Untried Weapons — Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 7) – Guest Essayist: David Eastman
Previous essays in this series explored why the Constitution is ineffective at restraining federal officials today, and illustrated how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively limiting federal overreach. The most recent essay highlighted current efforts to amend the Constitution through an Article V convention. The series now concludes with another largely untried weapon in the citizen’s arsenal today; issue-based legislative accountability.
A Deaf Congress
In 2014, researchers at Princeton University released the results of an exhaustive study that analyzed more than twenty years of federal policy. The study evaluated various actors and the effect that they had on public policy. After examining literally thousands of laws and how those laws came to be made, they were forced to admit that ‘the number of American voters for or against an idea has literally no impact on the likelihood that Congress will make it law.’ Specifically, they concluded that “the preferences of the average American appear to have only a miniscule, near zero, statistically non-significant impact upon public policy.” There are many reasons for this, not the least of which is that the level of political sincerity possessed by the average American today is miniscule, near zero, statistically insignificant.
In the last federal election, roughly 36% of Americans who could have voted, actually did vote. And in some states, that number dropped below 30%. The number of Americans whose level of conviction on political issues led them to take the step of contributing financially ($200 or more) to an election was less than one quarter of one percent. When politicians assess the sincerity of most Americans on political issues, they quickly realize that most Americans don’t care, or—if they do care—they don’t care enough to actually do anything about it. Moreover, those who do vote, overwhelmingly vote for incumbents. The reelection rate for the House of Representatives was 95% in the last election, and over the last 50 years that rate has never fallen below 85%. No matter how critical Americans may feel about Congress as a whole, the sentiment in every part of the country tends to be “I don’t like Congress at all, but my own congressman isn’t so bad.” The knowledge that a member of Congress will be re-elected even after voting to pass widely unpopular legislation—like the Wall Street bailouts or the portions of ObamaCare which exempted members of Congress from the effects of the law—has effectively neutralized the single “most effectual” check against federal overreach designed by the Framers. Without citizens willing to hold public officials responsible for their actions in an election, the Constitutional framework totters and then falls. In Federalist #57, Publius removes all doubt that it could be otherwise:
“If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.“
People or Process
Most plans to rollback federal overreach can be distinguished between plans to change the people in government—namely, the election of specific politicians—or plans to change certain aspects of the process, such as a constitutional amendment giving state legislatures the power to determine who will represent their state in the US Senate. Absent the political will to turn someone from office at election time, it can be tempting to seek process solutions, which do not require confronting a powerful incumbent at election time. It is a dodge of the real issue; whether or not the elected official will be held accountable for the decisions that they made while in office.
One of the most popular instances of this dodge is the proposition that we can make government more accountable to the people by restricting the number of terms that an individual can serve in office. Admittedly, the idea has some appeal. At the time the Constitution was drafted, the various states employed a wide variety of restrictions on which officials could run for re-election and the circumstances under which they could do so. Knowing this, the absence of “term limits” in the Constitution is all the more remarkable. Federalist #72 offers several reasons for this, and the debates in the Constitutional Convention offer further reasons.
Nevertheless, in a time when government seems so unresponsive today, it would feel rather good to be able to impose a restraint upon it. But other than feeling good about ourselves, and feeling as though we’ve “done something” (the motivation behind many of the disastrous laws passed by Congress in recent years), when the actual effects of term limits are examined, many conclude that the effect on policy—and let’s make it clear here, the reason politics interests us in the first place is the affect that government has on our lives through actual policy—is often largely negative.
In Oklahoma, citizens fought hard for term limits. But once those term limits were in place, the average length of an incumbent’s time in office actually increased. (Incidentally, a thorough treatment of term limits is outside the scope of this article, but readers can find thoughtful commentary here and here.) When they next sought to severely restrict the ability of the Oklahoma legislature to increase taxes, they collected more than 200,000 signatures, and launched a successful campaign that raised millions of dollars to enact the policy. Yet the legislature bypassed the restriction and now collects in excess of $600 million dollars a year in “fees”.
The number of plans to make government more accountable through the changing of various processes are countless, but they all dodge the real problem; holding elected officials accountable for their actions while in office. Without a willingness to confront an incumbent with their record at election time, such plans often have the effect of reducing accountability rather than increasing it. Regardless of any short-term gains that may obtain from the new policy itself, they distract from the real work of bringing government officials to a place of accountability. Let there be no mistake—providing accountability is hard. It is for this reason that it is often the last weapon a citizen picks up in the battle against those who have cast off constitutional restraints.
The Failure of Reasonable People
“The ‘reasonable’ people’s failure is obvious. With the best intentions and a naive lack of realism, they think that with a little reason they can bend back into position the framework that has got out of joint. In their lack of vision they want to do justice to all sides, and so the conflicting forces wear them down with nothing achieved. Disappointed by the world’s unreasonableness, they see themselves condemned to ineffectiveness; they step aside in resignation or collapse before the stronger party.” (Dietrich Bonhoeffer)
The plain truth of the matter is that the challenges that confront us in the pursuit of constitutional government in America today are not reasonable. It is not reasonable to be told by the person third in line to the presidency that we must pass a federal law so that we can find out what is in the law. It is not reasonable that a Congressman should have to frequently sprint 500 yards to remind that person that ten congressmen does not a majority make. It is not reasonable that a single man should invalidate the vote of a majority of more than 5,000 elected delegates at a national convention. These things are not reasonable, but they happen, and will continue to happen until someone puts a stop to them.
“Constitutional conservatives have a big task in front of them. You’re disposed to be reasonable, to observe principles—and the principles enjoin you to give the other fella the benefit of the doubt—to include diverse opinions, and so forth. And you’re facing an enemy that wants to destroy you, personally and socially. You have to find a way to square that circle.” (David Horowitz)
It has been said by men of great renown that eternal vigilance is the price of freedom. It is indeed—But it is not the only price of freedom. “The price of freedom is the willingness to do sudden battle anywhere, any time and with utter recklessness.” (Robert A. Heinlein)
The responsibilities of self-government are not something that we can empower some other group, organization, or party to do for us. No major party is furthering the agenda of restoring constitutional constraints in our government, and in most parts of the country, no minor party is either. Some conclude from this that there is no hope, and in desperation pursue various schemes to amend the constitution; schemes that—even if successful—would do little to actually improve the quality of American government. All too often they begin by asking the wrong question. Instead of asking how we stop public officials from abusing their power while in office, it is often more instructive to sit back and seek to determine what it is that has thus far kept them from worse abuses.
It is true, among all of the many organizations involved in government and politics today, there is a paucity of organizations who take seriously the need to hold elected officials accountable for the consequences of their actions. And few of the organizations who do pursue that work possess the humility to give full credit to those who have slowly undermined our Constitution over the course of many years, and also possess the patience to commit to taking just as long, if not longer, to rollback those accomplishments. Nevertheless, though small in number, such organizations do exist. And they are demonstrating that there is reason for hope, as even small organizations can have a powerful impact when they accept the political realities of our day and venture forth to do battle all the same.
Taking a powerful incumbent head-on and reminding voters of the unsavory things he or she has done, or not done, is not easy. But self-government was never designed to be. And in the form of government handed down by the Framers there is no substitute for it. Elected officials must be confronted for their actions, and that confrontation should be both public and also painful for them. It should be sufficiently painful that they refrain from making that same mistake a second time. Let there be no mistake—the way in which we answer this crisis will determine whether we keep the Republic handed down to us by the Framers. If we do not keep it we have it on good authority that John Adams at least will be repenting in heaven that they ever took half the pains to preserve it.
David Eastman is a graduate of West Point and a former Captain in the US Army. He has served at all levels of US government; city, county, borough, state and federal, and in each case was obliged to take an oath to support and defend the U.S. Constitution; He is a co-founder of Tax Our Kids, which advocates for sustainable government spending on behalf of future generations of Alaskans. He lives with his family in Wasilla, Alaska.
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