In a recent comment thread Aretae proposes a revised federal constitution that would provide a better bulwark against federal encroachment of state's rights. I agree with the goal of devolution. But I think Aretae's plan just throws the ring into the bottom of the river. I aim for Mount Doom.
The problem is that Aretae leaves federal power in the hands of those who wish to expand federal power. He just tries to tie their hands to prevent them from doing anything. He does so by repealing the 17th amendment, rephrasing the commerce clause, requiring a balanced budget, and limiting laws to a single page.
I don't think this will hold up. A popularly elected House and President still a huge incentive for a scholar caste, interest groups, and demagogues to decipher the public into granting the federal government more power. The average voter still has the incentive to support tax and spend schemes that transfer money from the rich to themselves. Judges will reinterpret the "living" constitution to justify new actions. If judges can reinterpret the commerce clause to justify controlling elementary schools, then they can reinterpret anything to say anything. Some justices even go so far grabbing the mantle of executive power. Check out this description of Israeli justice Aharon Barak.
Under Aretae's system it would only be a few years until laws are passed with a 1,000 lines that then authorize an agency to write 100,000 lines of regs. Washington's accounting is already so fudged that a balanced budget amendment will spring a hundred leaks. There are infinite opportunities for recognizing fake revenue or profits.
The original constitution lasted for ~120 years before succumbing to the FDR coup. But remember this was best case. Most copies of the British and/or American political system have done much worse, the worst cases like the Congo lasting no more than a day.
The factors that made the constitution last for 120 years are no longer in play. The voters are no longer libertarian. There is no frontier. No state militias. Powerful interest groups and parties are now well organized and embedded. Even conservative justices now think the commerce clause allows the Feds to regulate elementary education. If you could roll back the constitution to 1790, it would not be more than a decade before it returned to its current state of bloat.
So how do we actually cast Washington's ring into Mount Doom? Here is my answer, based on formalist principles:
A core formalist principle is that: Government acts in the interest of those who control it. If we want government to remain anti-federalist, we must put the reins of power in the hands of people who have the incentive to minimize federal power. The masses do not have such an incentive. Justices appointed by a popularly elected president do not have such an incentive. But the state governments do.
The aim of the Finbarrian Federal Constitution is to preserve the only two jobs the Federal government has done reasonably well (continental defense, and preventing wars between the states). Every other power gets delegated to the state level. Ideally existing states would be broken up into even smaller units, each no bigger than a metro-region.
a) Eliminate Congress entirely, both the House and Senate. Eliminate all the cabinet agencies, and all the administrations. Everything gets delegated to the states.
b) Keep only two branches of the government a) a supreme court b) a continental defense force.
c) The Continental Defense Force is managed by a board of trustees. The board can a) approve treaties b) appoint the commander in chief of the military c) carry out other general board duties (approving promotions to general, approving major purchases, etc). The board has no general legislative powers. It cannot regulate interstate commerce, much less education.
d) Taxes are voted on via the ancient principle: "No representation without taxation". Any new tax, or tax increase, is voted on by the states. Each state's vote is weighted by the amount of tax it will pay. States that do not pay the tax thus get no vote.
e) The supreme court is appointed by the states. Any state can nominate a justice, and then the state governments vote on the choices. The states votes are weighted by population. Nine justices sit on the court. Their tenure lasts 15 years, at which point they receive a life pension.
Once again, there is no power of federal legislation. States must make their own free trade agreements with each other. If Cleveland is polluting Lake Erie and dropping acid rain on New York, then New York brings a suit in the Supreme Court. The Supreme Court makes a decision and assigns damages to Cleveland. The government of Cleveland pays, and it is up to Cleveland to regulate its own factories to prevent further fines.
Since the court and board of trustee are appointed directly by the states, there is zero incentive to appoint a justice or a trustee who will reinterpret the constitution or encroach state sovereignty. Control of Federal government is placed directly in the hands of those who wish to limit Federal power.
There is a second key principle of formalism that needs to be observed: Formal power should be aligned with physical power
In law, Britain had the power to tax American colonies. But it did not have the armies present to enforce the law. The disparity between formal power and actual power was unstable and ended in war.
The most basic way of aligning actual power with formal power is to a) write up a formal charter that is largely acceptable to the military b) make the military swear an oath to uphold that charter c) make key controllers of the charter approve all promotions in the army, so that the entire command and control hierarchy is filled with faithful adherents to the charter.
If you want to make the alignment even more powerful, the charter could stipulate the continental defense force be not allowed to have an army on the continent itself. The defense force would have a navy, nuclear missiles, cruise missiles, and an air force. But each state would have its own ground forces and fighters.
I'm not sure if the above is actually a good idea. On the plus side, it makes the federal government less likely to abuse the constitution. On the down side, it increases the chance of civil war.
Obviously this plan is ridiculously unrealistic at this current juncture. But I always find it most useful (and entertaining) to come up with the best solution, and the work backwards to the most possible solution for the given circumstance. In a future post maybe I'll discuss how we can get Frodo going on his little journey.
Over on Aretae and Foseti's blog we've been having a Libertarian versus Formalist Deathmatch. We recently struck a key point of contention.
To the libertarian, democracy is an unsatisfactory form of government that ultimately fails to solve the problem of bad government. At first democracy was an improvement over monarchy/aristocracy, but over time it decayed.
To the formalist, democracy was a giant step backwards from monarchy/aristocracy at the very moment mass elections were introduced. Democratic governments have continued to decay to a point where it threatens western civilization itself. Simply re-introducing aristocracy/monarchy/colonialism would be a huge improvement. But these governments had their problems too. So as long as we're making radical changes the Formalist wants to introduce a much improved form of elective monarchy/aristocracy.
There are two main points of evidence for the libertarian case:
a) Democratic countries tend to be much more properous than non-democracies.
b) As the world moved from aristocracy/monarchy to being more democratic, the world got much richer. The commoners under Louis XIV were really poor, the commoners under President Sarkozy are much better off.
The formalist has two counters to the above data points.
On point A) the formalist believes that democracy is poison. Only the richest countries with the strongest culture and institutions can survive party politics. Weaker polities succumb very quickly to tyranny or civil war, and thus are no longer democracies. And unforunately, the Wilsonian reformers of the 20th century did not think to leave a control group of Western countries that remained monarchical. Except perhaps for Lichenstein which is doing quite well for itself.
On point B) the formalist believes that democracy came to power just as technological growth was going exponential. Democracy did not make growth go any faster, and in many cases made it go slower.
The above points are about as opposite conventional wisdom as you can get. It opposes Libertarian, Conservative and Progressive history.
To really understand the formalist point, you need to understand the formalist (reactionary) version of history. So here is a very brief formalist history of the modern world:
a) The aristocratic and monarchical regimes that reigned in Europe and colonial areas usually provided a quality of government that ranged from poor (Tsarist Russia) to very good (Colonial Pennsylvania).
b) People were poor in France because the population was at Malthusian limits. The government of France was not great, but the France of Louis XVI was no more oppressive than the U.S. government of 2010.
c) The legal reforms and innovations of the feaudal, aristocratic and monarchical era set the stage for rapid industrial growth. From 1000 through the 1800's the west developed strong property rights, contract law, banking systems, joint stock corporations, stock markets, rule of law, and jury trials. English common law, the Napoleanic Code, the Austrian Code, Penn's Charter of Privileges, and Prussian Civil Code all established englightenment era rule of law. These laws enabled entrepreneurship, capital formation, and industrial growth.
d) Concurrently, innovations in firearms resulted in mass, peasant armies becoming the most unstoppable military force. As a result, either by choice or by force, rulers began acceding to democratic elections to build the legitmacy needed to rally mass conscript armies.
e) Universal suffrage elections acted as poison. In the country with the strongest polity (the U.S.) the poison has weakened us over time, but has not been fatal. The quality of U.S. government went from exceptional in the early aristocratic republic of 1800, to good, to its current state of mediocre or poor.
f) Mass elections selected for increasingly jingoistic politicians. This jingoism exploded into the great, total wars of democracy: the Wars of the French Revolution, the U.S. Civil War, World War I and World War II. The wars between monarchs (for instance the 1870 war between France and Germany) were usually fought by professional armies and were limited affairs. But in the democratic wars the entire nations were locked into an insane, bloodthirsty, jinoistic frenzy, and the mob refused to allow politicians to surrender at anything less than total victory or total defeat. The democratic wars only ended when the U.S. and the USSR conquered almost the entire world, and then deadlocked in nuclear stalemate. The victors installed education systems in Germany and Japan that indocrinated the citizens into a docile pacifism.
g) In states with weaker polities the poison of elections wreaked massive damage. Russia's republic lasted all of eight months. The quality of government went from mediocre/poor under the Tsar's to disastrous under the Bolsheviks. German government went from pretty good under Meternich to poor under the Weimar Republic to catastrophic under Hitler. Mexico went from being ahead of the U.S. in learning and the arts to being a violent, anarchic, and impoverished mess. Bourbon Naples went from being one of the most glorious cities in the world to the most trashy. Italy went from elegant to fascist. Spain went from sleepy to civil war. The Congo went from one of the fastest growing countries in the world to the world's worst basket case.
h) In the Western countries, the introduction of universal suffrage lowered the trajectory of growth, but usually it did not impede the natural progression of technology.
i) Technology has a natural exponential curve to it. Once you discover a new energy source like oil, it makes a gazillion other technologies possible (mass scale fertilizers, automobiles, etc). And once you free up agriculture labor to become engineers and machinists, you get far more inventions.
j) As a result, technology growth accelerated, even as the legal structures which enabled technology growth decayed due to the democratic influence. The technology growth exceeded the decay in western countries.
k) Of course in other countries the decay exceeded technological growth. The introduction of the electoral poison in the Congo, Liberia, Rhodesia, etc, brought instant ruin.
l) The poison of democracy is running so deep now, that even the western countries will not survive the century unless the poison can be expelled. California turns into Brazil, Brazil turns into South Africa, South Africa turns into the Congo, and the Congo continues to be hell on Earth. Detroit remains in ruins. The industries are artrophy as the U.S. survives like late imperial Spain, by exporting its own currency. An ever increasing regulatory state is choking off economic growth. And the progressive elites of the western are actively pursuing a program of population replacement, by importing millions culturally alien people who will vote the correct, left-wing way.
m) Simply restoring the Belle-Epoque era aristocracies, monarchies, and colonial governments would ignite a massive rebirth of good government. Putting Evelyn Baring in charge of the middle east, Petillon in charge of the Congo, Peter Romanov in charge of Russia, Peel in charge of England, Louis XIV in charge of France, Frederick the Great in charge of Germany, United Fruit in charge of Guatemala, Porfirio Diaz in charge of Mexico, Washington in charge of the U.S., etc, etc, would lead to a massive and glorious restoration. The whole world would feel like it was waking up from a long nightmare. The gangsters waging war across Mexico would be brought to heel, the 50's style brutalist buildings that scar Germany would be torn down and replaced, the Congo would return to its status as one of the fastest growing countries in the world, the third world as a whole would disappear into a bad memory.
n) The first goal of the formalist is to convince people that democracy is the problem. Despite the devastating impact democracy has had on every country of the world, the elite still believe it is the best (least worst) form of government. They keep inflicting it on countries like Palestine, South Africa, Iraq, and Afghanistan, with disastrous results. Simply putting a general or king in charge of Iraq would be a massive improvement.
o) The second goal is to design a better system of government for the modern world. The monarchies cannot be restored. And for all their good elements, monarchies also had a lot of bad parts. So the formalist learns from history and learns what worked and what failed. The formalist takes lessons from the structure of modern corporations. Finally, the formalist pays attention to local situation, history, and culture. From these elements the formalist tries to work on the design for a government that could be as far ahead of monarch, as monarchy is ahead of democracy.
p) The third goal is to figure out how the hell to actually establish the new, reformed government. We are still many years away from working on that problem. But we cannot wait too long, the hour grows late.
Aretae and Borepatch have been riffing on the long standing differences between the Roman tradition and the Celtic/German tradition:
The Roman model is top-down, and has appealed for centuries to the Intellectual Elites who see themselves as potential Imperators, or at least Equites, fit by birth or by Class to instruct the Lower Orders. Palin is through and through representative of the Germanic/Celtic bottom-up system, where talent and determination is more important than Class membership.
But recently I came across a passage from Carroll Quigley's superb history, Tragedy and Hope, that argues a very different view. Quigley's passage sounds a bit like a "just so" story, and I'm not really sure what his evidence is. I personally know very little about German history, and so I cannot really take one side or the other. But on every topic in Quigley's book that I do know a lot about, Quigley is better than almost any other history I've read. So I do find the passage quite intriguing. Here it is:
The fate of Germany is one of the most tragic in all human history, for seldom has a people of such talent and accomplishment brought such disasters on themselves and on others. The explanation of how Germany came to such straits cannot be found by examining the history of the twentieth century alone. Germany came to the disaster of 1945 by a path whose beginnings lie in the distant past, in the whole pattern of German history from the days of the Germanic tribes to the present. That Germany had a tribal and not a civilized origin and was outside the boundaries of the Roman Empire and of the Latin language were two of the factors which led Germany ultimately to 1945.
The Germanic tribe gave security and meaning to each individual's life to a degree where it almost absorbed the individual in the group, as tribes usually do. It gave security because it protected the individual in a social status of known and relatively stable social relationships with his fellows; it gave meaning because it was all-absorbing— totalitarian, if you will, in that it satisfied almost all an individual's needs in a single system. The shattering of the Germanic tribe in the period of the migrations, fifteen hundred years ago, and the exposure of its members to a higher, but equally total ... social structure—the Roman imperial system; and the subsequent, almost immediately subsequent, shattering of that Roman system caused a double trauma from which the Germans have not recovered even today. The shattering of the tribe left the individual German, as a similar experience today has left many Africans, in a chaos of unfamiliar experiences in which there was neither security nor meaning.
When all other relationships had been destroyed, the German was left with only one human relationship on which he turned all his energy—loyalty to his immediate companions. But this could not carry all his life's energy or satisfy all of life's needs—no single human relationship ever can—and the effort to make it do so can only turn it into a monstrosity. But the German tribesman of the sixth century, when all else was shattered, made such an effort and tried to build all security and all meaning on personal loyalty. Any violence, any criminal act, any bestiality was justified for the sake of the allegiance of personal loyalty. The result is to be seen in the earliest work of Germanic literature—the Niebelungenlied, a madhouse dominated by this one mood, in a situation not totally unlike the Germany of 1945.
Into the insanity of monomania created by the shattering of the Germanic tribes came the sudden recognition of a better system, which could be, they thought, equally secure, equally meaningful, because equally total. This was symbolized by the word Rome. It is almost impossible for us, of the West and of today, imbued as we are with historical perspective and individualism, to see what Classical culture was like, and why it appealed to the Germans. Both may be summed up in the word "total." The Greek polis, like the Roman imperium, was total.
We in the West have escaped the fascination of totalitarianism because we have in our tradition other elements—the refusal of the Hebrews to confuse God with the world, or religion with the state, and the realization that God is transcendental, and, accordingly, all other things must be, in some degree, incomplete and thus imperfect. We also have, in our tradition, Christ, who stood apart from the state and told his followers to "Render to Caesar the things which are Caesar's." And we have in our tradition the church of the catacombs, where clearly human values were neither united nor total, and were opposed to the state.
The Germans, as later the Russians, escaped the full influence of these elements in the tradition of the West. The Germans and the Russians knew Rome only in its post-Constantine phase when the Christian emperors were seeking to preserve the totalitarian system of Dioclesian, but in a Christian rather than a pagan totalitarianism. This was the system the detribalized Germans glimpsed just before it also was shattered. They saw it as a greater, larger, more powerful entity than the tribe but with the same elements which they wanted to preserve from their tribal past. They yearned to become part of that imperial totalitarianism. They still yearn for it. Theodoric, the Ostrogoth (Roman Emperor, 489-526), saw himself as a Germanic Constantine.
The Germans continued their refusal to accept this second loss, as the Latins and the Celts were prepared to do, and for the next thousand years the Germans made every effort to reconstruct the Christian imperium, under Charles V (Holy Roman Emperor, 1519-1555) as under Theodoric. The German continued to dream of that glimpse he had had of the imperial system before it sank—one, universal, total, holy, eternal, imperial, Roman. He refused to accept that it was gone, hating the small group who opposed its revival and despising the great mass who did not care, while regarding himself as the sole defender of values and righteousness who was prepared to sacrifice anything to restore that dream on earth. Only Charlemagne (died 814) came close to achieving that dream, Barbarossa, Charles V, William II, or even Hitler being but pale imitations.
After Charlemagne, the state and public authority vanished in the Dark Ages, while society and the Church survived. When the state began to revive at the end of the tenth century, it was obviously a separate entity from the Church or society. The totalitarian imperium had been permanently broken in the West into two, and later many, allegiances. During the split in the Dark Ages of the single entity which was simultaneously Holy Roman, Catholic, Universal, and Imperial, the adjectives became displaced from the nouns to leave a Universal Catholic Church and a Holy Roman Empire. The former still survives, but the latter was ended by Napoleon in 1806, a thousand years after Charlemagne. During that thousand years, the West developed a pluralistic system in which the individual was the ultimate good (and the ultimate philosophic reality), faced with the need to choose among many conflicting allegiances.
Germany was dragged along in the same process, but unwillingly, and continued to yearn for a single allegiance which would be totally absorbing. This desire appeared in many Germanic traits, of which one was a continued love affair with Greece and Rome. Even today a Classical scholar does more of his reading in German than in any other language, although he rarely recognizes that he does so because the appeal of Classical culture to the Germans rested on its totalitarian nature, recognized by Germans but generally ignored by Westerners. All the subsequent experiences of the German people, from the failure of Otto the Great in the tenth century to the failure of Hitler in the twentieth century, have served to perpetuate and perhaps to intensify the German thirst for the coziness of a totalitarian way of life.
This is the key to German national character: in spite of all their talk of heroic behavior, what they have really wanted has been coziness, freedom from the need to make decisions which require an independent, self-reliant individual constantly exposed to the chilling breeze of numerous alternatives. Franz Grillparzer, the Austrian playwright, spoke like a true German when he said, a century ago, "The most difficult thing in the world is to make up one's mind." Decision, which requires the evaluation of alternatives, drives man to individualism, self-reliance, and rationalism, all hateful qualities to Germanism. In spite of these desires of the Germans for the coziness of totalitarian oneness, they have been forced as part, even if a relatively peripheral part, of the West to live otherwise. Looking hack, it seemed to Wagner that Germany came closest to its desires in the guild-dominated life of late medieval Augsburg; this is why his only happy opera was placed in that setting. But if Wagner is correct, the situation was achieved only briefly.
I have never been to Germany, and no little of the German character. I know even less about German history. Quigley's passage is fascinating, but I'd want to read a lot more before trusting it fully. Anyone have any good sources about German culture and history?