The Problem of Legal Authority
Perhaps the most unfortunate fact about the current government of the United States is that a vast amount of the work the Federal government does is illegitimate. The Constitution of the United States lays out certain tasks for that government to perform, and implies – in the Tenth Amendment specifically states – that other powers belong to and duties are to be performed by the individual States or by the people.
Most markedly, when compared to the work we find the Federal government performing, the powers assigned to it do not include any form of welfare administration, or care for health of persons or communities, or involvement in education, or provision for the arts. This is to say, by current stated law all such programs ought not to have been brought into being and we ought to desist from them, for the sake of law and honesty.
It is not to our credit that, in political engagements these days, it is relatively rare to hear an official or candidate make this argument – and lamentably, rarer still that one who does is taken seriously. However the anticipation of doom brought on by suggestions to restrict these programs for any reason whatever are as discreditable. The majority of the programs commonly mentioned are not even particularly old; while certainly care ought to be exercised in their dismantling, the mere fact of their removal, once effected, will not result in catastrophe but force a return to other – I believe better, but certainly more legal – ways of providing these things.
It is sometimes argued, in the term “living Constitution”, by torturing of legal phrases, or by similar arguments, that the Constitution is merely a guideline and has no definite authority, and certainly not an authority to restrict government – that government has the authority at all times to do what is necessary. This is untenable: applied beyond the Constitution it undermines all law whatsoever – and if applicable to first principles, surely it applies to lesser regulations.
The Process of Restoring Legitimacy
I will not discuss here the various ways different facets of this over-expanded Federal involvement should be curtailed. I also am not going to discuss – which is anyway more speculative – the various way I see this underlying dishonesty affecting the rest of our government, although I think it does. I am instead going to discuss the three parts of a reform process I think are essential:
I. Focus on State and Local Responsibilities
One of the major arguments for the necessity of Federal involvement is that in certain areas it is alleged that State governments are unable or unwilling to perform the work necessary. In most cases I know of, “unable” is not accurate; “unwilling” may be. At this stage of illegitimate centralization, it seems to me likely that states will have stopped attempting to manage certain things. In other areas such as education policy we know that what has resulted is massive, often conflicting, layers of regulation from every level of government which has any excuse to become involved. To the degree the Federal government is removed from authorities it has usurped, attention must be paid at more local levels to maintaining and improving what services ought legitimately be publicly performed.
II. Understand Government as Part of Society
This is a “middle of the road” principle. The progressive inclination is to treat government as the pinnacle and ultimate voice of society, whether justified as “the people’s will” or “the knowledge of the experts” or simply by default. The progressive needs to remember that any society does not function purely because the people at the top make it go. On the other hand, in America the conservative tends to view any government – though strangely, not most government agents apart from the IRS – as inherently evil. They – we – need to remember Chesteron’s aphorism, that “politeness” and “policeman” have the same root and that both are necessary to maintain political society. Government can be overreaching and can do evil. However, it is not necessarily bad, but is a good thing and is instituted for justice and the common good.
III. Legitimize What Should be Kept
I have argued above that the Federal government is doing certain things it ought not because it has no right to those powers. However, it may be the case that – because of changes in ideology and technology or because of historical reflections – certain things it is doing right now illegitimately, which were brought about in a perceived crisis but without the necessary legal authority, are good ideas and ought to have been implemented properly. To legitimize these functions would require Constitutional amendments, but this is not too high a bar: we have had plenty of these – one within my lifetime, even. This concept is not mine, although I have adopted it as it seems sound. It was introduced to me by Anjali Reed Phukan, whom I talked to (incidentally and at a completely unrelated event) while she was a candidate for Maryland Comptroller in 2014. However, my expression of it may not match hers: among other things, the fields for Federal action which I view as potentially legitimate are somewhat broader than those she proposed then. While I will not in this piece examine the subject exhaustively, I believe the amendments necessary involve at the least the following: first, some general regulations for the Federal bureaucracy, such as review by elected officials of regulations affecting the public; and second, a formal expansion (if necessary) of fields within which the Federal government is authorized to act.