Clause 61: The Pushback Blog

Because ideas have consequences

US Constitiution 1.1

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In 1979, Theodore Lowi released the second edition of his book The End of Liberalism: The Second Republic of the United States. Lowi teaches at Cornell and would be characterized as a liberal; for example, he advocates government planning. However, he is also a proponent of the rule of law. The evolution of the political processes away from law and representative government toward bargaining and interest-group government began to trouble him by the time he wrote the first edition of the book ten years earlier.

Where contemporaries saw government departure from formalism as pragmatic, Lowi saw it as corrupt. Where reality deviates from formalism, we find arbitrariness, influence-peddling and injustice. He wrote the best defense of political idealism I have seen:

The gap between form and reality gives rise to cynicism, for informality means that some will escape their fate better than others. There has, as a consequence, always been cynicism toward public institutions in the United States, and this, too, is a good thing, since a little cynicism is the parent of healthy sophistication. However, when the informal is elevated to a positive virtue, and when the gap between the formal and the informal grows wider, and when the hard-won access of individuals and groups becomes a share of official authority, cynicism unavoidably curdles into distrust. Legitimacy can be defined as the distance between form and reality. How much spread can a democratic system tolerate and remain both democratic and legitimate?
The End of Liberalism, p. 297.

Although he did not use the term, the mechanisms that Lowi describes are that of corporatism: public-private partnerships in rule-making and governance. Although Lowi did not name it, he described it well enough:

The state grows, but the opportunities for sponsorship and privilege grow proportionately. Power goes up, but in the form of personal plunder rather than public choice. If would not be accurate to evaluate this model as “socialism for the rich and capitalism for the poor,” because many thousands of low-income persons and groups have provided within the system. The more accurate characterization might be “socialism for the organized, capitalism for the unorganized.”
Ibid, pp. 278-9.

For the second edition, Lowi reverse engineered a new constitution for the government from actual practice, in an attempt to highlight the spread between form and reality.

There ought to be a national presence in every aspect of the lives of American citizens. National power is no longer a necessary evil; it is a positive virtue.

Article I. It is the primary purpose of this national government to provide domestic tranquility by reducing risk. This risk may be physical or it may be fiscal. In order to fulfill this sacred obligation, the national government shall be deemed to have sufficient power to eliminate threats from the environment through regulation, and to eliminate threats from economic uncertainty through insurance.

Article II. The separation of powers to the contrary notwithstanding, the center of this national government is the presidency. Said office is authorized to use any powers, real or imagined, to set our nation to rights by making any rules or regulations the president deems appropriate; the president may subdelegate this authority to any other official or agency. The right to make all such rules and regulations is based upon the assumption in this constitution that the office of the presidency embodies the will of the real majority of the American nation.

Article III. Congress exists, but only as a consensual body. Congress possesses all legislative authority, but should limit itself to the delegation of broad grants of unstructured authority to the president. Congress must take care never to draft a careful and precise statute because this would interfere with the judgment of the president and his professional and full-time administrators.

Article IV. There exists a separate administrative branch composed of persons whose right to govern is based upon two principles: (1) the delegation of power flowing from Congress, and (2) the authority inherent in professional training and promotion through an administrative hierarchy. Congress and the courts may provide for administrative procedures and have the power to review agencies for their observance of these procedures; but in no instance should Congress or the courts attempt to displace the judgment of the administrators with their own.

Article V. The judicial branch is responsible for two functions:
1. To preserve the procedural rights of citizens before all federal courts, state and local courts and administrative agencies, and
2. To apply the Fourteenth Amendment of the 1787 Constitution as a natural-law defense of all substantive and procedural rights.
The appellate courts shall exercise vigorous judicial review of all state and local government and court decisions, but in no instance shall the courts review the constitutionality of Congress’ grants of authority to the president or to the federal administrative agencies.

Article VI. The public interest shall be defined by the satisfaction of the voters in their constituencies. The test of the public interest is re-election.

Article VII. Article VI to the contrary notwithstanding, actual policymaking will not come from voter preferences or congressional enactments but from a process of tripartite bargaining between the specialized administrators, relevant members of Congress and the representatives of self-selected organized interests.

How did he do? How closely did he bring the form of his constitution to matches what actually happens?

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Written by srojak

October 15, 2016 at 2:48 pm

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