If Not Washington, Then What?

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.

The Documentation Problem

The first work of science fiction and fantasy author Roger Zelazny which I read was his short story collection – turned into a novel of sort by means of the useful anachronism of supposing the protagonist of each to be the same character – My Name is Legion.  Although not one of the better of his works, I got a copy of my own when I ran across it in a used book store, because it had once caught my imagination, and I had quickly found his Amber series and other works – but my literary interests are not exactly the point right now.  The protagonist is, depending on your point of view, either nameless or over-named – and unidentifiable, having managed to erase his records.  In the 1970s Zelazny had already extrapolated something very like our “Information Age”: “Everybody, nowadays, has a birth certificate, academic record, credit rating, a history of all his travels and places of residence and, ultimately, there is a death certificate somewhere on file.”  The particular quasi-villain he imagined has not, that I know of, yet actually emerged – “[S]ome people set out to combine them.  They called it  a Central Data Bank.” – but I am not sure it is for want of trying (consider the recent attempts of the United States government to collect schools’ testing data, for instance), and the reason put in the mouth of the chief organizer – “… ‘[S]ome means has to be found to record and regulate… a society as complex as ours…'” – sounds presciently familiar.

Zelazny’s protagonist begins as an enthusiastic programmer for the project – but with time and promotions his worries grow.  It is really incidental to the main story, an explanation of why he is an unidentifiable person, so I will risk the spoiler and simply state that he gains a position of responsibility such that, with all records centralized, he can remove all records of himself.  An excellent solution – presuming he never comes to the attention of the authorities, otherwise his existence-on-record begins as a criminal one, starting with the misdeed of not having existed officially before being apprehended.

Thus far Zelazny: now my train of thought picks up.  I have similar misgivings about what we now call “Big Data”, especially when it combines with the government.  But I do not quite think the solution of erasing all paper trails is the correct one – or viable, for that matter.  What we need to do is to formulate some principle for who needs to know what, and what constitutes informational overreach.  There are, roughly speaking, two legitimate general reasons for personal information to be shared: the private and the public.  A doctor or investment advisor or lawyer will want to know quite a bit about me – or, as the thrillers have it, be paid far more handsomely than usual for working without that information.  On the other hand, if I am responsible for a large project or to a large number of people, they will also rightly want to know quite a bit about who I am.  But in neither case, as I simply exist, is it your business or the policeman’s business or anybody’s, really, what my name is or what I am doing.

Or where I come from.  Now, we have certain kinds of identification which exists in a sort of preventative sense.  I have a driver’s license primarily so that, when I drive, the police know who I am if I crash or even run a red light – and who they need to find if the fine does not get paid.  I am registered to vote so that, if I feel like voting and show up to do so, the election officials have some record of me as well.

What I find curious about this, however, is that so much of our information provision relies on previous information provided.  Virtually never do I hear the obvious suggestion made that if someone shows up with no documentation, the thing for the party concerned to do is to document them.  We know how to do this when we know we are starting from scratch – the pictures of voters waving their ink-stained hands in celebration in the new democracies in the Middles East have stuck with me, regardless of how poorly those governments may at this point seem to have turned out.  The thing about fingerprints, too, is that they are personal – unique in fact, or all but, as I understand it.  They’re also fairly permanent – though I am told they can be changed or removed, painfully – not dependent on an individual’s organizational skills when moving.  They also do not depend on the whims of an Office of Existence Certification somewhere as to what goes on the form.

All of which is circling around the point I want to make: it does not much matter whether my neighbor is from Pennsylvania or Paraguay.  The extent to which I want to see immigration controlled is pretty much for the relevant agencies to take down sufficient information for future identification and to confirm – as far as is possible – that the person is not wanted for actual crimes somewhere.  Maybe that really would mean a central data bank of fingerprints and such somewhere, that states’ police or other authorities could access.  But that’s about it: all this “qualification” and “vetting” and so forth has me rather dubious.

The question of voting, or other benefits attached to citizenship, is rather different.  Citizenship is not equivalent with existence, even for those of us fortunate enough like Paul to have been born citizens of a fairly stable entity.  A nation can make citizens: it does not make persons, even or especially when like China it attempts to end them.  I said before that my neighbor – let him be called by the everyman moniker Joe – could be from Pennsylvania or Paraguay with no difference made to me.  As far as existence goes, this is true: but if Joe is from Paraguay, I would like him to have some introduction to the American system first if he wants to vote, or have public monies assigned to him in the form of welfare.  If he desires, in short, to be part of the public system he ought to identify himself with it publicly.

To put my position briefly: I am opposed to most restrictions on movement, travel, and immigration, but am in favor of making and keeping formal divisions between citizens and non-citizens.  Details, of course, need somewhat more thought.