Democrats vs. the Constitution

Detail of Scene at the Signing of the Constitution of the United States by Howard Chandler Christy, 1940 (Wikimedia)
Democrats are obsessed with the pursuit of national power, especially the centralized and centralizing power of the presidency.

NRPLUS MEMBER ARTICLE H aving taken control of the House of Representatives, the Democrats face an enormous and perhaps insurmountable political barrier to achieving their agenda. It’s not the Republicans. It’s the Constitution.

“Kill the Constitution” would not be a winning campaign slogan for the Democrats, and you will rarely hear an American politician running against the Constitution as such. But it is the Constitution and the American constitutional order — not Senator McConnell — that currently vexes them.

At the time of this nation’s Founding, there were 13 distinct communities that had been colonies and had become states. Some of them were urban, industrial, and densely populated; some of them were rural, agricultural, and sparsely populated. They had religious differences (we sometimes forget that while the federal government is now forbidden from creating an established church, the states did have official, state-supported churches), economic differences, and what turned out to be an irreconcilable difference on slavery. The smaller states were hesitant to join the Union without protections and guarantees that they would not be subjected to a vulgar democracy in which their interests would be swamped by those of the more populous states.

The compromise that emerged from that situation is what is sometimes known as “dual sovereignty.” The federal government and the states each have their own sovereign powers, which sometimes overlap: That is why the terrorist Terry Nichols, for example, was tried both on federal charges and in Oklahoma on state murder charges. Each sovereign has the right to make its own laws and to enforce them. The principal role of the federal government was, under this understanding, to take responsibility for issues that cross state lines or that concern the union of states as a whole: interstate commerce, foreign relations, national security, etc. There have been more and less expansive interpretations of what constitutes a genuinely federal issue, with conservatives historically leaning toward a more restrictive view of the federal government and progressives looking to put the federal government into the service of national economic-planning programs, national infrastructure projects, and the like. These interpretations have never broken down neatly along party lines or political affiliations: The Republican party of President Lincoln’s time had a wing that was recognizably conservative in the contemporary sense of that word, but President Lincoln, like his fellow Republican President Eisenhower a century later, was very much interested in what he called “improvements,” meaning mostly what we now call “infrastructure,” canals and railroads in one century and the federal highway system in the next. These projects were thought of as being national in the sense that they would improve the economic productivity and public life of the nation as a whole by enabling the easy movement of goods and people — and, if necessary, soldiers: It’s the Dwight D. Eisenhower National System of Interstate and Defense Highways.

Projects that are national in scope in a country as large and complex as the United States inevitably require standardization and regimentation. In the early days of railroads, different railways used different gauges of track, a situation that was of relatively little practical consequence until the railroad network grew extensive enough that the discrete systems began to interconnect. Different parties had different political and economic interests in particular configurations of track — hence the so-called Erie Gauge War — but competition among the railroads and the economic power of the major industrial and agricultural concerns inconvenienced by incompatible tracks were sufficient to ensure almost universal standardization. The emerging Internet had standardization needs that were in many ways similar.

In our time, we think of progressives as being anti-business, or at least skeptical of the political and economic power of big corporations and business alliances. But the political thinking of the Progressive Era was profoundly influenced by the business philosophy of the time, which was not the libertarian-oriented business thinking we are used to hearing from Charles and David Koch or the Chamber of Commerce. The experience of building out the railroad network had left a profound mark on American business culture, as had the emergence of such techniques as the use of standardized and interchangeable parts in machine construction (one of Samuel Colt’s many contributions to American life), assembly lines (particularly in the automobile industry), and more systematic approaches to business management. Frederick Winslow Taylor’s “scientific management” philosophy was ascendant, and business and government alike were consumed with efficiency, rooting out waste and redundancy, and coordination. Many of the leading business thinkers of the time were frankly corporatist (the railroads had been a textbook example of corporatism in action), decrying “destructive competition,” duplication of effort, and the general messiness of free markets. You can still hear the echoes of that when Senator Sanders decries the many available brands of deodorant.

Academics, government officials, and business leaders alike came to believe in the inevitability of “scientific” management of the economy — not quite the “scientific socialism” of Pierre-Joseph Proudhon and Friedrich Engles, but something closer to the Italian corporatism that grew out of the same intellectual foundation. That thinking is still very much with us: For example, much of the case for the Affordable Care Act was based on the idea by that achieving a more unitary and standardized system of providing and paying for health care would enable government experts to wring efficiencies out of the system. (Much of that debate rested on the question-begging argument that profit and executive compensation are forms of waste, subtractions from the good of health-care consumers. That is pure superstition.) Similar arguments are made in favor of a “Medicare for All” national health-care system. The thinking behind No Child Left Behind and Common Core emphasized standardization and homogenization, as do most arguments for national plans regarding energy or economic development.

And we should not turn our noses up at standardization: It has revolutionized everything from intercontinental shipping to communication to pharmacology. Having more or less standardized shoe sizes is really useful if you are buying shoes online. (And the act of doing business online is made possible by a great many standardization efforts.) The problem is a familiar one: lack of intellectual humility. The political mind is fundamentally primitive, and it is captive to a kind of magical thinking, laboring under the superstition that the real world is governed by the words in the Federal Register rather than by physics, economics, and history. Observing the efficiency and effectiveness of a limited and manageable enterprise such as a well-organized assembly line or a scrupulously observed railroad schedule, the progressive imagines that the same principles can be put to work managing incomprehensibly complex organic phenomena such as health-care systems and energy markets. This is the dream of society as one big factory under the management of benevolent (not to say godlike) experts.

If this seems like a long way afield from where we started, it isn’t.

If you believe that what the world needs — what America needs — is efficient expert management, then you will pursue policy goals that emphasize size, scale, homogeneity, systematization, and regimentation. And your preferred instrument almost always will be the federal government; 50 states doing things 50 different ways is incompatible with your vision of intelligent expert administration. (Of course I am simplifying here, but I do not think that these characterizations are unfair or uncharitable.) And that is what we have seen from our modern Democrats for a generation: Their pursuit of national power, especially the centralized and centralizing power of the presidency, is an obsession followed often to the exclusion of other opportunities for political power. The Democrats won the White House twice under Barack Obama but were jackhammered at the state and local level, losing 900 seats in state legislatures, more than a dozen governorships, and more than a dozen state legislative houses. This did not seem to bother them very much. They also lost their congressional majorities, which stung more, but keeping control of the presidency — and hence the administrative state — was a great consolation. Their commitment to a Washington-based approach to political and economic life has not wavered.

Unfortunately for them, our Constitution is set up along other lines.

The interests and position of the states are fortified by institutions such as the Electoral College and the Senate, even as diminished as it is: Changing the nature of the Senate was one of the great political achievements of the Progressive Era.

Which of our institutions do progressives most detest? The Electoral College and the Senate. (The Bill of Rights gets no love, either.) On 16 October Jay Willis, who writes about politics for a fashion magazine, called for the abolition of the Senate on the grounds that it disadvantages progressives: “Since there now are a greater number of sparsely-populated, mostly-white, right-leaning states than there are heavily-populated, racially-diverse, left-leaning states, the Senate acts to preserve power for people and groups who would otherwise have failed to earn it.” Ken Dilanian of NBC News made the same argument. Philip Bump, writing in the Washington Post, complained that Brett Kavanaugh was confirmed by senators representing less than half of the population, and described the functioning of the Electoral College and the Senate as an affront to the “precept that all men are created equal.” Ken Norton of Google has called for the abolition of the Senate. The Green party has called for its abolition, as has Slate’s “Chatterbox” column. Dylan Matthews bemoaned the Senate in Vox. And it’s not just far-left wackos: Michael Walsh praised the prospect of abolishing the Senate here in National Review, and in the Washington Post John Bicknell advocated abolishing the Senate as the only means to render Congress functional enough to contain the imperial presidency. The many Democrats who have called for the abolition of the Electoral College have been sufficiently heard from and do not need revisiting here. The progressive (and occasional conservative) preference for more direct mass democracy is based either on a romantic overestimate of the intelligence of the mass electorate or (more likely, I think) overconfidence in their ability to manipulate that mass electorate.

It is unsurprising, then, that most of the foregoing Democratic arguments are mere demands for greater political power disguised as calls for “fairness,” an infinitely plastic concept. And we can be reasonably confident that if certain shoes had been on other feet — if Democrats enjoyed a commanding position in the states, or if Mrs. Clinton had won in the Electoral College with a couple million fewer votes than Donald Trump — that the intensity of their complaints would be diminished. But this is not only naked political calculation: The belief that the United States should be administered as a single unitary entity and that the 50 states are 50 impediments to national progress and efficient national administration is deep in their political thinking. In fact, it may even be the case that their political calculation is a lagging indicator driven in part by their policy vision: Being so focused on Washington, it is natural that the Democrats have allowed the atrophy of their political muscle in the states, leading to diminished power in them. At the same time, the people in the more rural states have not failed to appreciate that the Democrats’ Washington-first approach devalues them and their communities — precisely the problem that our constitutional order was designed to ameliorate.

Many Democrats argue that those dusty old 18th-century debates about how to organize the union are no longer relevant. The people of Wyoming obviously feel otherwise.

And therein lies an opportunity for conservatives of both the libertarian and Burkean tendencies, which may be summed up in a word that conservatives sometimes roll their eyes at: diversity. Russell Kirk wrote about the proper appreciation for genuine diversity in ways that may make the modern reader a little squeamish:

Conservatives pay attention to the principle of variety. They feel affection for the proliferating intricacy of long-established social institutions and modes of life, as distinguished from the narrowing uniformity and deadening egalitarianism of radical systems. For the preservation of a healthy diversity in any civilization, there must survive orders and classes, differences in material condition, and many sorts of inequality. The only true forms of equality are equality at the Last Judgment and equality before a just court of law; all other attempts at levelling must lead, at best, to social stagnation. Society requires honest and able leadership; and if natural and institutional differences are destroyed, presently some tyrant or host of squalid oligarchs will create new forms of inequality.

Kirk argued that good government meant “recognition of local liberties and interests and diversities and their safeguarding in the state.”

Conservatives sometimes are ridiculed for treating the Constitution, the Declaration of Independence, and the words of the Founding Fathers as though they were delivered on stone tablets by Moses himself. (My own belief is that the conservative attitude regarding the Constitution and the Founders is a very healthy prejudice to have, even if its expressions can be sometimes a little silly, e.g., waving all those pocket Constitutions in people’s faces as though that were an argument.) Perhaps we conservatives are inclined to cleave to our Constitution simply because it is ours, but we should also appreciate that the order it creates makes for reasonably good governance and the chance of happy living. Conservatives should rejoice — loudly — in the facts that ours is a large, complex, messy republic, full of diversity of a much more meaningful sort than that contemplated by the self-flagellating partisans of intersectionality. We will argue our case, but we also are satisfied, if not quite content, to let California be California — and we would be much more content if our progressive friends were satisfied to let Texas be Texas.

What we sometimes describe as federalism is not a mere mechanism of political compromise, a way of allowing Republican candidates for federal office to dodge contentious issues by insistent that they be “left to the states,” though there is much to be said for leaving those to the states. It is, or should be, part of a broader conservative politics that insists that the states matter and that the communities within them matter — that Americans matter in the particular, not only in the aggregate. What is good and worth defending about Wyoming and North Dakota is good and worth defending irrespective of what 50 percent plus 1 of the American people at large think about it. (And who’s asking them, anyway?) The politics and the social dynamic are right there in front of our eyes: The progressive model of homogenizing and regimenting politics is very much of a piece with the hysterical demands for obedience on social media, the speech policing on the campuses, the excesses of the feminists and the other grievance professionals, the stultifying conformity that dominates the corporate cultures of Google, Facebook, Apple, and others. It is an attempt at the standardization of places and communities — and the standardization of souls. Their instrument is the politics of “My Gang Is Bigger Than Your Gang,” what stands between us and them is a frail little fence made of parchment and memory.

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