Wednesday, April 21, 2010

Fame, Celebrity, and the Constitution

In Federalist #51, explaining how the constitutional scheme of securing liberty through the separation of powers would actually work, James Madison wrote that "the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others." (my emphasis) While more than 200 years later the "constitutional means" endures, I have come to a place where I wonder, and worry, whether or not the "personal motives" upon which Madison counted remain in sufficient supply.

Presently, the Senate is debating Connecticut Democrat Senator Chris Dodd's Financial Reform Bill. The bill is supported by the Obama White House and the President traveled to New York yesterday to encourage its passage. The bill, as it stands, is being challenged for several reasons, but the one that caught my attention was captured in a comment by otherwise supportive California Democrat Congressmen Brad Sherman. In an interview with POLITICO he conceded that there were several problems with the bill and that among them was the fact that, "The Dodd bill has unlimited executive bailout authority." (My emphasis again)

I'm fairly certain this flinching on Congressman Sherman's part will be the exception rather that the rule among most congressional Democrats. But before you conclude this will be yet another broadside on my part against liberal Democrats, as necessary as that always is, you should know that I'm actually curious to see whether any congressional Republican will resist the bill for reasons other than those ultimately informed by partisanship? No, it's more than even that. I'm interested to learn whether or not any congressman or senator of either party will object to the bill in the first instance simply because it relinquishes too much congressional authority to the executive branch?

This willingness, at times even eagerness, by the Congress to cede all or part of its constitutional authority is troubling to me and has been for some time. For years, conservatives have complained about the growing power and practice of regulatory agencies to effectively legislate by fiat. Those agencies, empowered as they are by legislation that is deliberately vague, too often simply make up the rules as they go and as they see fit. It is only when they go too far, imposing arbitrary and capricious environmental regulations, for example, and are met with a loud and sustained public backlash that the legislature becomes sufficiently motivated to reassert its authority.

And this is a problem that goes beyond only those cases where the legislature relinquishes authority to the executive branch. The passage of that affront to the First Amendment that is the McCain-Feingold Campaign Finance Law was essentially an abdication of responsibility by both the Congress and the White House to that third constitutionally separated power of government, the judiciary. Many at the time thought the legislation not only ill-conceived, but unconstitutional as well. But it was passed and signed into law nevertheless with the hope that the Courts would eventually rule as such and overturn it. (Alas, to this point anyway, the results of that gutless gambit have been regrettably mixed.)

Why is this happening? Don't misunderstand. I'm not questioning why so few seem willing to make the principled case and argue that this kind of relinquishing of authority is unconstitutional, although that would be welcome nonetheless. Madison's "constitutional means", as I said before, remain currently in place. What I am referring to is the apparent deficit of "personal motives" to resist.

Founder Alexander Hamilton, famously wrote in Federalist #72 that, "The love of fame [is] the ruling passion in the noblest minds." The quote became additional fuel to the already smoldering fires that were questions about Hamilton's real ambitions. (That calumny, by the way, is admirably refuted in Stephen Knott's Alexander Hamilton and the Persistence of Myth.) And, to be sure, there is a disordered and overreaching love of fame that can be dangerous, a very real threat to the republic and the liberty its purpose is to secure. But its absence, given our constitutional scheme, may also be dangerous, and most certainly is deleterious to its proper functioning.

Where, now, is that "love of fame", or those "personal motives" that once defined our executives, legislators, and judges and made them jealous of their prerogatives and resistant to encroachments on their authority regardless of party loyalty or ideological fidelity? Have we produced a generation of political leaders with ambitions so small that there is really nothing in them to counteract, or, if there is, nothing with which to counteract them? Is the guarantee of what is essentially nothing more than an ephemeral celebrity, Warhol's infamous "15 minutes", enough?

If so, then we should not be surprised when our government functions in a manner different than that which it was designed. To work as it was intended, we must look for leaders with the "personal motives" upon which Madison rested much of his case. Those motives, ideally, would be noble. But they needn't be. These motivations may be misplaced, they may even be base. But they absolutely must be large. Or at least a lot larger than they presently are. We live in age unfortunately filled with "men without chests." Is it too much to hope that in a republic of 300 million people at least a few who can be described otherwise abide?

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