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AMERICAN EXCEPTIONALISM

January 27, 2012

In the last few years the term “American Exceptionalism” has come to the political forefront. As with any other term which moves into the political arena, it takes on the character of a political football. Whoever can define it in the public mind has control of the football. In preparing to run for the presidency Newt Gingrich wrote an entire book about it. In his introduction Mr. Gingrich describes the idea like this:

Belief in American Exceptionalism leads inevitably to smaller, more effective, accountable and limited government. The American Revolutionaries did not shed their blood for the welfare state; nor did they aim to replace the arbitrary rule of King George . . . with their own oppressive bureaucracy. Instead they fought for individual liberty–that made America an exception among all other nations.

But this individual liberty which Next speaks of is not altogether clear since it is likewise a term carrying a lot of political weight. To some people, like the President of the United States, I believe that liberty is merely a synonym for fairness which is the least clear term I can imagine.
As to his own idea of the meaning of American Exceptionalism, the President has said that he, as an American, believes in American Exceptionalism,

. . . just as I suspect that the Brits believe in British exceptionalism, and the Greeks believe in Greek exceptionalism.

A less than clear exposition but clearly not in agreement with Mr. Gingrich’s view, I believe it is fair to say, since it seems to deprecate the very concept of exceptionalism itself.

First, Mr. Gingrich.

Then, President Obama.

I would like to tell you what I think about the source of the American Exceptionalism. I will start where our exceptionalism started, with the founding of the country. Our country was born in a war which was declared by a Continental Congress. A formal body of men elected by their peers from the 13 American colonies. In this elected Continental Congress effectively resided, in the minds of the people, the sovereignty of the American people. This elected congress appointed the officers to serve in its continental army, it declared the independence of itself and its constituent colonies and it appointed ambassadors and other officials to effect its will. It was not an army with a political arm but a civilian political entity with an army. The army, and its commander in chief reported to Congress and was expected to serve Congress. At the conclusion of the war the commander in chief resigned his commission to the Continental Congress and went home to Mount Vernon. This view of the role of civilian versus military power was thus established in the United States But why? Why was it that General Washington effectively bowed to the civilian government of the United States? The underlying thought process on the part of all concerned flowed naturally from the general view in the colonies as to the proper role of governmental power, including military power, in the country and an implicit agreement as to the ends it should serve. The result of these views was a Declaration of Independence which is one of the most elegant documents in all history especially when you understand that it was drafted by a committee and submitted to a vote. It acknowledged, as it must have, both unalienable rights of the people and the ultimate purpose of government itself, which was to secure those rights to the people. It further acknowledged that governments derive their just powers through the consent of this people, in this context — those who are governed. This was from the beginning in the DNA of the country, not because of the words chosen by Jefferson and Franklin and Adams et al, but because of innate characteristics and opinions held by the majority of the American people.

The next step in the creation of our country was the drafting and adoption of the United States Constitution. Every state had input into the drafting of the constitution. After it was drafted and available for all to read and digest, every state had a choice as to whether or not to adopt or reject the constitution. The notes of the convention kept by James Madison show the full range of the debate in the convention. And let me tell you something else about the ratification which you may not know. Each state selected the members for the ratifying conventions of the states. It was not a decision made by the state legislatures, bodies of general jurisdiction, but was made by a group of people selected for the sole purpose of adopting or rejecting the constitution as drafted.

Some states withheld their ratification until they received a promise that a bill of rights protecting individual and institutional rights from national interference would be added to the seven articles which outline and constitute our form of government. Once again, consent, not force, was the basis of the decision of how the country was to be governed and the decision to join the government by each of the states. The oath of office for officers of the government specified that it was the constitution, the form of government, that was to be upheld and protected by those officers. There was no dividing line recognized between the constitution and the nation itself. And since the constitution was the law of the land, which could be read and understood by every one of its citizens, we became a nation ruled by laws and not by men. This constitution and the history behind it became part of the DNA of the country.

The requirement that the consent of the governed was necessary in order to legitimate the government was a third element of the DNA of this country. And the model of government which they chose was a constitutional republic, a style of government providing through that constitution for protection of the rights of people and institutions through the separation of powers, the bill of rights and use of enumerated powers describing the functions to be undertaken by the national government.

This process of adopting a national constitution was a reflection of the character of the American people. The end product, which was adopted by the ratifying conventions of all 13 states, was a roadmap for how the future consent of the governed was to be obtained. Hence the people, those in whom the declaration of independence acknowledged the power to form governments as well as to change or abolish them, rested, created a government like no other for the United States of America through adoption of the constitution and the bill of rights.

What does this all have to do with American Exceptionalism, you may ask?

American Exceptionalism in my opinion, is very much about where the remaining power lies after a part of the power has been ceded to the government. The power which was not ceded to the government by the people continues to lie in the hands of the people themselves. This fact is embodied in the tenth amendment to the constitution, the last of the bill of rights. That is the most important element of the idea of American Exceptionalism. The people have ceded only so much power to the government as is necessary in order to establish peace and the rule of law so as to permit them, the people of the United States, to govern their own affairs as they see fit. This, rather than the idea of government by elected legislators and officers, is the idea behind “self government.” Self government is often misunderstood as the idea of being able to vote into office those who we believe should be there so that they can govern us under the fiction that we are acting through them. This, in my view, is not the main point of self-government. Self-government, correctly understood, is the idea that we citizens, acting within the law and in reliance upon the guidance of our own consciences, retain the right to govern our own individual affairs. We remain the sovereigns or governors of ourselves. This does not mean anarchy, far from it. it means that the people are entitled to pursue what they desire in the context of a free and civil society. Of course, as John Adams observed,

Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.

As such our churches, the ones which the government was to stay out of pursuant to the terms of the first amendment, have been, to a great extent, the voluntary “re-education camps” required in a free country for it to exist and prosper. This concept of self government, coupled with personal restraint, which I believe flowed from a well-spring deep in the hearts of the American people from the very founding of our country, is the source of the concept underlying the term ‘American Exceptionalism.’

Categories: Politics, The US Constitution
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TIME MAGAZINE – JULY 4, 2011: Does It Still Matter?

July 12, 2011

Cover of Time Magazine, July 4, 2011

Eight months ago in “America’s Holy Writ” I responded to an Andrew Romano article published in Newsweek magazine. I actually suggested that Tea Partyers read the Romano article because, to an extent, it’s criticisms were on target.

Timed for release on the Fourth of July, Time Magazine has now unleashed it’s managing editor, Richard Stengel, upon those unworthy few who would defend the ideas originally embodied in the constitution. The title of the piece, “Does It Still Matter” could equally apply to the piece itself.

I’d like to take a moment to reply to Stengel even though I don’t recommend his article as I did Romano’s. Stengel doesn’t even give the Tea Partyers a fair hearing, preferring to caricature most of their ideas rather than trying to argue against them. This is most unfortunate since I had high hopes for an article written by a man characterizing himself as having run “the National Constitution Center in Philadelphia.” This is legitimate background and the article therefore promised to be an even better and more informed read than Romano’s.

Let me first set out a principle which, to me, debunks the entire premise of Stengel’s piece which is never mentioned by Stengel. The US Constitution forms the sole legal basis for the existence of the federal government and the role of that government in our lives. To me, that makes it seem kind of important and not at all irrelevant. But for the existence of the constitution, the exercise by the federal government of any power over the American people or even over the states would be, very simply, illegal. The constitution cannot be irrelevant until either the federal government no longer exists or the constitution is replaced by something else legitimating federal power. Stengel never really admits his true agenda. He assumes without stating that the constitution is merely an ancient symbol which “unites” us rather than a legal instrument from which any and all federal power flows.

Stengel’s very first paragraph telegraphs what he is going to do. He starts by listing a few modern developments of which the drafters could not have been aware and in so doing suggests that the framers of the constitution would be unable to make any sense of these developments under their little ol’ constitution, to wit: World War II, DNA, Sexting, Television, Miniskirts, Collateralized debt obligations, Computers, Antibiotics and Lady Gaga. His first direct assault is on the father of the country, George Washington. Says he, Washington was ignorant of powered flight therefore suggesting that drones over Libya and the use of GPS to aim missiles would raise questions of war and peace which would just be beyond him. Stengel implies that familiarity with old style cannon balls could never have prepared Washington for the knotty issues raised by technology. Without taking a breath he follows the idea of Washington’s dullness with the idea that the framers didn’t know about health insurance or even “germ theory.” His suggestion, Congress’s power to regulate interstate commerce can be used to force each of us to buy health insurance and, although mystified by the product, the use of this power in this way would have pleased the framers. Finally but still only in his first paragraph, Stengel suggests that Thomas Jefferson’s repulsive conduct of owning and sexually using his slaves would certainly invalidate all of his ideas about small government because it (his conduct) would likely have colored Jefferson’s view of the half black Barack Obama as President of the United States. That’s a lot of work for a single paragraph.

In his second paragraph he follows with a sop to the old guys lauding their attempts to protect democratic freedoms (of course he never mentions that these “freedoms” appear nowhere in the original constitution but were adopted later by the first congress as a double-check against misuse of federal power, these freedoms are otherwise known as the Bill of Rights). He then assassinates the characters of the founders for their “slaves as 3/5’s of a person compromise” without even mentioning the reason for that compromise. He continues with an indictment of the constitution for male only suffrage and finally winds up his second paragraph calling them “kind of crazy” to reach a compromise providing that each state, large or small, would have two senators.

Most of you already know this but for those who don’t, the 3/5’s compromise enabled the northern states to limit the representation of the southern ones in the House of Representatives to the number of their white inhabitants plus 3/5’s of their slaves. This was an indelicate compromise to be sure, but it was one which forced the south to accept fewer representatives in return for the north’s grudging agreement to allow the south to keep their slaves. Without this compromise the southern states would simply not have joined the union. A slave owning country or several countries would have remained. As to the idea of women’s suffrage, Stengel doesn’t mention that the franchise was left to the states and was not even addressed in the constititution. Finally Stengel avoids mentioning any of the reasons which underlay the apportionment of the senate at two senators per state. Does he not recall that the senate was the body in which the power of the states themselves was to be protected? Each state had an equal interest in seeing that it’s sovereignty was not impaired by an overly active federal government and therefore equal representation was appropriate. Further, to have apportioned the senate by population would have allowed states with the larger populations a larger voice and hence more of an incentive to take advantage of the smaller states, as such, when passing measures affecting the powers of the states. The role of a elected chamber based upon population was already played by the house of representatives and a second body, like the senate, would have been wholly unnecessary if the interests to be represented in that body were the same as those represented in the house. If the states were not perceived as in need of protection from a potentially intrusive federal govenment there would have been no reason for a second body in the legislature at all, much less one with two senators per state. In his “kind of crazy” remark the former “director” of the “Constitution Center in Philadelphia” indicates that he is unwilling to understand or even give voice to the rather delicately balanced structure of the constitutional government which was needed to address the interests of every group whose consent to be governed by the new federal government was needed.

After taking down the foresight and prudence of the founders Stengel heads out after the Tea Partyers, those who are supposedly fanatical about the wisdom of the founders. He correctly draws the battle lines between the “original intent” group and the “liberal legal scholars” who analyze the text to find the “elasticity” they believe the framers intended. However, after drawing these battle lines, Stengel inexplicably omits any reference to the source of the debate. Adoption of The tenth amendment, one of those ‘bill of rights’ amendments he previously thought so highly of for protecting our civil and political rights, was required as a condition of ratification of the constitution by several of the states. He simply references the existence and general terms of this debate over intent and leaves it at that. In handling the issue this way he creates a rough equivalence between the two contenders. the expansive camp and the restricted camp without addressing the merits. The tenth amendment as passed by the first congress and enacted by the states has much to say about which of the contending parties in the debate has it right because it provides that:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The intent behind the enactment of the tenth amendment is actually contained in the Preamble to the Bill of Rights, to wit:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

How did this history simply slip his mind, having been director of the “Constitutional Center?” Is it even relevant to him?

Without reference to the tenth amendment or it’s history, Stengel goes through the debates on several of the current issues currently requiring constitutional interpretation, i.e.: the dividing line between the war power of Congress and the power of the President as commander in chief of the military; the effect of the 14th Amendment’s acknowledgement that the debt of the US shall not be questioned on the debate as to whether it is even necessary to raise the debt limit; the question of whether the adoption of Obamacare is a form of regulation of commerce as contemplated by the constitution; and, finally, the question of whether the 14th Amendment’s extension of citizenship by birth in the US which was intended to confer citizenship upon former slaves should equally apply to make citizens of so-called ‘anchor babies.’

Stengel reaches some predictable results given his view of the constitution as a symbol rather than as a legal document to be construed according to the intentions of it’s drafters. Rather than intended to be stretched out of all recognizable form, the original constitution was intended to be subject to amendment as circumstances warranted and the people willed. What seems to irk Stengel and his crowd is, however, how high the bar for amendment was set by the founders. He prefers extensions of federal power by “analyzing” the language of the constitution in order to find the elasticity supposedly placed there by framers, a group still smarting from an oppressive British government which knew few boundaries to its power in the American colonies. His preference for looking at the constitition as a symbol rather than as a legal document subject to amendment is clear when he says:

We can pat ourselves on the back about the past 223 years, but we cannot let the constitution become an obstacle to a future with a sensible health care system, a globalized economy, an evolving sense of civil and political rights

Strangely, however, at the end of the piece Stengel quotes Judge Learned Hand, to wit: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.” Is Stengel suggesting by use of this quote that the desire for liberty has died in the American breast? For myself, I prefer the words of a related thought expressed by Thomas Jefferson in a letter to Sam Kercheval in 1816:

Where then is our republicanism to be found? Not in our constitution certainly, but merely in the spirit of our people. That would oblige even a despot to govern us republicanly. Owing to this spirit, and to nothing in the form of our constitution, all things have gone well. But this fact, so triumphantly misquoted by the enemies of reformation, is not the fruit of our constitution, but has prevailed in spite of it. Our functionaries have done well, because generally honest men. If any were not so, they feared to show it.

I agree with Thomas Jefferson in the sentiment stated. Unlike Stengel and apparently Hand, I don’t feel that yearning for freedom is dead in America. In fact, I believe that it is this yearning for liberty from the government’s intrusion in our daily lives which has given birth to the Tea Party. The Tea Party was not born out of a nostalgia for a dusty old document or for men who wore wigs or for those who held other men as slaves. The Tea Party embodies the voice of those people who stongly desire to govern their own affairs without either help from or control by the federal government and who are willing to engage in political battle in order to achieve that end.

Categories: The US Constitution
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The Supreme Court Legislates From The Bench, Again

July 8, 2010

Notwithstanding what you know or believe you know, it is the application of the Supreme Court’s so-called “incorporation doctrine” and not the 2nd Amendment which was the focus of the case striking down Chicago’s gun ban.  In McDonald v. City of Chicago the Supreme Court decides that state governments may not deny you, as represented in the case by Otis McDonald, the right to own and have a hand gun in your own home.  This is only an extension of the 2009 case, District of Columbia v. Heller, in which the Court held that the individual right to own a gun is protected against federal infringement.  

Otis McDonald

It is surprising to most that once Heller was decided that McDonald even needed to be addressed.  However surprising, the Bill of Rights was not originally intended to apply to the states but was designed only to restrain the power of the federal government.  The Supreme Court recognized this fact in 1833 in a case holding that the City of Baltimore could take private property without compensation to the owner which would otherwise have violated the Fifth Amendment’s takings clause, to wit:  “. . . nor shall private property be taken for public use, without just compensation.”  The need for the Court to decide whether the 2nd Amendment, once found applicable to the federal government, also applies to the states seems a non-question to most Americans.  That this issue would even need to be addressed by the Supreme Court seems odd and anachronistic in a world in which the federal government is universally considered the master and the states the servants.  This is their emotional reaction even though many are intellectually aware that the First Amendment provides,

Congress shall make no law respecting an establishment of religion . . .” etc.  [Emphasis added.]

We the people have just not followed the arcane legal basis of the evolution of the Bill of Rights into being generally applicable to the states as well as to the federal government.  There’s been no popular press coverage of this legal issue.  It has happened almost silently as far as the public is concerned.

There are four different opinions in McDonald written by the nine justices and they cross reference things they agree with in one another’s opinions.  Therefore, there are more than four opinions held by the nine.  Wow, huh?  So much disagreement over such a fundamental issue of our constitutional fabric of which the public is almost totally unaware.  How can this be?  What happened that there is still such a broad divergence of opinion on the Supreme Court in 2010?   Why hasn’t this been solved yet after about 220 years.  What has changed? Why aren’t we all on the same page about this by now? 

This is why.  The “what happened” is the adoption of the Fourteenth Amendment in 1868, passed in order to protect former slaves from the actions of the seceding states in the wake of the Civil War.  The Fourteenth Amendment explicitly modified the thirteen previous amendments and the power sharing envisioned by the rest of the constitution when it provided:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

We’ve been struggling for 132 years with the ramifications of these words.  How do they apply and what do they restrict?  Do these words amount to a “fairness” requirement for life in the US with the federal courts acting as umpires?  How does the 14th Amendment’s protection for the privileges and immunities of US citizens as well as the due process and equal protection of law interact with the “rights” of US citizens some of which are protected in the Bill of Rights?  What are privileges and immunities anyway?  How does the 14th Amendment dovetail with the first eight amendments and especially the Ninth which provides as follows:  

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The broad language of the 14th Amendment is subject to expansive interpretation by federal courts when they are asked to provide protection against actions of the states.  Into the breach, to remedy the lack of specificity of the Fourteenth Amendment, the Supreme Court has thrust a doctrine which correlates the due process requirements of the 14th Amendment with the protections provided by the Bill of Rights.  The so-called “incorporation doctrine” effectively grafts (incorporates) most of the individual rights protected by the Bill of Rights into the 14th Amendment, a doctrine which is then used to restrict the ability of the states to manage their own affairs.  As such the ‘incorporation doctrine’ has effectively been used to limit the power of the states since at least 1933.  It is the use of this doctrine in this manner which has been decried by many as federal courts “legislating from the bench.”

I find myself in substantial agreement with Justice Stevens dissenting opinion in McDonald.  This is odd since it is people philosophically aligned with me who complain most bitterly about federal courts “legislating from the bench.”  We do not usually agree with Justice Stevens.   Stevens in his dissent argues for restricting the scope of the 14th Amendment in a principled fashion without reliance on the fact that certain individual rights have been protected by the Bill of Rights, to wit:  

The question we should be answering in this case is whether the Constitution “guarantees individuals a fundamental right,” enforceable against the States, “to possess a functional, personal firearm, including a handgun, within the home. That is a different—and more difficult—inquiry than asking if the Fourteenth Amendment “incorporates” the Second Amendment . 

Showing the partisan divide of the Court while writing for the plurality Justice Alito spurns Stevens’s outreach to reconsideration of decades of poorly reasoned precedents calling his dissenting opinion “eloquent” but, with a nearly visible sneer, stating :

As we have explained, the Court, for the past half-century, has moved away from th[is] . . . approach. If we were now to accept Justice Stevens’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, . . .  [Emphasis added.]

Alito may be correct as to duplicitous motive behind the Stevens dissenting opinion.  Such a motive is made more likely because Stevens is now retiring from the Court and will not be voting to reconsider earlier precedents on the basis stated in that dissent.  (Among hundreds, subjects of reconsideration would be cases involving school prayer, abortion rights, rights of homosexuals, and even the rights of free expression of high school students).  I am not naive but it seems unfortunate to me that a non-partisan outreach to reconsideration of decades of questionable decisions could not have been accepted at face value and honored for what might have been.

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Krugman’s Depression!!

June 29, 2010

Paul Krugman

Well, it’s finally happened.  Nobel prize winning economist, Paul Krugman, is throwing in the towel on the current crop of top politicians.  He has called the start of the Third Depression.  The hyper-rational Krugman has concluded that the G8 and G20 leaders are not about trying to save their countries or citizens through a frugal reappraisal of their economies.  Oh no, he judges that Merkel, Harper, et al., are marching to a different drummer and an anti-social one at that:

So I don’t think this is really about Greece, or indeed about any realistic appreciation of the tradeoffs between deficits and jobs. It is, instead, the victory of an orthodoxy that has little to do with rational analysis, whose main tenet is that imposing suffering on other people is how you show leadership in tough times.

Although I am not a genius like Krugman, I believe that Keynesianism’s strength is that it addresses the economy as a dynamic whole.  The idea is that the more money that is moved (spent), the higher the incomes of the people.  Hence, in recessions and depressions Keynes prescribes a policy of forcing money to move. The problem is that when you move borrowed money through the system in a way which does not result in an increase in real wealth, you have wasted the money.  And the taxpayers still have to pay it back.  How much of the money increases real wealth?  I’m thinking that the $700 Billion stimulus bill, put together in a matter of months, probably has a lot more boondoggles than wealth creating projects in it.

It’s like the difference between borrowing $100 to buy a business tool and borrowing the same $100 to eat out.  The former increases your wealth, you are demonstrably better at making money.  The latter only makes you better off to the same extent that a patio grilled hamburger,  which would have fed you just as well, would have made you better off.  If you spent $100 to eat out and you could have served hamburgers on the grill for $10, you’re $100 in debt but only $10 better off.  Surely, the restauranteur and the waiter and the chef are better off but you’re still left in debt from the extravagance.  Keynes assumes that you’ll be better off in the long run when the money goes around.  Perhaps this is so but we’re all still in debt even though we made some money in the coming around going around merry go round. 

It can only be true that the political leaders of the largest economies on earth are sadistic ideologues if they believe that their borrowing money today is without negative economic consequences in the future and still they refuse to do it?  Are we really to believe Krugman cares more about their electorates than they do?  Is this refusal to accept purely rational Keynesianism just another example of populist anti-intellectual backlash ?  Being willing to allow “unnecessary” pain to be visited upon current voters in order to benefit those not yet alive or at least not old enough to vote is without a doubt politically difficult.  After all, it is not a political coincidence that Keynesianism, which minimizes short term pain, is the very ‘ism’ we in the US have been following since Bush and the Democratically controlled congress passed a $152 stimulus in 2007.   Krugman the intellectual simply denies even the possibility that the willingness to accept current pain is simultaneously the patriotic and responsible thing to do.  

Mr. Krugman, is it possible that the G8 and G20 leaders believe in the “new orthodoxy” of frugality because they have lost faith in the long term benefits of following Keynes?  We started with Keynesian policies in the 1930’s so it seems it’s fair to say we’re in the long run now. Keynes didn’t theoretically address the long term outcomes of continuously following his proposals over a long period since he suggested that in the good times which followed the bad ones we’d pay back the debt.  It should also be remembered that Keynes coined the phrase, “In the long run we are all dead.”   What’s happening right now in the Keynes driven economy?  Not much good that I can see other than an increased propensity to save.  The political leaders of much of the rest of the world, personally disdained by Krugman, seem to agree with my assessment of the situation. 

Keynes is Krugman’s intellectual hero.  A rejection of Keynes is in a real sense a rejection of Krugman.  Krugman obviously believes that rejecting Keynes and therefore Krugman is irrational.  The rejection of Krugman may be what he really has in mind when he calls the G8 leaders sadistic.

Categories: Clash of Worldviews, Political Economy
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