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George on George: Or, How I Learned to Start Worrying and Love the Founders
Published on Tuesday, July 12, 2005 by CommonDreams.org
George on George:
Or, How I Learned to Start Worrying and Love the Founders
by David Michael Green
 
I am a political scientist by training and by trade, but that doesn't mean I have long revered the Founders of the American republic. Indeed, it took the Bush presidency to bring me to a full recognition of their wisdom and their contribution.

Americans are wont to worship the Founders as icons, very often without knowing why, and certainly without much consideration of their flaws. It would be an interesting exercise, I imagine, to ask them what they thought of these men ("Hey, great guys!"), and then follow up by asking why they feel this way. My suspicion is that one would get lots of vague pronouncements about the Revolutionary War and the Constitution and freedom and democracy and such. The case of the revolution has always been rather odd, given the inherent conservatism of American domestic and foreign policy, and the country's far too frequent (and far too successful) efforts historically at stifling revolutionary attempts at liberation at home and especially abroad.

As for the rest, for decades polling data has demonstrated a lack of broad support for the sort of civil liberties enshrined in the Bill of Rights, when asked in the abstract. And I will risk being labeled elitist to suggest that many Americans have only a vague grasp, if any at all, of the significance of concepts like separation of powers, federalist power sharing, bicameralism, separation of church and state, etc. Given that there are nearly two hundred other countries in the world, not to mention loads more historical regimes to choose from, this weak appreciation for the Constitution is likely especially true in a comparative sense. That is, what makes this particular governmental scheme better than, say, the British one, which is highly different but certainly still a democracy?

My own (former and still partial) wariness about joining the club of Founder worshipers emerges from several sources, it seems to me. To begin with, while they got a lot right, they also got a lot wrong. There are the obvious choices, including enshrining and codifying the practice of slavery, as well as the profoundly nondemocratic nature of the original constitutional regime, with its electoral college, its elite-chosen Senate and its extremely circumscribed electorate comprised essentially of rich, white men. And then there's the less-than-broadly remembered fact that the Constitution was not their first try at institutional engineering. The Articles of Confederation system had lasted hardly more than a decade when its failure was evident enough to drive the old gang back to Philadelphia for a major remodeling job. But I think, in retrospect, my reticence to embrace the Founders wholesale has everything to do with the historical period in which I came of age.

I was in my teens when Watergate happened and Vietnam ended. Moreover, I was deeply imbued with the spirit of both the New Left and the counterculture movements of the time. On the whole, these were incredibly important, incredibly necessary developments for American political culture. But I'm not sure their legacy, at least in my own case, was one hundred percent positive. In particular, I think my generation derived from the events and passions of that period not just a healthy skepticism, but perhaps an unhealthy cynicism as well. That is - in polar opposition to many of my parents' generation who were far too credulous about government (and thus were cut to the bone by Vietnam and Watergate) - we became perhaps too inclined to assume the worst about all things Establishment. Which meant all the knee-jerk worship of the Founders struck me as so much blind hagiography, well suited to Elvis's era perhaps, but not to Lennon's.

It has taken George W. Bush, however, to make me appreciate the degree to which I had thrown out the baby with the bath water. You see, if you take the complete bundle of issues and debates with which the Founders wrestled (and with which American has wrestled since, and with which other polities continually wrestle), there is a common theme underlying virtually all of them. It is the question of concentration of power, an idea with which the Founders were fairly well obsessed. What I now recognize and greatly appreciate is that in threading the needle between power too concentrated and power too diffused, the Founders came up with a rather astonishing feat of political engineering.

Americans take it all for granted. We've been taught to revere them, so we do, along with Jason Giambi and Britney Spears, though with less clarity as to why. But Martians visiting Earth would never figure it out in a million years. "You say you've fragmented your government into a zillion pieces, all of which have to concur before anything can be agreed upon? Hmmm. You say you've then institutionalized conflict between these pieces to encourage them to block each other? Ah, we, uh... see. Well, then. This has certainly been fun, but we've really got to be off right now for a very important pow-wow in the Gamma Quadrant. Love to stay, but we can't - you know how fussy those Kerilians can be about promptness! Meanwhile, don't mind us while we just check off this little box here on our Galactic Field Survey Data Collection Form. No, no, it may look like it says 'Hopelessly idiotic natives - conquer immediately', but it really doesn't mean that at all. No worries. Lovely meeting you Earthlings. Really!"

What the Martians would recognize is that this is a system designed to fail. What they wouldn't see is that that is only true most of the time. The Founders had lived through the unpleasant experience of power highly concentrated, in the form of George III. They didn't like that all, so when they first got a chance to design their own system, they went way in the opposite direction under the Articles, and spread power out broadly across the states. But by the time of Philadelphia in 1787, that was also an evident disaster, with the states taxing each others' goods, nearly going to war with one another, and with the central government, such as it was, completely unable to put down a bunch of rowdy farmers in Shays' Rebellion.

The triumph of the Constitution as an act of political engineering is that it found a balanced sweet spot between these two extremes by designing a system in which power was spread out enough to quell (most of) that generation's fears of concentration of power, but not so much so as to render government ineffectual. The rather ingenious system they devised is one in which the government can move expeditiously when there is broad consensus to do so (e.g., after Pearl Harbor), but hardly at all when there is not (e.g., Social Security 'reform'). It thus institutionalizes a split between the two unhappy extremes of George III and the Articles of Confederation. It is worth taking a moment to examine how this works, not just to admire the handicraft of the Founders, but also to fully appreciate the danger signals flashing red today.

By my reckoning, there are three axes along which one might concentrate power more or less in the designing of a political system or regime. We might describe these as the societal, vertical and horizontal dimensions and, depending on the choice we make along each of these lines, we can then combine these three forms into a systemic configuration which manifests more or less overall concentration of power. The societal dimension determines how much decision-making authority goes to government, as opposed to civil society, that broad agglomeration of political parties, newspapers, labor unions, churches, bowling clubs and the like. All power in the hands of government yields a totalitarian system, like Stalin's, Mao's or Hitler's, where everything from art to science to religion is dictated by the state.

At the other extreme, no governmental power whatsoever produces anarchy (literally, 'without a ruler'). In between are authoritarian, liberal democratic and other system types, where more or less power is in the hands of government versus civil society. America's Founders, deathly afraid of overweening and intrusive government, sought to limit sharply the powers of government. These limitations are found chiefly in the civil liberties enshrined in the Bill of Rights. But the Bush administration is making a mockery of these civil liberties, tearing up constitutional guarantees as fast as it can find them. Not that they were in such great shape to begin with. F. Lee Bailey put it best: "Can any of you seriously say the Bill of Rights could get through Congress today? It wouldn't even get out of committee."

Right you are, F. Lee. We know this because the anti-Bill of Rights sailed through Congress in the wake of 9/11. The so-called Patriot Act has been the vehicle for much of Bush's civil liberties destruction, with the new powers it has given the government to probe our personal data, library records and homes, all without requiring probable cause, judicial sanctioning or notification.

But even more egregious has been that poster child case of civil liberties destruction, what should be renamed the "George W. Bush Black Hole at Guantanamo Bay". Like another George before him, this non-elected king has claimed the right to condemn Americans and others to imprisonment without representation, without charge, without trial, without conviction and without habeas corpus rights. These sorts of behaviors represent precisely the types of grievances which compelled the Founders' generation to fight a war for independence, and precisely what they sought to avoid when they wrote the Constitution and the Bill of Rights.

Of course, this is only the beginning of Bush's transgressions. There is the torture scandal of Abu Ghraib and beyond. There are scores of detainees who have been tortured to death. There are those who have been 'rendered' to other countries for purposes of being tortured by other, less polite (or less self-deluded) societies. And there are those who are ghost prisoners who have, for all intents and purposes, simply disappeared off the face of the Earth, sucked into Mr. Bush's existential black hole.

Even more frightening, for the long haul, has been the destruction of constitutional guarantees of free assembly and, effectively, free press. Hundreds of American citizens were falsely arrested for protesting the Republican convention in New York last year, after being set-up by the police on the ground, and later again by evidentiary fabrication. Many were saved from prosecution only by independent videos which showed that the state had wantonly doctored their own film, and had out-and-out lied in sworn testimonies concerning supposed police observations (e.g., cops testifying to violent resistance when video proves they weren't even at the site).

Then there are the myriad transgressions by the administration in distorting the media and spreading disinformation. Planting stories, planting reporters, creating 'news' videos, buying off pundits, and press intimidation are among the more egregious behaviors we've witnessed in George W. Bush's new world order. The result has been as effective as it is disgusting.

The administration lied its way into war in Iraq, yet rare was the news outlet in America that had the courage to challenge patently bogus government claims. The country's two great bastions of political coverage, the New York Times and the Washington Post, were reduced to offering pathetic apologies after the war began for the ineptitude (and this is the charitable reading - co-optation is far more likely the accurate explanation) of their 'coverage' of Bush's war justification claims. And yet, remarkably, they continue in the same pattern today as they ignore (or even mock) the gargantuan story of the Downing Street Memos. So bad is the current state of American journalism that, in the latter case, media consumers have had to force purveyors to end their silence and present us with news we already knew about.

None of this comports with the vision of the Founders, who saw a free people, a free press, and guaranteed civil liberties against a powerful state as the first line of defense against dictatorship, and so wrote the Constitution and Bill of Rights. But George Bush cannot be bothered with such legal niceties. On the societal dimension, liberties are diminishing, power is concentrating, and Bush is crowning himself king.

The same has been true on what we might call the vertical dimension of power concentration. Here, the question is how shall power be distributed between the central, national government on the one hand, and the units within the system on the other. The Founders had had the unfortunate experience of living through both extremes prior to writing the Constitution. First there was the British Crown, which lorded power over the colonists in ways which they found unacceptable, creating grievances but denying opportunities for representation or local governance. So, when they got the chance to write their own ticket, the Founders naturally reverted to the opposite extreme, substituting the extreme diffusion of power under the Articles of Confederation for the extreme power concentration of the British monarchy which preceded it.

By the time the too-autonomous states were nearly going to war with one another, the Founders realized that they needed to find a happy medium, and thus was born at Philadelphia the invention of vertical power-sharing, otherwise known as federalism.

And while American federalism has certainly evolved over the centuries, the latest twist takes the form of contorted (so-called) conservatives now embracing the power of the very same federal government they've spent decades trying to undermine in the name of states' rights. What's changed that is responsible for twisting these politicians of such high principle into philosophical pretzels? Could it be that they have now seized power across the board within the federal governmental - all four branches, if you count Alan Greenspan (who, were he a lady, would now have certain, ahem, reputation issues) and his Federal Reserve? Or is that just a wild coincidence?

In any case, once again we see a steady march in the direction of concentration of power. The so-called No Child Left Behind federal education policy offers a good example. Despite the fact that this is a domain that has been traditionally reserved for the states (remember when conservatives wanted to close up the Department of Education?), the federal government has now stepped all over it with a massive footprint. It also happens to be lousy legislation, which has added to the frustration of the states, to the point that even Republican bastions Texas and Utah have taken dramatic legal and legislative steps to free themselves of this yoke from on high.

An even more ridiculous example is provided by the decision of the Supreme Court in Ashcroft vs. Raich, the medical marijuana case. Antonin Scalia has spent a career leading the Supreme Court to rewrite the rules of American federalism in favor of the states, including, for example, telling Congress that it was powerless for this reason to outlaw the presence of guns near schoolyards. All of a sudden, however, when the exercise of federal power jibes with his ideological preferences, it doesn't seem so problematic. Referring to the precedential case which has been a historic bugaboo of conservative states' rights supporters like Scalia, he said during the Raich hearings: ""It looks like Wickard to me. I always used to laugh at Wickard, but that's what Wickard says." Ha-ha. I used to laugh at far-right conservatives, but that seems so long ago now. Meanwhile, let me see if I have this straight now. The federal power-expanding Wickard case applies to keeping medical marijuana out of the hands of emaciated, retching cancer patients, but not to keeping guns out of the hands of children and adults in or near schoolyards? With that kind of consistency of legal reasoning, no one should be surprised if Wickard some day becomes laughable for Justice Scalia once again.

The truth is that federal power now goes essentially anywhere conservatives want it to go, which amounts to everywhere when they're in power, and nowhere when they're not. Scalia's most disgusting display of this unprincipled principle was, of course, Bush vs. Gore, which would have been one of the Supreme Court's darkest historical stains even had the Bush presidency they created not turned out to be such a disaster for humanity.

In this case, Scalia actually ordered the counting of votes stopped, a fact which on its own I expect never to get past during my lifetime (and I'm proud to say to any conservative critics, "No, I haven't gotten over it, and I won't get over it, because the 'it' is nothing less than American democracy"). But what made this crime even more egregious (if that is possible) is the fact that it was perpetrated by these so-called champions of both judicial restraint and states' rights. In fact, elections - even elections for the presidency - have long been a responsibility and prerogative of the states, not the federal government. For Scalia and his band of tory hacks to decide as they did required them to contradict everything they had supposedly stood for during all those years we were subjected to their whiney rants about excessive federal power and activist judges. Bush vs. Gore represents the most extreme case of judicial activism, and it was activism utilized to vastly extend federal power where it had never gone before.

And so it is that, on this second dimension of power concentration - the vertical - the regressive forces which have now captured all the levers of power at the federal level have exercised those powers in ways their hated liberal opponents would not have dreamed attempting. And they've done so in the crassest form of hypocritical fashion, championing states' rights to advance their agenda when the principle serves that purpose, and reversing themselves to assert the opposite notion of federal power when that has the same effect.

Nor is that the end of it. A third dimension of power concentration, which we can label the horizontal, provides another opportunity for any given system to concentrate or spread power, depending on the design chosen. A parliamentary system has the effect of consolidating power substantially in the hands of a cabinet comprised one or two dozen leaders or - even further - into the hands, effectively, of the prime minister alone. Britain, obviously a democracy, nevertheless demonstrates how such a power-concentrating structure works. Whether the cabinet rules, as it did traditionally before Thatcher and Blair transformed the system, or the prime minister, Parliament becomes little more than a rubber-stamp for most legislation submitted by the government. This is because of the built-in majority the government enjoys, by definition (that parliamentary majority is precisely why the government is the government). So Blair, the executive, gets essentially everything he wants from the legislative body, nor are there any courts which can strike down laws for lack of constitutionality. This has led more than one commentator to describe the British prime minister as an 'elected dictator', all the more so because there is also no power-sharing to speak of there along the vertical dimension (indeed, such units with which to share power hardly exist in the UK).

The contrast with the American president, at least in normal times, could not be more stark. In this country, executives cannot simply snap their fingers and get what they want - outside of limited military deployments - precisely because the Founders did not want them to be able to. Instead, they must convince Congress of the wisdom of their proposals and, if that has been accomplished, hope that the courts will also go along for the ride. Even should all 535 members of Congress and the president agree on a given issue - representing the will of 300 million Americans in concurrence - one federal judge can at least temporarily kill their legislation. And five unelected and virtually unremovable Supreme Court justices, deliberating in secret, can impose that decision permanently on the entire nation. Every American president has felt the frustration attendant to this horizontal distribution of power, but few have so deliberately, arrogantly and wantonly scuttled it as has George W. Bush. Often it has not been necessary for him to do so because of his collaborators who hold a majority of seats in both houses of Congress, and because of cowering Democratswho lack the will and inclination to wield power when they have it, and to artfully advance their agenda when they don't. Nevertheless, the administration's unwillingness to respond to congressional inquiries or to permit constitutionally-mandated congressional oversight is sometimes staggering. The examples are as myriad as they are egregious: Cheney's secret energy policy meetings; the administration's wall of lies and non-answers in the run-up to war; Bush's muzzling of the government's Medicare actuary who knew the true costs of the prescription drug bill; his refusal to provide information about John Bolton's internal spying activities; and his refusal to answer a letter signed by over 130 House members calling for explanations concerning the Downing Street Memos scandal. In the latter case, his press secretary has simply said that the president
sees "no need" to respond.

Remarkably, and rather surprisingly, a federal (and in some cases, state as well) judiciary dominated by conservatives has nevertheless shown itself capable of some flourishes of independence, for example in the Terri Schaivo debacle. But predictably, that has only earned these judges the wrath of regressive leaders who have nearly come out and called for their assassination. Literally. Despite the fact that the Tom DeLays of this world supposedly believe in judicial restraint, and despite the fact that a study just published on the New York Times op-ed page shows that it is conservative Supreme Court justices who are actually the biggest judicial activists, the right continues to rail against any shred of judicial autonomy - and therefore to rail against the intentions of the Founders.

What one gets - if we add this all together - is an American government which is concentrating power in each of the three ways it is possible to do that: on the societal dimension by stealing it from us, on the vertical dimension by stlaling it from the states, and on the horizontal dimension by stealing it from Congress and the judiciary. This isn't fascism, but it is creeping in that direction.

All of which, by the way, represents the Founders' worst nightmare, and the reason they constructed the rather bizarre political regime they did, one which effectively divides the government into pieces and sets those pieces into rivalry and conflict with each other. Which is also why they would abhor the power concentrating in George Bush's hands, and the arrogant way in which he has come to treat the Americas (and the world) as personal colonies in his global empire.

George on George? That George would clearly have found this George very reminiscent of another George. Perhaps he would even have led a revolution against this boy king, as he did the last one.

David Michael Green (pscdmg@hofstra.edu) is a professor of political science at Hofstra University in New York.

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