World (31 July 1999)
"What is government itself," wrote James Madison, "but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
In these four sentences, the father of the American Constitution gave terse expression to the problem faced by all government in a fallen world. We can put it more tersely still. Because people sin, they must be ruled; but rulers also sin. How can we make government uphold justice and promote the common good when holiness is in such short supply?
Let's call that The Question. As we approach the year 2000, we do well to ask whether the millennium now ending has brought us any nearer to an answer. Have the last thousand years brought any advances in the art of government?
The Question has been asked before, by Alexander Hamilton, and he thought the answer was "Yes." Like his colleague Madison, Hamilton put his confidence in the kind of government we call "free" or "republican" -- in government without a king, organized in such a way that the last word rests directly or indirectly with "the people," the enfranchised portion of the citizens. In the Greek city-republics, the citizens made their laws in person, meeting in huge Assemblies of the People. In the Roman republic, laws were proposed by an aristocratic Senate, but even so the Assembly could refuse to approve them.
Hamilton admitted that the ancient republics were not a pretty sight. He confessed in The Federalist, No. 9, that we cannot even read their history without "sensations of horror and disgust." They were "continually agitated"; they "vibrated" between the opposite poles of tyranny and anarchy; even their moments of peace were "overwhelmed by the tempestuous waves of sedition and party rage." The reason for this is that rule by "the people" tended to degenerate into bitter conflict among opposing groups of people. If solutions had not been found, the friends of free government would have had to give up the cause.
Ah, but solutions had been found, said Hamilton. So confident that he called politics a "science," he declared that "great improvements" had been made in it since ancient times. Principles of government were now understood which in those old days had been unknown or at best poorly grasped.
What principles were these? Hamilton was not the sort of fellow to make a reader guess at his meaning. Rather than merely alluding to "great improvements," he set them down in black and white: five bright ideas, representing the state of the art of statecraft. This list would be hard to better even today. What did it include?
1. Separation of powers. It isn't safe to put every governmental function into the same set of hands. For protection, lawmaking should be done by lawmakers, enforcement should be done by executives, judgment should be done by judges -- and the lawmakers, executives, and judges should be different people.
2. Internal legislative balances. We should never assume that every lawmaker will serve the common good, as he ought to, instead of serving his own special interest. For safety, then, the legislature should be arranged so that competing groups can check and balance each other. In England, for example, each house of Parliament reflected a different social class. In the same way, the Framers expected the American House and Senate to reflect contrasting sets of interests: long-term and short-term, national and state, well-off and middle class.
3. Judicial independence, secured by conditional lifetime appointments. Although it ought to be possible to get rid of a bad judge, a good judge needs security in office. Without it, he won't be able to render impartial judgment; in order to keep his job, he will have to play up to whoever is influential at the moment. For this reason, judges shouldn't have to beg for re-election or re-appointment. Instead they should remain in office unless removed by the legislature for misbehavior. The ancient republics hadn't figured this out; the modern ones did.
4. Election of legislative representatives. In ancient Assemblies of the People, making laws was everybody's job. Citizens didn't need to be re-presented because they presented themselves. That system may sound ideal, but it had four dangerous weaknesses. First, everybody's job tends to become nobody's job; each person pushes his responsibility onto all the others. Second, if everyone does take his responsibility seriously, the Assembly becomes too large for genuine deliberation. Third, wide-open public meetings give the foolish and ignorant majority the upper hand over the wise and experienced minority. Finally, beyond a certain size every mass meeting tends to be inflamed by the spirit of the mob. Better to have laws made not by the whole people, but by the best -- chosen by the people themselves.
5. Making republics as large as possible. This last improvement was Hamilton's favorite: He called it "the enlargement of the orbit within which such systems are to revolve." To the ancient republics, a large population and territory seemed to present a problem, because only the people who lived near the capital would be able to come to the Assembly. After the invention of representation, a large population and territory seemed not a problem but an advantage, because there would be too many special interests for any single interest to gain the upper hand. All of the different interests would simply cancel each other out, leaving nothing on which they could agree except the common good. That's why the Founders admired the United States, but mistrusted the States that composed it. Their territories and populations were just too small.
How should we judge Hamilton's list of improvements in statecraft? I would call the list good on the whole, but far too optimistic. Moreover, The Question of whether statecraft has progressed over the last millennium has another side too -- a side which Hamilton did not consider at all. First let's see how he was overconfident, then let's think about what he left out.
The separation of powers was a good idea while it lasted, and I wish we could get it back. Why did we lose it? Because Congress wanted to micro-manage the economy, but hadn't the time to do the job itself. To solve this problem it invented a host of regulatory agencies to do the job instead. These agencies are neither beast nor fish nor fowl. Acting like legislatures, they make rules; acting like executives, they enforce rules; acting like courts, they judge the disputes to which their rules give rise. Madison wouldn't think twice before condemning such an arrangement. He called the accumulation of all three kinds of power in the same hands "the very definition of tyranny," and held that if it ever happened, "no further arguments would be necessary to inspire a universal reprobation of the system."
Internal legislative balances were a good idea too, but the House and Senate are much less different than the Framers intended. The fact that senators were appointed by state legislatures was supposed to make them more attentive to the states, but that was changed by the Seventeenth Amendment. The fact that representatives had a shorter term of office was supposed to make them more attentive to the voters, but that was changed by continual reelection. The fact that senators have a longer term of office was supposed to make them resistant to passing fads, but that was changed by opinion polling. Why bother having a bicameral legislature if each chamber resembles the other? For bicameralism to have any point, each one must be sharply different.
Judicial independence is a double-edged sword. On the one hand it helps judges to be impartial; on the other it makes it easier for them to substitute their own opinions for those of the legislature, making laws instead of just declaring what they mean -- yet another assault on the separation of powers. Although those who opposed the Constitution warned that judges would become too powerful, its defenders naïvely thought they would always be gentle and harmless. For example Hamilton wrote that the judiciary "has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment." Obviously, Hamilton hadn't seen what we have seen: judges who take over the administration of entire school districts, judges who try to push faith out of the public square, and judges who wipe out the abortion laws of all fifty states and get away with it. In our day, democracy is threatened by kritarchy: the rule of the people, by the rule of despotic judges.
Election of legislative representatives still goes on, but it hasn't worked out quite as it was expected to. The Framers really thought that voters would cast their ballots for the wisest and most virtuous candidates they could find. To keep crooked candidates from tempting them with bribes, they made electoral districts large; that way there would be too many votes to buy. Alas, bad men have merely found a more efficient mode of bribery. These days, they pay for votes in promises instead of cash. Elect me, and I will propose a law giving a benefit to your class or group at the expense of all the others! There is another problem too. Although our representatives make more and more laws, in another sense they have less and less to do. Nearly all of the important decisions about how to organize our public life have either been taken over by the courts or pushed off onto regulatory agencies. The bizarre result is that although the legislature retains the power to do harm, it has less and less power to do good. We don't really need a lot of laws, but representatives do need authority to make the few that matter.
Making republics as large as possible has not been a cure-all either. Yes, it's true that a large territory with a large population harbors a great variety of special interests. But this great variety doesn't guarantee that all the special interests will cancel each other out. More often they play the game "You vote for my special-interest bill, I'll vote for yours, and the public can just get lost." Besides, the vigor of self-government requires face-to-face communities, in which citizens can be neighborly among themselves and familiar with their public officials. The larger the scale on which politics takes place, the harder this is to achieve. Perhaps we should be less scornful of the thousands of little republics in the states and cities. We need not always be looking to Big Mama in the nation's capital.
I said earlier that The Question of whether government has progressed over the last millennium has another side which Hamilton did not consider at all. Let me correct that statement: it has two other sides. We need to look at them both.
First is something which Hamilton couldn't have considered, because it came after his time: not an improvement in the art of government, but a perversion of the art of government, hideously unlike anything that the ancients had ever imagined. I mean totalitarian dictatorship. The ancient world had often suffered tyranny, of course: arbitrary rule by a tiny elite which was answerable to no one but itself. Totalitarian dictatorship was that, but much more. It was new, different, and far more terrible. The ancient tyrants had aimed at the satisfaction of their appetites, not the fulfillment of their ideologies. Their goal was to stay in power, not to create a New Society. They ruled by frightening people, not by controlling their minds. They stayed in power by means of bodyguards and soldiers, not mass political parties. And they killed their political opponents by the hundreds and thousands, not the millions and tens of millions.
Second is something which Hamilton could have considered, but didn't. The greatest "improvements" in the last thousand years of government haven't been new political arrangements, like judicial independence and legislative representation, but new ideas. To speak more precisely, they have been old ideas, newly applied to government. Hamilton did recognize one of them: The idea that we are fallen creatures, so that not even the best rulers can be trusted with unchecked power. Yet he failed to give credit to a host of others.
I mean ideas like these: Even the weakest is made in God's image. Even the strongest is under God's judgment. Even the worst may be redeemed.
And these: Justice must be tempered by mercy. The moral law is the same for all. The end does not justify the means.
And finally these: We cannot save ourselves. We cannot bring heaven through power. Salvation belongs to our God.
These ideas are the greatest "political" developments of the millennium. Not that the constitutional arrangements which so impressed Hamilton are unimportant: They are. But it is the conviction of the truth of these ideas which enables such constitutional arrangements to work from time to time, and it is the loss of this conviction which enables them to be twisted to evil ends. The difference between a free republic and a totalitarian dictatorship is not just in our constitutions, but in our minds.