Federalism and the Separation of Powers, Day II
Yesterday’s conference focused upon the separation of powers at the federal level, and the extent to which the Framers’ balancing of the three branches has been superseded by subsequent constitutional, political, and cultural changes.
Reference was made to Oakeshott’s categories of civil associations and enterprise associations, the former where agreement on the aims of the civil body is absent (in the sense that there is no overriding goal to which the members of that society will defer), the latter where such agreement is present, to the extent that members of the society will subordinate their principal personal aims when necessary to achieve the common agreed-upon goal. The comment was made that the United States is normally, in peace time, a civil association, but in war time often shifts to an enterprise association (the commonly shared goal being, presumably, national self-preservation). Accordingly, the civil association is marked by agreement on procedural not substantive norms.
Another commenter, building upon the Oakeshott dichotomy above, drew parallels to Mark Sandels’ (ph) categories of the republic of common aims and the procedural republic, the former mapping roughly to Oakeshott’s enterprise association, the latter to the civil association. The commenter emphasized that the procedural republic, notwithstanding its name, does contain agreed upon substantive aims, although those goals are cloaked in seeming "procedural" language. His point was that the procedural republic betrays a conception of the human person as a wilful atom, whose principal good is the maximization of willed choices, without discrimination as to the object of the will’s desire, so long as the willed choices do not impinge upon the coordinate willed choices of other human-atoms. I see traces of Rawls and Nietzsche here, but the connection (if any) was not raised in discussion.
To avoid the specter of the human-atom, one commenter proposed a return to the constitutional morality of the Framers (a position advanced, I believe, by George Carey of Georgetown University). The value of that adoption would be the filling of the moral vacuum presupposed by the modern liberal procedural republic and Oakeshott’s civil association. In other words, a constitutional morality would provide both an intimation of the vita bona to which individual human action should be directed, as well as a bundle of rights around which the twines of procedural safeguards could be drawn. The commenter did not have time to explain the content of this constitutional morality, but I would think that it must be based upon a natural law theory to which all persons of right thinking can subscribe, something, in Rawls’ terms, that would comport with good public reasons.
In subsequent sessions, the comments turned toward reform, specifically whether reform is possible and, if so, how it can be effected. One commenter located the source of the collapse of federalism and separation of powers in American exceptionalism, both in the notion of America as the shining city on a hill, as well as in America the bringer of democracy to the hapless peoples of the Earth. For my part, I urged that a reinvigorated constitutional jurisprudence, emanating from the judiciary, could well be the catalyst to real reform, as opposed to that reform coming from other branches. That fact is due in no small part to the collective action obstacle: the President is hampered by the modern administrative state; Congress, as a collective body of 535 persons, cannot act effectively; but the Supreme Court, with just five votes, can overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend. A limited "substantial effects" test, a recharged nondelegation doctrine, and a return to economic due process would yield significant benefits, and quickly. Of course, the likelihood that five justices would have the courage so to rule is no doubt small, but my point was simply that the likelihood is greater than the likelihood of the coordinate branches taking remedial action.
Another discussion point was the president’s war powers. One commenter noted that recent presidents have forgotten the political expediency that can be gained from obtaining a Congressional declaration of war. For such a declaration, because of its rarity, would focus the public’s attention, and alert them to the real possibility of prolonged conflict. Another commenter observed that the warfare state engenders emergencies, which provide further opportunities for the president to extend his warmaking powers. The commenter generally endorsed Jefferson’s approach to the president’s foreign policy powers, exemplified by the Barbary Pirates controversy. In that conflict, Jefferson determined that his authority was limited, in the absence of a declaration of war, to providing defense for American and other shipping in the Mediterranean.
In the conference’s final session, the focus was on the potential for the Presidency to devolve into Caesarism. One commenter noted that Caesarism is possible when the people no longer know how to rule themselves, and no longer care to. I then made the point that Welfarism may indeed be an early symptom of Caesarism. The Caesars gave the masses bread and circuses (panis et circenses); the modern presidency gives the masses welfare. The Caesars drew support from the masses; the modern presidency does the same. There is here, as I noted at the conference, a certain parallel between a "welfaristic" slouching toward Caesarism, and the slouching toward servility in Western democracies noted by Belloc in The Servile State. There, Belloc makes the point that the capitalist state—understood as a society in which a small minority owns the vast majority of the means of production, but where everyone "owns" certain political freedoms—is inherently unstable, because a large portion of the populace lives in materially precarious circumstances. Such a state has three courses open to it: socialism, where the state owns the means of production; distributivism, where the means of production are owned by individuals, but ownership is spread fairly evenly across the populace; and servility. In the servile state, to obtain security, the unpropertied masses will "sell" their political freedoms to the state, in exchange for which they receive sustenance in the form of welfare.
One commenter, in discussing reform, argued that the temptation to utopianism would be a significant obstacle to the return of strong federalism and the separation of powers, presumably because those two principles of the Founding were meant to retard the actions of government, whereas utopianism requires a government generally unfettered in its powers. I then raised the point of Chesteron, in his What I Saw In America, that America is the only nation with the soul of a church, because it is founded upon a secular creed. The need to maintain our secular creed may be a built-in risk for utopianism, but that fact simply underscores the importance of finding some substratum of "common aims" to avoid the downsides, discussed above, of the procedural republic.
With respect to reform of the presidency, one commenter observed that historians and the press have created a perverse incentive for presidents to aggrandize power, for one cannot be a "strong" president unless one acts, and few presidents are considered "great" who were not also "strong."
I concluded my observations with a reference to Maritain’s line in The Peasant of the Garonne, namely, the attitude of the Left is to prefer what is not to what is, whereas the attitude of the Right is to prefer injustice to disorder. The relevance of Maritain’s statement lies in this: to seek always a "return" to what may have been, in the name of conservatism, may well prove to be disguised Leftism, whereas resignation to the irrevocability of the present state of affairs may be a copout countenancing of injustice.
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A Viniferous Post Script
When one travels to Indiana, one probably should not expect the highest quality victuals and libations. But I must confess to pleasant surprise at the wines providing the conferees for our dinners and for our post cenam hospitality. I noted wines from France (at least one Beaujolais), Washington (Chateau St. Michelle), and California. The white varietel was limited to Chardonnay, but the reds included a very good Napa Cabernet (Caravan, I believe), as well as a California Pinot Noir and a Washington Merlot. Needless to say, the good wines proved very helpful to insightful conversation among the conferees.