The Constitution matters more than individual policies or political gain.
These days, it is hard to be a constitutionalist. Our system of government is under attack from both the left and the right.
Progressives are gnashing their teeth over President Trump’s executive order cutting federal subsidies to insurance companies. This, they argue, will raise the costs of insurance and perhaps facilitate the collapse of the Obamacare marketplaces. What they overlook is that the subsidies were almost certain to be struck down by the Supreme Court, and for very good reason. Under the constitutional order, it is Congress that is tasked with appropriating money, and President Obama had no right to offer the subsidies in the first place.
Some conservatives, meanwhile, are cheering over President Trump’s recent attacks on the press. Last week, he tweeted, “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!” Never mind that the national networks do not themselves possess broadcast licenses — instead, local affiliates do. This demonstrates profound disrespect for the First Amendment right to a free press, which Trump has never been a particularly stout advocate of. During the presidential primaries last year, after all, he talked about tightening up libel laws against journalists reporting on celebrities.
What both progressives and conservatives are doing is sacrificing a commitment to the rules of our political system for a short-term policy or for political gain. This is incredibly short-sighted. It seems as though both sides could use a refresher course on why the Constitution — and the rules of order it establishes — are so important.
Our system of government is built in part on the moral philosophy of David Hume (1711–1776), the Scottish philosopher who profoundly influenced both James Madison and Alexander Hamilton. Hume had a rather skeptical view of man’s capacity for rational thinking, holding that reason is basically a slave to the passions.
This has important consequences for the development of “political society,” the purpose of which, Hume postulated, is the administration of justice, “without which there can be no peace among [men], nor safety, nor mutual intercourse.” For even though all of mankind is “sensible of the necessity of peace and order. . . . such is the frailty or perverseness of our nature! it is impossible to keep men, faithfully and unerringly, in the paths of justice.” Man is frequently “seduced from his great and important, but distant interests,” namely the peace and prosperity that comes from the proper administration of justice, “by the allurement of present, though often very frivolous temptations.”
The purpose of government, many Framers believed, was to deal with “this great weakness . . . incurable in human nature.” Madison called this task the “great desideratum,” or necessity, a phrase that recurs throughout his writing around the time of the 1787 Constitutional Convention. He told George Washington that “the great desideratum, which has not yet been found for republican governments, seems to be some disinterested and dispassionate umpire in disputes between different passions and interests in the state.” Put bluntly, this is a very difficult task, which by that point had not been accomplished in the thousands of years of Western civilization.
By Madison’s thinking, the great desideratum implied two particular mandates. First, government had to be organized to keep factions in society from using the powers of the state to advance their own, selfish interests, against the rights of others or the welfare of the whole. Second, government had to be organized to keep the rulers from using their authority for themselves rather than for their constituents.
Basically, the Constitution is an effort to achieve these two goals, in light of Hume’s pessimistic take on humankind. The Framers applied what Madison and Hamilton called “the science of politics” to rechannel the selfish and passionate nature of man toward the good of society, properly understood through reason and deliberation. This endeavor accounts for pretty much every feature of our government — and the heated debate surrounding the ratification of the Constitution often boiled down to whether the finished product did a good enough job of preventing natural human selfishness from undermining the general good.
This is why our Constitution separates powers among branches. It was widely understood at the time that the tasks of drafting, executing, and interpreting the law are too weighty to be held in the same hands. This is why it establishes two chambers of Congress — the legislature was widely viewed to be the most dangerous to the long-term stability of republican government. Thus, it includes the Bill of Rights, because the Anti-Federalists (who opposed the creation of a strong, central government) wanted written assurances that this new federal government was not going to restrict civil rights. This is why it is a national government: The Founders believed that a large, diverse republic was less likely to produce a majority faction powerful enough to enforce its selfish dictates on the rest of society.
Republican government rises or falls based upon how good its rules are.
For our purposes today, this is why the rules of government matter at least as much as public policy. Indeed, I would argue that the rules are more important than any given policy — because without good rules, it is virtually impossible to produce good policy. If we agree with Hume that man is incapable of avoiding the “frivolous temptations” that undermine justice, then republican government rises or falls based upon how good its rules are.
So, to the liberals who are upset about Trump’s executive order to end subsidies to insurance companies, I say: Get over it. President Obama should never have ordered the Treasury to provide these subsidies in the first place, given that Congress expressly declined to appropriate the money to pay for the subsidies and that only Congress can appropriate funds. Congress should have written a better law. If you want the law improved in a specific way, then do the hard work of convincing your fellow citizens to elect politicians who will do it. Don’t go trampling on the principle of separated powers. It is too important.
And to the conservatives who are cheering Trump’s suggestion of restricting the press, I say: You are playing a dangerous game. I agree that the mainstream media are biased, but I do not want the authority of the state used against media outlets. You shouldn’t, either. If we allow the government to pick and choose what is “fair” reporting and what is “biased,” it will not be long until the state comes after conservative media, too.
In general, I would hope that people of all political persuasions can agree that the rules of our Constitution are pretty good. They have set the broad guidelines of our politics and created a framework by which an agrarian country of just 3 million people, mostly clustered along the Atlantic seaboard, could grow into a postindustrial, continent-spanning nation of more than 300 million. The rules are not perfect — designed by naturally selfish and fallible men, how could they be? — but they are good enough that we should change them only after careful, considered, and direct debate. We should not sacrifice them merely for the sake of some immediate policy interest or political grudge, however pressing we might feel it is.
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