionism, and innumerable coercions and restraints over the citizenry.

Where the Constitution provided limited government with enumerated powers coupled with textual and structural protections of individual liberty, the deconstruction of the Constitution has resulted in comparatively limitless government and a subjugation of the citizenry to the will of the majority as expressed through our elected representatives.  Where we once enjoyed the constitutional republic the founding generation gave us, we now suffer the representative majoritarianism which has resulted from the incremental diminishment of the Constitution’s limits on government power as well as those structural and textual protections of liberty.

Because representative majoritarianism has resulted in a government that has an expansive capacity to exert influence over our lives and seems determined to do so with reckless abandon, it is no longer prudent to place much importance on the personal character of elected officials.  Given a choice between a loud mouthed lout with a long and open history of philandering who is a stalwart constitutionalist and a highly trustworthy, intelligent, competent, family oriented, church goer who is seeking office in order to mold society through his or her legislative efforts, I’ll take the lout every time.

This isn’t to suggest that Trump is a stalwart constitutionalist by any means.  But the principle applies – because of the myriad permutations of what might be imposed by the government under a system of representative majoritarianism implemented as a result of the hollowing out of our Constitution, a voter’s concern over a candidate’s character is dwarfed by the concern over what a candidate will do once in office to affect the voter’s life.  Accordingly, our perception of a candidate’s character is now only important to the extent that perception relates to our evaluation of how he or she will govern.  Promiscuity and infidelity have little if any bearing on the decisions an elected official will make.  As a result, it’s natural that the public would not find instances of promiscuity or infidelity to be particularly important.

The fact that we can no longer afford the luxury of concerning ourselves with a candidate’s character is just another in a long line of sad outcomes which necessarily result when a society opts for statism and collectivism over liberty and individualism.

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The Teacher Pay Debate In W. Va.

West Virginia is currently in the throes of a teacher pay debate.  The teachers want raises and a cap on their exposure to increasing health insurance premiums.  Much of the debate has centered around the insufficiency of past pay increases, the comparative pay of teachers in surrounding states, and the effective diminution of their disposable income if it is subjected to market based health insurance increases.  The debate misses the larger problem with the manner in which teachers’ salaries and benefits are determined in West Virginia.

We’ve unnecessarily eliminated all free market pricing mechanisms from the process of setting teachers’ salaries and benefits. The free market would set the price of teacher labor by virtue of what actual consumers would be willing to pay for a particular teacher’s services and benefits. That function of the market having long ago been eliminated, there is no way to determine the ‘correct’ price for an individual teacher’s services.  Instead, it’s left to political (rather than market) processes, where price is determined by the political pull of teachers’ unions weighted against representatives’ mandate to balance the budget while (as always) operating under the perpetual influence of the next election.

Good teachers would undoubtedly benefit immensely from a system that determined teacher pay based upon free market mechanisms rather the ‘one size fits all’ deals cut by unions on behalf of all public educators.  Teachers unions will never support free market initiatives because they 1) necessarily result in higher pay for more effective teachers and therefore, 2) create a class of teachers who perceive themselves to be unfairly treated and thus not adequately served by the unions and thus, 3) erode the unions’ power and influence.

This political issue over teacher salaries and benefits is a good context in which to see this inefficient paradigm at work first hand.   Elected representatives are trying to cope with a budget that must be balanced and an electorate that is clamoring to be heard from both sides of the issue – but particularly from the side advancing the cause of teacher pay raises and increased benefits packages.  Why particularly the teachers?  Because they have the political pull, a perceived vested interest, and the most to gain from winning the issue.

On one hand there is a self-interested political power base in the teachers’ who, for the most part, individually had nothing to do with creating or maintaining this system, but have operated within its paradigm their entire careers.  They’re organized and they want what they want.  They perceive that they wear the white hat in this political battle and they’ve taken that mantle for themselves in the press and in the public statements made by their union leaders and by many political officials who either truly agree with them or are willing to patronize them in hopes of gaining their political support in the future.

On the other hand there is everyone else – the mass of citizen tax payers who have varying experiences with their respective employers and health insurance. No doubt, many have long suffered the experience of seeing their disposable income reduced annually by increasing annual health insurance premiums. As a result, this group is naturally somewhat unmoved by teacher complaints that their disposable income may now suffer because of their own health insurance premiums increasing.  Many who are not employed in government jobs have been laboring under that harsh reality for years.  But as a group, they are not sufficiently organized to take a strong position in opposition to unions who are demanding benefits for members which non-government employees cannot get in the private sector.  The individual benefit or detriment regular citizens will realize from whatever pay scheme the system ultimately puts in place is difficult, if not impossible, to quantify.  Their perceived individual interest in the outcome of the issue pales in comparison to that of the teachers.

Everything about this problem ultimately lies in the fact that that there is no market based pricing mechanism for teacher pay and benefits in West Virginia.  As a result, the teacher faction makes appeals as to what the universe of all teachers in West Virginia “deserve”.  If free market mechanisms were employed we would see that some teachers deserve a raise and some don’t.  And some deserve a bigger raise than others.  Rather than implementing market mechanisms to determine what individual teachers actually deserve, the entire question gets dumped into the arena of representative majoritarianism – can a political faction persuade or threaten a sufficient number of elected representatives to their side of the issue to get what they want as a collective group from the public fisc.  That is no way to set the price of labor in a free society, regardless of how much flexibility West Virginia has, or doesn’t have, in the budget.

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The Constitution Cannot Be Restored At The Ballot Box

When it comes to an Article V convention of states to propose amendments to the Constitution, there is no shortage of opinions.  Mark Levin’s The Liberty Amendments and the existence of serious and well organized efforts to achieve an Article V convention such as Compact For America and Convention of States have induced public debate for many months.  More recently, Texas Governor Greg Abbott came out with his own plan for an Article V convention.

Some who might otherwise sympathize with the government limiting objectives of these efforts criticize the idea due to concerns over a ‘runaway convention’.  They argue that there is no effective way to limit the convention to specific topics and they fear that a convention might propose radical and dangerous amendments.  Such arguments ignore the Compact For America approach which leverages consensus among the paritipating states to build in safeguards at every stage in order to prevent the convention from so much as discussing an amendment outside of the specific text of a pre-drafted amendment.  More obviously, they ignore the requirement that three fourths of the states must ratify any amendment such a convention might propose before it could take legal effect.  The likelihood that 38 states would ratify a radical and dangerous amendment is remote in the extreme.

But the most dangerous perspective often advanced by these Article V naysayers is found in their explanation of what should be done to reinstitute constitutionally limited government.  A recent article by Mark Pulliam, a contributing editor of Law and Liberty, typifies this fatalistic thinking with respect to the viability of the Constitution as the definitive statement on the limits of government power.  After making the usual arguments regarding the supposed dangers of a ‘runaway convention’, Mr. Pullium offers the following as the proper way to re-establish constitutional fidelity:

(T)he ultimate solution to our current dilemma lies in the election of a conservative President and a principled U.S. Senate, who would appoint and confirm a majority of sound, committed originalists to the U.S. Supreme Court. We don’t need to amend the Constitution. We need to enforce it. Our nation has been led astray by feckless legislators and progressive jurists who for generations have failed to follow the Constitution that was ratified in 1789. It is time for voters to restore the Constitution, at the ballot box, by insisting on constitutionalists–elected officials who will respect the Constitution and the rule of law. (emphasis added)

Unfortunately, this attitude is not uncommon among those who desire a return to constitutional fidelity. It’s danger exists in the fact that it necessarily implies that the Constitution is not only already a dead letter as the supreme word on the limits of the federal government’s authority, but that we should not attempt to rejuvenate it – rather, we should rely on the electorate as the ultimate check on federal power.

The Constitution was drafted and ratified as the definitive articulation of a sovereign people’s creation of, and delegation of power to, their new government.  The very specific point of the Constitution was to preserve individual rights and limit the federal government so that it could not interfere with those rights or with the sovereignty of the states.  The founders believed that majoritariansim was to be avoided because individual rights would be non-existent if exposed to the whims of electoral politics – rights subject to the will of the majority are reduced to mere privileges.  As a result, the founders made the expansion of the government’s powers “off limits” to normal electoral politics.  No mere majority could infringe on the unalienable rights of others by voting the government more power.  The idea was to limit the government’s powers subject only to expansion, or reduction, by amendment pursuant to Article V.

The great and terrible victory of the progressive movement was to circumvent Article V and achieve vastly expanded federal power by judicial fiat.  ‘Living constitution’ theory permitted judges to amend the Constitution from its original meaning by reinterpreting it so as to expand federal power based on society’s perceived ‘needs’ as determined by judges and the politicians who appointed them.  This extra-legal revision of the Constitution by ‘interpretation’ fundamentally transformed the nature of the Constitution from a permanent charter of individual liberty chiseled in granite to a hunk of soft clay subject to easy manipulation.  As federal power has expanded, our ability to effectively limit it has been shifting from the Constitution to the ballot box.  Where we once could simply appeal to the Constitution itself to negate any attempted expansion of federal power, we’re now too often forced to the ballot box where, if sufficient numbers exist, we might induce the government not to exercise power (as opposed to establishing that the power does not exist at all)Accordingly, we now often find ourselves in a situation the Constitution was specifically designed to avoid – appealing to the sympathies of voters as our last line of defense in restraining governmental power.

Thus, the notion that we could “restore the Constitution, at the ballot box, by insisting on constitutionalists–elected officials who will respect the Constitution and the rule of law” is a fallacy.  Just as an addict cannot be rehabilitated by overdosing, the Constitution cannot be “restored” at the ballot box.  Subjecting the Constitution’s limits on government power to the ballot box is the problem; it cannot be the answer.  We must return the Constitution to its status as the definitive statement on the limits of government power.  When the government is once again effectively constrained by the Constitution without reliance on electoral politics, we will again have our real Constitution and the constitutional republic envisioned by our founders.  We should defy all efforts to continue our metamorphosis into a majoritarian republic where the people might once in a while (and temporarily) be convinced to return to first principles.  ‘Restoring the Constitution at the ballot box’ is a contradiction in terms.  Pretending otherwise serves only to invite further erosion in public respect for the Constitution as the definitive word on federal authority and to usher in the representative majoritarianism which naturally follows.

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Clarifying Mussolini

After World War I signaled the end of government by aristocracy in Europe, a lot of debate ensued regarding alternatives to replace them.  As autocratic dynasties were relegated to history, the next generation of leaders and academics argued the question of how nations should be governed in a post-aristocratic era.

In 1932, Benito Mussolini wrote about fascism, seeking to distinguish it favorably from other systems, including democratically structured governments.  In doing so, he conflated democracy and classical liberalism.  He wrote:  “Fascism combats the whole complex system of democratic ideology, and repudiates it, whether in its theoretical premises or in its practical application. Fascism denies that the majority, by the simple fact that it is a majority, can direct human society; it denies that numbers alone can govern by means of a periodical consultation  Fascism has taken up an attitude of complete opposition to the doctrines of (classical) liberalism born in the political field and the field of economics…”

Mussolini’s initial comments are accurate—pure democracy or ‘majority rule’ cannot effectively “direct human society”.  But he later seemingly equates democracy with classical liberalism by using the terms more or less interchangeably.  In truth, classical liberalism is the antithesis of majority rule.  Classical liberalism is a moral and social philosophy standing for strictly limited government.  Government authority should be limited to the protection of individual rights, ensuring security from outside and internal threats, and administering civil and criminal justice.

America was founded on classical liberal first principles and the governmental system the founders thought best to safeguard these principles was a constitutional republic—a representative government which, though it would operate on democratic principles, would be constrained by the Constitution’s strict limits on government power.  The reason America was not a country where the majority attempted to “direct human society” was because the government was so effectively limited.  Only when the Constitution has been disregarded, has American government slid ever closer toward the conditions Mussolini describes—a democratically instituted government attempting to direct all of society.

Mussolini also made a prediction which proved sadly accurate, but not in the way he anticipated.  “(F)or if the nineteenth century was a century of individualism (liberalism always signifying individualism) it may be expected that this will be the century of collectivism, and hence the century of the state…”  We now know that Mussolini’s particular brand of fascism failed upon defeat in World War II.  But communism and socialism gained an ever larger foothold through much of the 20th century and fascist principles are often employed by governments without regard to the manner in which leaders are selected or otherwise established in office. Further, the American government slowly but consistently metamorphosized from a constitutionally constrained republic founded on the principles of classic liberalism to representative majoritarianism as the Constitution’s constraints on the government’s power were systematically diminished over time.  This didn’t happen because it was inevitable, or because classical liberalism doesn’t work.  It happened because we permitted the Constitution to be too much and too often disregarded, rendering it weaker and less effective as a constraint on government.

Viewed from the turn of the millennium and beyond, the 20th century proved to be “the century of the state” as Mussolini predicted, not through the despotism he expected, but at the hands of democratic governments with powers too broad to allow classical liberal principles to thrive.  Liberty and statism are inversely correlated.  One only expands by displacing the other.  At the turn of the 20th century, America was a stalwart of classical liberalism.  As a result of the diminishment of our Constitution throughout remainder of the century after Mussolini’s comments, America devolved into an ever more statist country.  Though it is now perhaps one of the last fields upon which the battle for strictly limited government and unalienable individual rights is still waged, that battle is now mostly confined to the arena of ideas.  Our political reality is that nearly all of our elected representatives now embrace the use of unconstitutional power and expansive state authority far beyond what our first principles contemplate or our real Constitution authorizes.

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Our “Dying” Constitution

Our country’s founders created and ratified a Constitution to limit the powers of the new central government, institute structural defenses to individual liberty and solidify the popular sovereignty of the people.  Because their experiment in representative government was new, they were rightfully concerned that, without proper protections in place, the new republic might be hijacked by a despotic force.  But dictatorial despotism was not their only concern.  They recognized that the republic could slip into a form of majoritarianism in the event the Constitution didn’t provide express and structural defenses of individual liberty.  As James Madison stated in Federalist No. 51, “It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.  Different interests necessarily exist in different classes of citizens.  If a majority be united by a common interest, the rights of the minority will be insecure.”  John Adams was more direct, “…despotism, or unlimited sovereignty, or absolute power is the same in a majority of a popular assembly, an aristocratical counsel, an oligarchical junto and a single emperor.  Equally arbitrary cruel bloody and in every respect diabolical.”

For the first 150 years of our country’s existence, Americans generally honored and respected the Constitution, maintaining every expectation that it would perform its primary function of limiting the Federal government’s powers and guarding against tyranny from any source.  In the 1930’s, progressive politicians decided that additional, extra-constitutional powers were “necessary”,  and they argued for a broader interpretation of the Constitution under the theory of the Constitution as a “living” document which must be “interpreted” to change with the needs of society.  Of course, what was “needed” was more power for the Federal government, less power for the states and less liberty for the people.

These progressive politicians disregarded the two legal methods of changing the Constitution provided in Article V because those methods were too “difficult” and time consuming.  Instrumental to those methods is the popular sovereignty of the American people; not so with the “living” constitution.  Unfortunately, The Great Depression rendered much of the public open to the idea of a Federal government with expanded powers.  This openness ultimately resulted in a misperceived “mandate” in FDR and the progressive Congressmen who supported him.  Ultimately, the Supreme Court capitulated and adopted an interpretive as opposed to literal reading of the Constitution in order to enable the expanded authority the progressive politicians and the public seemed to demand.  Thus, the “living” constitution was born.

Likely lost upon the American people who then leant their political support to such a scheme were the long term ramifications of this “living” constitution.   Where the “real” Constitution’s literal meaning instituted liberty and expressly limited government authority, the “living” constitution, by design, weakened those edifices.  The very purpose of the “living” constitution was to eliminate the real Constitution’s barriers to government power.  It is doubtful that they understood the implications of their desire for a more powerful government without employing Article V to specify and limit those additional powers.  Those who supported the scheme were in effect saying, “Supreme Court, we want you to read the Constitution so as to give our elected representatives more power over us.  We’re willing to trade the Constitution’s iron clad protections of our sovereignty and our liberty for the perceived security of knowing that our elected representatives can do more to solve our problems.  We trust them and need them to have the authority to act and we trust you to figure out how to reinterpret the Constitution to achieve these additional powers.  There’s no need for a formal amendment specifying what these new powers are to be.”  This interpretive approach to determining constitutional issues contemplated by the “living” constitution opened the door to representative majoritarianism in America.

Though the people have maintained the ultimate control over the government by virtue of elections, the government’s powers would now be determined by perceived social need or necessity.  The Court would turn rhetorical summersaults and stand logic on its head in order to justify new “interpretations” which would empower the government.  Those powers are limited now only by the Court’s imagination and the Justice’s perceptions of “necessity” and “justice”.  What distinguishes representative or republican majoritarianism from a constitutional republic is the constitutional restraints on what the majority is able to do.  As the restraints weaken and fall, representative majoritarianism is slowly institutionalized and the concern of a tyranny of the majority over the minority becomes very real.

An additional result of the Court’s metamorphosis in the 1930’s was the marginalization of the popular sovereignty of the American people.  Where it had once been primary, it would from then on be secondary, subject to the Supreme Court’s interpretive divergences from the Constitution, and exercisable only through Article 5.  From that time on, the will of the people expressed in the original, real Constitution could be discarded whenever the Supreme Court became convinced the new “living” constitution called for additional governmental power or new individual rights with which the states could not interfere.  The people thereby lost the primary control over effectively amending the supreme law in defining the power of government, the Constitution.

The new “interpretations” which resulted from the Court’s capitulation in the 1930’s have expanded Federal power consistently.  In more recent years, an accommodative attitude with respect to social matters and individual rights has resulted in the recognition of such rights as “constitutional” and not subject to state interference.  For several decades, we’ve now lived with the ramifications – an ever widening chasm between the “living” constitution, enabling the growing power of the Federal government; and the real Constitution, which limited its powers, honored the authority of the states, and held as its ultimate object, the sovereignty of the American people.

The Supreme Court’s recent rulings are cause for renewed attention.  In a two part effort to save the Affordable Care Act, the Court first ruled in National Federation of Independent Business v. Sebelius that the fee which will be imposed on those who fail or refuse to comply with the individual mandate to purchase health insurance is a tax and not a penalty.  This, despite the fact that Congress and the President both repeatedly assured the sovereign American people that the fee is a penalty and not a tax.

In part two, the Court ruled in King v. Burwell that, despite the express language of the statute authorizing federal tax credit subsidies only for health insurance which is purchased through an “exchange established by the State”, the subsidies are ok for health insurance purchased through an exchange created by the Federal government as well.  Again, we know that Congress intended to leave the Federal government out of the business of creating such exchanges because ACA “architect” Jonathan Gruber told us so.  “If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits. … I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges, and that they’ll do it.”

In these rulings, the Court did more than expand governmental power pursuant to an “interpretive” reading of the so called “living” constitution.  It breached the rule of law by discarding the express language of the statute in favor of an “interpretation” which would permit the statute to survive.  The ACA could not have survived without congressional intervention if the mandate fee had been deemed not to be a tax or if the subsidies were restricted to insurance purchased through a state exchange.  In order to save Congress from itself, the Court took on a legislative role in violation of the separation of powers enshrined in the Constitution, and rewrote the statute twice by false “interpretation”, thereby making it operational where it otherwise was not.

Finally, in Obergefell v. Hodges, the Court imposed upon the states the legal recognition of same sex marriage through a new “interpretation” of the 14th Amendment.  The 14th Amendment’s “equal protection” and “due process” clauses do not restrict the states from excluding same sex marriage.  We know this because it is beyond argument that the 14th Amendment would not have been ratified if the people understood at the time that it would be interpreted to create a right to same sex marriage.  Indeed, it is beyond serious question that at no time since the original ratification of the Constitution in 1788 up to this very day would a proposed amendment establishing a right to same sex marriage have been ratified by the sovereign people of the United States by the three-fourths supermajority required by Article 5.

The 14th Amendment was ratified in 1868.  Unquestionably, the Supreme Court of 1870 would not have ruled that states are constitutionally bound by the 14th Amendment to legally recognize same sex marriage.  Nor would the Supreme Courts of 1900, 1940, 1970 or 1995.  But at some point, the 14th Amendment magically began to require that states legally recognize same sex marriage.  Only the Supreme Court can tell us when.  Like a mythical oracle, only the Supreme Court can recognize the change in meaning.  Only the Supreme Court can know when and why a reinterpretation of the Constitution is warranted to give a different meaning than it has ever had in the past.  This is how a  “living” constitution works.  What was once a document establishing the limits of the Federal government as imposed by a sovereign people, now enables the Federal government to determine the scope of its powers and the limits of our individual liberty by virtue of the Supreme Court’s interpretations.

What has for years been obvious to some is now becoming obvious to all; the original Constitution – the one which limits governmental powers, establishes the three separate branches of government, institutionalizes federalism and preserves all non-enumerated powers to the states or to the people – is being diminished.  The original Constitution—the special one, the one that made America unique, the one that birthed American exceptionalism – is becoming a hollow shell.  The original Constitution is “dying”, supplanted by the “living” constitution – the one that says whatever at least five members of the Supreme Court says it says.

As a result, the public at large has become more accustomed to living within the paradigm of the “living” constitution.  By and large, people are happy when the Supreme Court renders a decision with which they agree.  They are angry when a decision goes against their interests.  As the Supreme Court becomes more disassociated from the real Constitution and more motivated by their own political sensibilities in rendering decisions under the “living” constitutional paradigm, it is understandable that the public should see it for what it has become, a non-elected, super-legislature with life tenure and no remaining serious constitutional limitations on its power.  As the Supreme Court’s use of judicial review becomes more recognized as a tool for placing a phony veil of constitutional legitimacy on the expansion of Federal power over the people and the states, the public may understandably come to the conclusion that judicial review no longer serves any purpose, legitimate or artificial, and may demand that we do away with judicial review altogether.  Why should we permit an unelected super legislature of nine appointed lawyers to have the last word over our governance once it is fully understood that they aren’t bound by any real abidance to the Constitution?  As Justice Scalia observed in his dissenting opinion in Obergefell, “(w)ith each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

When organizations and individuals express happiness or satisfaction over the results of Supreme Court cases such as the ACA cases and the same sex marriage case, they tacitly ratify the loss of popular sovereignty and acknowledge their willingness to be governed subject to the new paradigm. They fail to recognize that the end result will be the loss of our Constitutionally protected liberty.  Those who celebrate a Supreme Court decision founded on the fraudulent notion of the “living” constitution should rethink the proposition they are embracing.  The “living” constitution is not a constitution at all, but rather, a license enabling the nine appointed justices to pass final judgement on public matters with no basis or support other than the temporary, tacit permission of the American people.  If that permission is withdrawn what will remain will be a real Constitution of relatively little contemporary application or effect and a “living” constitution revealed to be the fraud it has always been.  The only viable alternative may be the completion of our move toward representative majoratarianism begun when the “living” constitution became the standard of judicial review. If so, our popular sovereignty will exist not in the Constitution but in the will of the majority as it speaks and acts through its representatives. What were once unalienable rights, will become at best privileges and at worst, distant memories.

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