Buy my e-book A Conspiracy of Wizards

One of the great paradoxes of American history and society is that we are simultaneously a country founded by religious zealots committed to the promotion of religious zealotry, and a country established on Enlightenment principles committed to the creation and preservation of a secular Constitutional Republic. In an honest debate over which direction best serves current and future generations of Americans and humanity, I personally believe that there is no contest: Religious fanaticism and Theocracy are the authors of untold horrors in the world, and it is not a model to be emulated.

It’s true, of course, that some secular “religions” have produced the same horrible outcomes (Bolshevism is the iconic example), which leads to the wise conclusion that it is not the presence or absence of some conceptualization of the divine that renders an ideology destructive to human welfare, but rather merely an aura of absolutism, a belief that the complex and subtle reality of the world has been perfectly distilled into an easily grasped human ideology, and that no further discussion is required. It is not religion that is at fault, but rather blind dogma, absolute faith in some reductionist representation of how the world works and how we should interface with it.

Identifying this problem is easier than solving it. Humans have no choice but to conceptualize the complex and subtle reality of which we are a part in manageable ways, to reduce it to images and forms and packages that we can understand and work with. Our most sublime intellectual achievements do this as surely as our most shallow superstitions. But what distinguishes our most sublime intellectual achievements is that they are products of a process through which our imaginations and our intellects are disciplined and evolve, whereas our most shallow superstitions are ossified products of ancient imaginations entrenched in our consciousness and as insulated as possible from the continuing lathe of reason and imagination. One modality is based on skepticism, on critical thinking, and the other on Faith, on blind acceptance of given “truths.”

(The same holds true for modern dogmas, sometimes intellectual and frequently political ideological, as for archaic superstitions: The greater the extent to which adherents dogmatically believe substantive tenets, the more in the mode of “religious fanaticism” they are; the more they commit to on-going procedures –facilitated by wise uncertainty– which favor reason and humanity, the more they are contributing to the progress of both human consciousness and the social institutional and technological landscape that emanates from it.)

The dilemma in America is not that we are in a debate over these two modalities of thought, but rather that one of these two modalities precludes such a debate. It is not possible to engage in a debate with blind dogma insulated from reason and information. But worse yet, not only is such a debate precluded, but those who preclude it play a shell game with these two very different modalities of thought, turning the U.S. Constitution, which is so much in the tradition of reasoned engagement with the complex and subtle world we live in, into a quasi-sacred document, stripped of its actual subtlety and wisdom, and selectively understood and interpreted in service to the blind dogma that they favor.

They claim to be champions of the Constitution, while in reality being its most virulent enemies. What the Constitution represents first and foremost is rule of law, and what rule of law is first and foremost is a procedural discipline, a commitment to making decisions about legality through processes established by both the Constitution and by the challenge of implementing it in a real world more complex than any such document can fully anticipate.

But rather than accept that we have a real Constitution, written by mere human beings in a language full of ambiguities and imprecisions and in a time which framed their understandings and emphases, a document that Constitutional Scholars debate and study and spend dedicated lifetimes trying to fully understand, in the context of an ever-changing world, these would-be theocrats insist that only their superficial and frequently poorly informed interpretations, sometimes completely at odds with any literal interpretation of the document itself, must prevail.

If one points out to them, as I have sometimes done, that Article I, Section 8, Clause 1 of the U.S. Constitution states that “Congress shall have the power to lay and collect taxes…to pay for the general welfare,” and that that is a rather broad power that, if literally interpreted, means that there is no limitation on what Congress can tax and spend in service to, as long as Congress can make a case that it serves the general welfare, they answer that there must be limits on it, because, after all, isn’t such a limitation what their dogma insists upon? They love the Constitution until it blatantly contradicts their ideology, at which point it is, in their view, the Constitution rather than their ideology which must yield. That is the very essence of anti-Constitutionalism.

(The limitation on the tax-and-spend power of that clause is, of course, that if voters don’t like the way Congress is exercising it, voters can fire them and hire representatives who do so more in accord with their wishes. The Constitution, drafted to strengthen rather than weaken the federal government, was designed, as explicitly elaborated on in The Federalist Papers, to overcome the collective action problems rampant under the Articles of Confederation that preceded it. It’s no accident that the Founding Fathers included this ample power to tax and spend in service to the general welfare.)

Of course, as many point out, well-reasoned and well-informed arguments fall on deaf ears, because people in general, and religious and quasi-religious fanatics in particular, do not form their opinions according to the dictates of reason applied to evidence –or in service to humanity rather than to their own national, racial, class, ethnic, etc., in-groups– but rather on the basis of emotional appeals to the frames and narratives which form our consciousness and our identities. When I argue that we should all strive to be reasonable people of goodwill (toward all humanity), and others respond that that won’t work because there are those who lack reason and lack such goodwill, I reply that the irrationality and belligerence (toward humanity) of others does not imply that we must be irrational and belligerent (toward humanity) as well.

I emphasize “toward humanity” because the misconception is common, among both those who tend to agree with me on substantive positions and those who tend to disagree, that goodwill toward humanity precludes hurting the feelings of those who preach ideologies or behave in ways which are antagonistic to humanity. It doesn’t. (Those on the right embrace this fallacy to discredit those challenging the substance of their ideology, by claiming that anyone who criticizes their ideology is not acting with goodwill toward humanity; those on the left embrace this fallacy to discredit the challenge to their preference for righteous rage over effective advocacy, arguing that since goodwill toward belligerent fanatics is ineffective the ideal of goodwill toward humanity is irrelevant to political discourse.)

Goodwill toward humanity does not mean that you cannot intervene militarily to stop a genocide, even though shooting at people (in a military action to stop a genocide) is not really the best expression of goodwill toward them personally. Nor does goodwill toward humanity preclude one from hurting the feelings of someone preaching some hateful ideology by sharply criticizing their ideology, and doing so in terms which are logically and emotionally compelling and thus, to them, offensive. To the contrary, goodwill toward humanity requires it, not gratuitously, and not in service to one’s own emotional gratification, but rather in service to moving the zeitgeist gradually in a desired direction.

For those who believe that moving the zeitgeist in a desired direction is impossible, all I can say is: Glance back across the sweep of human history, and you will see that it has been done before, and is done constantly. Scientific methodology didn’t exist half a millennium ago, but has grown in prominence over that span of time, in large part due to human effort, and frequently against human resistance. That thread of history, in fact, is the archetype of what I’m advocating. We have, historically, increased the salience of reason and goodwill in human affairs, by developing scientific methodology and legal procedures, and by developing humanistic philosophies which identify the rights of individuals and the value of various forms of egalitarianism. Extending these historical processes is what Progressives should be most committed to. And, by that definition, all reasonable people of goodwill should be Progressives.

(I’m tempted to dump the word “Progressives,” though, because, of course, the ideology that goes by that name is not precisely the ideal ideology I have described. True “progressivism” would involve reducing the emphasis on precipitous substantive certainties, and increase the emphasis on ever-evolving procedural disciplines developed for the purpose of realizing an ever-evolving humanism.)

It’s true, of course, that merely making well-reasoned and well-evidenced arguments is not the primary way in which the zeitgeist changes. We think in frames and narratives, and it is through those frames and narratives that change occurs. But one frame which almost all modern Americans embrace is that they are reasonable people, that their beliefs are what are supported by reason and evidence, that in any debate between equally competent debaters, their point of view inevitably wins. Another frame common to almost all modern Americans is that each believes themself to be a person of goodwill, a person whose ideology is the ideology which best serves others. Few Americans explicitly applaud Scrooge before the transformation and condemn Scrooge after the transformation; almost all define themselves as being a reasonable person of goodwill.

One way to challenge these frames is to ply the lever of cognitive dissonance, to make the discrepancy between the narratives that people are subjectively applying to themselves and the narratives that they are “objectively” living as inescapable as possible. And that means not only throwing well-reasoned arguments in their face, but rather throwing in their face well-reasoned arguments that challenge not particular policy positions but, more importantly, their own fundamental identity.

The way in which I habitually do this is, in every conversation in which a blind and belligerent dogma is being favored, to ask the person favoring it if they would be willing to set aside for a moment our substantive disagreements and agree with me only that we should all strive to be reasonable people of goodwill working together in a complex and subtle world to do the best we can in service to humanity. Some leap to agree; many do not. But almost all recognize, on some level or another, that they can either agree with this premise or suffer the cognitive dissonance of realizing that they are unwilling to.

I strongly recommend that this one, simple commitment become our core ideological identity and the platform that we most consistently and relentlessly advocate. It is a position which most find difficult to denounce, and to which many who do not consider themselves “progressives” would gladly gravitate. It is the basis for all well-conceived progressive policies, the standard by which they should be measured, such that it is this ideal rather than anything else we currently believe that should hold sway. And it is a shared foundation to which we want to attract as many people as possible (from all across the ideological spectrum).

The catalyst for this essay was an exchange on Colorado Confluence’s Facebook page ( The exchange captures much of what I’m talking about, and expands upon some of the ideas I’ve presented here, so I am reproducing it below. It started with my posting a link to this Economist article on the relationship between religion and politics in America ( accompanied by this comment from me:

A nice summary of the disingenuity of Santorum’s remark about people of faith being banished from the public square (which is both the opposite of the current reality, and not advocated by any mainstream public official past or present), and the complex relationship between faith and politics in America.

One thing the article doesn’t note is the tension between the “Free Exercise” and “Establishment” clauses of the First Amendment: Government can neither inhibit nor promote any particular religion, which leaves a very narrow band between the two in which to operate.

Many religious zealots in America, for instance, don’t realize that, while it is unconstitutional for a school to promote or sponsor prayer on school grounds, it is also unconstitutional for schools to prohibit prayer on school grounds, as long as it is done in a manner which does not disrupt the normal functioning of the school and does not appear to carry the “imprimatur” of the school (e.g., does not use the school PA system, or occur as a part of a school event). It is, of course, the right balance…, except for theocrats who don’t want freedom of religion but rather a tyranny of their own religion.

For more on religion, see “Is Religion a Force for Good?” (, “A Dialogue on Religion, Dogma, Imagination, and Conceptualization” (, “Do Deities Defecate?” (, and “Discourse, Diderot, and Deity” (

A woman named Dina then commented “wow, drink the cool aid (sic) much?” This was my response:
Okay, I’ll bite. What Kool-Aid are we talking about? If we’re invoking cult leader Jim Jones and the mass suicide he orchestrated (which is where the term comes from), then it would make more sense to use it to refer to those who are defending dogmatic beliefs (particularly religious beliefs) against a commitment to a more open and moderate secularism. But such reversals of meaning, though ironic in the extreme, are also remarkably common.
She then replied, “”‘socialism,’ ‘secularism,’ let’s call the whole thing off!” To which I responded:
“Secularism” and “Socialism” are not the same thing. Our Constitution essentially guarantees a secular form of government by not only guaranteeing to each the freedom to practice their own religion (“The Free Exercise Clause” of the First Amendment) but also prohibiting government from favoring any one religion over others (“The Establishment Clause” of the First Amendment). For an ideological faction whose adherents generally fancy themselves the defenders of the Constitution, it’s remarkable how eager some members of that faction are to disregard and undermine that very same Constitution in both letter and spirit.

The word “socialism” has been applied very broadly, especially in service to a particular ideological agenda, to societies that are widely divergent in form. At one extreme are a group of societies that are characterized by autocratic, oligarchical governments that completely dismantle market economies and replace them with command economies. These have all been horrible failures. At the other extreme (in normal usage) are the “democratic socialist” countries such as some Scandinavian countries have at times been, and these have been by and large quite successful (robust economies, excellent quality of life, extensive individual rights, and far more equitable than average).

More generally, all modern developed nations are, in reality, a hybrid of robust market economies, popular sovereignty, large administrative states, a strong commitment to rule of law, and a thoroughly secular (non-religious) and civil (non-military) government. All nations that participated in the post-WWII economic boon were characterized by this combination of institutional qualities, bar none. To call them “socialism” would mean that the word “socialism” must be understood to encompass both a certain category of failed states, and the unique category of the most successful states in world history (i.e., all successful, fundamentally capitalist countries).

The point of using the word “socialism” to describe both is to obfuscate the fact that some of the states being so labelled comprise the entire set of modern prosperous, free nations on Earth, and to imply instead that all states so labelled actually belong to the set of failed states known by that label. In other words, it is an attempt to relabel all modern, prosperous, free nations as something other than what they are, and to pretend that a proposed extremist form that has never described any actual successful nation on Earth is what defines that category instead! It is a triumph of meaningless, cultish rhetoric over anything even vaguely resembling reality.

There are legitimate debates to be had about the issues that divide us, about the right balance between public investment in human and material infrastructure and laissez-faire market dynamics, about the degree to which we should be committed to maximizing equality of opportunity and how to go about it, about to what extent we should try to consider possible future consequences of current policies and to what extent we should focus exclusively on present outcomes, about, in general, what works and what doesn’t work, what best serves our liberty and prosperity and well-being and what doesn’t. My fondest hope and highest aspiration is that we become a nation that has those debates, as reasonable people of goodwill, wise enough to know that none of has all of the answers, working together in a complex and subtle world to do the best we can; to be, in other words, a nation of people who decline to drink various flavors of “the Kool-Aid,” and choose to be thoughtful, open-minded, and constructive citizens instead.

The purpose of my blog, Colorado Confluence, and this Facebook page that links to it is to promote the application of reason and imagination to evidence and accumulated knowledge and understanding in service to humanity. All points of view, all arguments, are welcome. If you have an actual argument to make, please feel welcome to make it: Understanding and insight are served by robust debate (the opposite of “drinking of the Kool-aid” of insulated dogmas blindly adhered to). The informationless, unreasoning, and generally meaningless one-liners about “drinking the Kool-aid” of secularism (ironically completely inverting the meaning of the phrase), and equating “secularism” and “socialism” in a catchy cliche about “calling the whole thing off,” are modalities best suited to other kinds of forums, offered for other purposes.

That got her goat! Here’s how she replied:
well, I guess you told me, huh? I will leave the rest to your ‘enlightened’ state of mind! My point being that your insulting comments regarding the disingenuousness of Santorum feed into the rhetoric we hear everyday in the main stream media. There has been a war against Christianity in this country for decades..actually, around the entire world! Mr. Bloomberg in NYC should heed your words about the ‘imprematur-lessness (sic) of churches who have used public buildings for worship when school is not in session….Other public entities would be smart to heed these same words when they are insistent on shoving other religious tenets down our throats by installing foot washes and prayer rooms in their institutions! IMO, secularism and socialism go hand in hand and both ideas are ruining this great country…Our Forefathers must be turning in their graves! God Help the USA! Goodbye….
And, finally, my response to that:
The NYC law prohibiting the use of public schools for religious purposes is currently in the courts, where that balance between Free Exercise and non-Establishment will be struck. The main problem is that the congruency of non-school use days to some religious holy days and not others (Jewish and Christian, but not Islamic) may be construed as an implicit favoring of those religions that [have] their sabaths on the weekend. It’s a subtle question; my guess is that the courts will find that the NYC law is unconstitutional, and I would agree with that decision.

Your comments about the allowance of Islamic practices as well as Christian and Jewish, on an equal footing, merely goes to demonstrate your theocratic rather than constitutional orientation. Islam, according to our Constitution, is neither to be privileged nor discriminated against, and, if we fall short at all as a nation, it is in the latter rather than former error, one which you are determined to increase rather than decrease. You are of a mindset that Christianity should be privileged, and that the failure to do so is a failure of our national conviction. But that simply is not how our nation is Constituted. We are not a theocracy; we are a Constitutional Republic.

What’s most remarkable to me about her last comment was the equation of adhering to the Free Exercise Clause of the First Amendment of the United States Constitution, permitting and accommodating the free exercise of non-Judeo-Christian religions, with “shoving (those religions) down (the) throats” of those who don’t adhere to them! The notion that Christians in America are more discriminated against than Muslims, that Islam is “shoved down the throats” of Christians but that Christianity is just one religion among many, in no way privileged and in no way seeking to be, is so incredibly ludicrous, it simply boggles the imagination that anyone could argue such a position.

Our national debates aren’t over whether to permit Islamic and Christian religious imagery to co-exist, but rather whether to continue to privilege Christianity in the ways that it has been historically privileged, to use exclusively Christian imagery and language in official displays and communications relating to holidays and other religious events. It is not that these would-be theocrats want no religion shoved down anyone’s throat, but rather that they want their religion exclusively shoved down everyone’s throat!

This isn’t just an issue of religious zealotry and hypocricy and anti-constitutionalism pretending to be the opposite; it’s one example of the more fundamental divide in American politics, one which tracks the left-right divide to some extent but not exactly, one which is where our focus should be as we work on both ourselves as individuals and the nation and world to which we belong. That divide is between ideologies which favor irrationality over reason, and belligerent tribalism/sectarianism over a commitment to humanity. The solution is not to remain entrenched in the struggle to ensure that our own substantive certainties prevail over opposing substantive certainties, but rather to promote a greater and more widespread commitment to procedures and attitudes which systematically favor reason over irrationality, and humanity over various forms of bigotry and belligerence.

Buy my e-book A Conspiracy of Wizards

Buy my e-book A Conspiracy of Wizards

I had an epiphany during a panel discussion of Lobato v. State of Colorado (the Colorado district court holding that the Colorado public school system violates the state constitutional requirement that the state provide “a thorough and uniform” public education system, and that vastly increased funding would be necessary to be in compliance with the state constitution) at the annual policy summit of CLLARO/CLF (Colorado Latino Leadership, Advocacy and Research Organization/Colorado Latino Forum): A constitution is unenforceable in a state that allows direct democracy, or what I call “government by plebiscite” (usually in the form of the initiative process, through which the polity can directly amend the constitution or pass legislation, entirely circumventing the state legislature), and therefore such direct democracy is ultimately incompatible with both constitutionalism and the rule of law.

The panel consisted of Lisa Calderon (the mother of one of the plaintiffs), James Eklund (an attorney for the state), Prof. Kelly Hupfeld (UC Denver Assistant Dean of the School of Public Affairs) and Liane Morrison (Executive Director of GreatEducation Colorado). Two of the panelists (Lisa Calderon and Liane Morrison) were advocates of and in agreement with the Lobato decision; one (Kelly Hupfeld) was academically fascinated by and apparently somewhat favorable toward the decision; and one (James Eklund) had the thankless and clearly not entirely heartfelt task of presenting the state’s opposition to the decision to an audience of progressives overwhelmingly on the other side.

The discussion revolved around the familiar issues of quality of education, deficiencies in funding, the constraining constitutional provisions of TABOR and the Gallagher amendment (which constrain Colorado state government taxing and spending power, and require the state to submit any proposed tax increases to the electorate for approval), and the question of whether the court overstepped its bounds and addressed what is properly “a political question” and therefore not within the competence of the court to address (a separation of powers issue). For the record, I’ll state that I’m agnostic regarding the central legal question involved in the decision (i.e., whether it was the court’s role to quantify in dollars what constitutes “thorough and uniform,” or whether that is a political question to be addressed by the state legislature), but wholeheartedly agree with the decision as a matter of public policy, and am glad to see it as a potential catalyst for much needed systemic change.

(As an aside, non-lawyers aren’t always familiar with, or interested in, the distinction between legal analysis, on the one hand, and social/political/economic public policy analysis, on the other. But this distinction is a vital one to constitutional government and the rule of law, and I think we’d be well-served to make it a more commonly understood aspect of our social institutional landscape, a goal, ironically, that could be more effectively met through a better-funded and designed public education system.)

Of the facets of Lobato directly discussed, the reference to TABOR and Gallagher comes the closest to identifying what I think is really the most essential issue implicated by this decision, though it was raised in too superficial and limited a way to identify that issue clearly. Some might take exception with this claim, arguing that the deficiency in school funding and subsequently in quality is the central issue, but I am not talking about the obvious and fairly easy to understand political ideological battle between those who, on the one hand, recognize that we have underfunded and underperforming schools, and those who, on the other, believe that less government is always better government (the latter delusion being one I address at length and in depth is a series of essays hyperlinked to in the fourth box at Catalogue of Selected Posts). Rather, I’m talking about the subtler and more structurally fundamental question of whether the rule of law and governmental accountability can exist in the absence of a government to be held accountable.

Though TABOR and Gallagher don’t eliminate government entirely, they do diminish its role sufficiently to raise this question, because compliance with the court order to dramatically increase public school funding is, in reality, virtually impossible for the government to accomplish without the electorate agreeing to it, and if there is no concise and identifiable population of people (e.g., the state legislature) that can be held legally accountable for refusing to obey the court order, how can the court order possibly be enforced? And if a court order mandating governmental compliance with the state constitution can’t be enforced, how can the state constitution be said to exist as a legally relevant and effective document? In other words, in circumstances when direct democracy makes the enforcement of court orders mandating constitutional compliance impossible, direct democracy is incompatible with constitutionalism and the rule of law!

Certainly, there are subtleties and complications involved in this analysis. Courts never have troops to enforce their orders, and I may be exaggerating to some extent the distinction between a state legislature choosing to ignore a court order and a populace choosing to ignore a court order. But, while the distinction may be less stark than I have made it, I think it still exists, and is still critically relevant: A state legislature consists of a very limited number of identifiable individuals who can be held directly responsible for violating a court order, while an entire electorate is comprised of a large population of ultimately anonymous individuals who can not be held directly responsible for defying a court order.

Many, perhaps most, court orders directed against governments require state expenditures to be carried out. Desegregation in the Civil Rights era certainly did, for example. Those who hold the purse strings are those who can be held responsible for either complying with or disobeying such court orders. If the purse strings are held too diffusely to hold anyone responsible, then such court orders are essentially meaningless, and therefore so are the laws they serve.

One can argue that while direct democracy is incompatible with a bill of rights which protects the rights of individuals from the vagaries of power, including the rights of minorities from the democratic power of majorities, it is not incompatible with a constitution, since a constitution need not include a bill of rights. A constitution might say, instead, that as long as majorities exercise their power according to a prescribed law, which is ultimately up to those same majorities to interpret, then the rule of law has been adhered to. But this is a sham rule of law, only marginally better than the “rule of law” created on the spot by the whims of a ruthless dictator (since even dictators hold power in part by dispensing favors to supporters who form with the dictator a ruling faction, and the tyranny of the majority is nothing more than such a faction that is at least one person –though never necessarily more than one person– larger than half the population).

In other words, such a “constitution” is merely a ruthless dictatorship of a bare majority over all others, always subject to the caprice of that majority, regardless of how that maj0rity might choose to exercise it. If such a majority decided to interpret its constitution to permit the execution on sight of everyone with green eyes, then that would be within the law as defined by this “constitutional” society. A law which protects only those who wield power, whether they are few or many, is no law at all, but rather naked tyranny.

In reality, constitutions not only protect minorities from majorities, but also majorities from themselves, since it is often the case that foolish fanaticisms, sometimes entirely organic and sometimes fabricated or fanned by and for a minority with resources to influence popular opinion, inform mass decisions that are self-destructive. A majority mobilizing its genius through a process of careful reflection and contemplation to guide and channel its future passions (i.e., by drafting a constitution) is likely to fare better than a majority which simply surrenders to its own ephemeral whims.

This argument is related to the argument by the plaintiffs in Kerr v. State of Colorado, a challenge to the constitutionality of TABOR under the U.S. Constitution, which “requires all states to have a Republican Form of Government embodied in a representative democracy” ( In the complaint, the plaintiffs reference Federalist #10 (by James Madison), which states:

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

But the observation in this essay goes beyond that of Madison: Not only does representative (as opposed to direct) democracy temper passions and protect minorities from majorities, but it is ultimately indispensable to the very existence of the rule of law!

“The Father of the U.S. Constitution” understood the defects of direct democracy, and condemned those who advocated for it. A careful analysis of the effects of direct democracy demonstrate that it is fundamentally incompatible with the existence of an effective constitution and the rule of law. Ironically, once again, it’s precisely those who arrogate to themselves the mantle of defenders of the Constitution who are the ones against whom it must be defended.

Buy my e-book A Conspiracy of Wizards

Buy my e-book A Conspiracy of Wizards

(Opening scene: Angels, represented by twinkling stars, are talking about a troubled soul on Earth. They review this soul’s life, and the circumstances that led to its present attempt to kill itself….)

It was conceived with great hopes in a simpler time, by a variety of generous parents, and a few original sins. England (via the British Empire), in which modern democracy developed; The Enlightenment, characterized by a fluorescence of rationalistic philosophy; a wide-open new land, with an easily displaced indigenous population; abundant imported and domestically bred slave labor. It developed a grandiose vision for itself, one comprised of the somewhat incompatible memes of ‘manifest destiny’ and champion of liberty, and an exaggerated faith in its own exceptionalism.

But, as often happens, life presented unforeseen challenges which diverted this soul, the sovereign American People, from its youthful dreams. It gradually was forced to confront its original sins, brutally divided by one of them. Innovations complicated the landscape in which its dreams had been formed. It had to cope with a world comprised of other people with interests of their own, people less convinced of the benevolence of this powerful and self-interested nation than its own populace persistently was (rather too conveniently).

But despite this diversion from its original dreams, it was the same soul, peforming many good deeds, more often born of pragmatism than idealism, that were not always part of the original plan. It grew to address a changing world, doing what needed to be done to increase the welfare of those who depended on it. It intervened in its parent-continent when brutality racked the latter’s fields and towns, and then watched that continent, unencumbered by youthful dreams, combine the best fruits of their child’s aspirations with the reduced purism that comes from maturity.

But something in the people clung to the purity of youthful dreams, sulking with resistance to adulthood’s demands, an error that sometimes characterizes idealistic youth. Just at the point when both the people and their government were on the verge of following the mature wisdom of moderation and adaptation, the oversimplistic idolater within, childish and narcissistic rather than noble and generous, rebelled, and rent this national soul in an internal conflict over whether mature moderation would prevail, or childish purism.

It rebelled in a moment of crisis, a large faction of the people chanting the mindless refrain, “Government is not the solution, it’s the problem! The world would be better off without this government we’ve allowed to grow and grow, displacing the purity we had believed in and tried to implement in our youth! We would be better off if we had not allowed the lessons of life to adapt those youthful dreams to the demands of reality!”

And so this soul’s guardian angel decided to show it what the world would have been like without that modern government it now wished dead….

“First,” the angel said, “let’s look at what your country and world would have been like had you not further amended the Constitution after the Bill of Rights.

“Slavery would not have been legally abolished by the 13th Amendment, nor Congress empowered to enforce its prohibition.

“The 14th Amendment’s transformation of the legal framework of the country would never have occurred. The Dred Scott Decision, which held that no African American, whether free or slave, was an American citizen, would have remained the law of the land. The states’ exemption from the Bill of Rights, a document originally interpreted to limit only the federal government’s intrusion on state and individual rights, would have persisted, and the protections of the Constitution would have continued not to apply to or restrain state and local governments in any way. African American slaves would have continued to be counted, legally, as 3/5 of a human being.

“The 15th Amendment’s legal guarantee, not to be effectively enforced for a century more, that all citizens, regardless of race, have the right to vote, would not have come into existence.

“The 17th Amendment’s increase in direct democracy, by shifting elections for U.S. Senators from the state legislatures to the people of the state, would not have happened.

“Women might still be denied the vote in some states.

“The increased tardiness and unevenness with which the United States would have dealt with these morally enervating issues would have reduced the human capital of the nation, delaying its fuller liberation and development longer, if not, in some places, indefinitely. It would have been a less innovative country, and a less inspiring one to other nations. Resentments would have grown even stronger, divisions even deeper, the problems bred by these defects even more inextricably embedded in the fabric of your society. Those who later depended on the United States as a beacon of liberty would see only a quagmire of exploitation and oppression, either lagging even farther behind the finally pacified continent across the Atlantic it continually claimed superiority to, or, by not being a strong enough nation to lead, leaving the world into a downward spiral from which it couldn’t escape.

“The world would have been a very different place indeed had the United States not become what it became. And while there are those in the world who think that would have been a good thing, sometimes with considerable justification, it most certainly wouldn’t have been a good thing for America, nor, all things considered, for global peace and prosperity.”

“Oh, Angel,” the suicidal faction groaned condescendingly. “First of all, most of us don’t object to Constitutional Amendments, but rather to other increased exercises of federal power without recourse to such amendments. And second of all, many of these things would have come to pass by the choice of individual states, without the federal government imposing them on the states.”

“Slavery wasn’t going anywhere, anytime in the foreseeable future, without the legal and military coercion of the federal government,” replied the angel. “The gradual incorporation of the Bill of Rights into the Fourteenth Amendment by successive Supreme Court decisions, which continued into very recent times (because state and local governments were not universally committed to protecting those rights), would not have occurred, and those states would remain free to disregard those protections. We see even today how fragile those protections are, at the hands of those who claim most respect for them, in the repetition of the refrain that granting due process to those suspected of certain crimes (e.g., terrorism) reduces the rule of law, a chant that is phenomenally ignorant of what the term ‘rule of law’ means in a Constitutional republic (hint: ignoring it out of convenience, in order to increase conviction rates, no matter how heinous the crime, is the exact opposite of what it means).

“As for your other concerns, about increased exercises of federal power not granted by Constitutional amendments, follow me….”

The angel then said, “let’s look at what your country and world would have been like had you not had a strong federal government to hold the country together, pursue its collective interests, and impose its core values on its constituent parts (leaving aside for the moment the issues of so-called ‘activist courts’ and of the rise of the ‘administrative state’).

“It took a strong federal government to end slavery and hold the union together during and after the Civil War. A century later, it took a strong federal government, complete with National Guard, to enforce court-ordered desegregation. And it took a strong federal government to pass The Civil Rights Act of 1964, which utilized attenuated Commerce Clause power to prohibit racial discrimination by private owners of commercial institutions.

“It took a strong federal government, captured by the will of the people in a series of populist and progressive movements in the later 19th and early 20th centuries, to rein in ‘the robber barons,’ and redress the biggest disparity of wealth in this country ever…, until today, when we have finally exceeded it. It took a strong federal government to give the country hope during The Great Depression, and, despite the revisionism popular with the far-right today, launch record-setting economic growth in its midst (from 1933-1937), until budget hawks managed to convince to FDR to compromise his policies to their concerns.

“It took a strong federal government to mobilize the country and lead the allies during World War II, and to lead NATO during the Cold War.

“Without these efforts, slavery might still be extant, and, certainly, Jim Crow (American ‘Apartheid’) would still be extant in some regions. The country would have fractured not just into two as a result of the southern cessation, but into multiple tiny republics, neither viable on their own nor of any import on the world stage.

“Mexico and Canada, our more politically, economically and militarily successful neighbors to the north and south (in this alternate reality), probably would have annexed large chunks of what would otherwise have been The United States. European and World History would have been different, possibly with fascism prevailing in Europe and, eventually, threatening the tiny, weak republics across the Atlantic, in what would otherwise have been The United States of America.

“There would have been nothing other than fascist Europe to check Soviet and Chinese expansion, and, it is more probable, given the lack of moral compass of both fascism and Sino-Soviet Communism, that they simply would have arrived at a mutually agreeable division of the world into competing but mutually accommodating and reinforcing tyrannies.

“Without a federal government as strong as this one has been, there would be no ‘United States’ today, certainly no liberties in some regions for those who were deprived them historically, and quite probably a more tyrannical world in general.”

“Next,” the angel said, “let’s look at what your country and world would look like if you had not had an ‘activist’ judiciary interpreting the Constitution in ways relevant to, and adapting to, changing circumstances.” (See for a comprehensive exploration of the concept, including a discussion of why it, appropriately applied, has nothing to do with boosting individual liberty or governmental power, but rather refers to whether the judiciary adheres to the norms of judicial conduct which are its only real restraint.)

“In the conventional, ideologically charged use of the term, all Supreme Court decisions involve ‘judicial activism,’ because those cases that the Supreme Court chooses to hear are precisely those cases that involve unresolved ambiguities, and require judicial interpretation. Therefore, a complete history of the evolution of Constitutional Law, as defined by Supreme Court decisions, is, in a sense, one important slice of the history of ‘judicial activism,’ as the term is commonly used. And without that fully institutionalized form of ‘judicial activism,’ which is coextensive with the doctrine of ‘judicial review’ established by Justice Marshall described below, there would be no enforceable Constitution, no established and coherent rule of law to the extent that there is today in the United States. But rather than write a Constitutional Law synopsis, I’ll just mention a few of the most important cases, that involved perhaps the greatest liberty of Constitutional interpretation on the Court’s part, but without which we would be a nation with far weaker protections of individual liberties and rights than we have today.

“Chief Justice John Marshall established the principle of ‘judicial review’ in Marbury v. Madison in 1803, the first and greatest act of judicial activism in U.S. History, without which there would have been no final authority on what was and was not Constitutional. the lack of such judicial authority would have inevitably undermined the rule of law that, more than anything else, has distinguished the United States. Without the judicially determined Constitutional last word that Marshall successfully instituted, questions of Constitutionality, and thus ultimate legality, would be political footballs to a far greater extent than they already are, overwhelmed by the bickering whims of conflicting ideologies and interests that characterize the rest of political discourse and decision-making. In other words, without this bold initial act of judicial activism, the Constitution would have been an empty promise, and would be referenced today for strictly rhetorical rather than legal support, a non-binding tool for political argumentation. Uninformed lay opinions about what does and does not constitute Constitutionality would be raised to a par with legal analyses and Supreme Court holdings, reducing the Constitution to a meaningless blank slate on which each interest group and ideological camp could impress its own preferred interpretation.

“In Yick Wo v. Hopkins (1886), the Supreme Court held that a facially neutral law that has the effect of discriminating (a selectively enforced San Francisco code restricting licensing for laundries to brick or stone buildings in order to target Chinese laundries which were built of wood) violates the equal protection clause of the 14th Amendment. This decision was not a foregone conclusion: The letter of the law itself didn’t violate the Equal Protection clause, and so the decision can be said to be one of ‘an activist judiciary.’ But had it been more literal in its Constitutional interpretation, the Court would have set the precedent that discrimination is Constitutionally permissible as long as it is done implicitly rather than explicitly.

“In Pennsylvania Coal Co. v. Mahon (1922), the Supreme Court held that a government regulation that essentially deprives a property owner of the value of its property is an unconstitutional ‘taking’ (violating the Fifth Amendment protection of property), and the government must compensate the owner for that loss of value. Again, this is not an automatic ‘strict constructionist’ interpretation of the Constitution, since there is no language in the Constitution which addresses loss of value due to government regulation. However, those most adamant about the ills of ‘judicial activism’ are generally also those most likely to concur with this holding. In the absence of the judicial activism of the Court in this case, private property rights would have been more, rather than less, vulnerable to government intrusion.

“Brown v. Board of Education (1954) would certainly rate as an act of judicial activism by the ideological definition of that term currently in vogue. It overturned the Stare Decisis of Plessy v. Ferguson (1896), which held that segregation was Constitutional (instituting the ‘separate but equal’ doctrine), holding that ‘separate educational facilities are inherently unequal.’ Brown essentially launched the Civil Rights Movement as we know it today (it gave it its first major victory), a movement whose progress would have been at least slower, and possibly undermined altogether, in the absence of this Court decision.

“The Court also declined to limit Congress’ power to pass The Civil Rights Act of 1964, which used the Commerce Clause to prohibit private owners of commercial establishments from discriminating against potential customers, employees, renters, and buyers on the basis of race. This could easily be considered ‘judicial activism by omission,’ without which we would not have Civil Rights laws protecting minorities against the entire range of private discrimination, such as employment discrimination and housing discrimination.

“In Gideon v. Wainwright (1963), the Court established that the state’s failure to provide counsel to an indigent defendant essentially deprived that defendant of his Sixth Amendment right to counsel. The literal Constitutional right to counsel is not necessarily a right to be provided with counsel, at the people’s expense, but without interpreting it as such, this fundamental right would be accorded only to those who could afford it, and denied to those who cannot, reducing an essential protection of individual liberty to a commodity for sale rather than a guarantee to all citizens. In a world without this protection, the poor would receive even less justice than they do today.

“It’s worth noting here, again, that a series of Supreme Court decisions over the last century and a half have incorporated the Bill of Rights into the 14th Amendment Equal Protection clause, allowing those core protections to be applied to state and local governments as well as to the federal government, an act of ‘judicial activism’ without which states and counties and municipalities and school districts would be largely free to violate the Bill of Rights to whatever extent and in whatever ways they see fit. Hardly a boon to the protection individual liberty.

“Many other decisions could be included in this list, many other basic liberties that depended on an ‘activist judiciary.’ But the sampling above illustrates some of the ways in which our nation would be a very different, and in many ways far poorer place were it not for the role that the so-called ‘activist judiciary’ has played in our march toward increased equality of opportunity and rights, and increased protection of individual liberties.

“Finally,” said the angel, “let’s look at what your country and world would look like without the rise in America of the ‘Administrative State,’ through which to regulate the complex modern economy.

“Without the regulatory agencies that promulgate regulations, conduct hearings and inspections, license facilities, and engage in a complex web of tasks necessary to implement the laws passed by Congress, we would live in a far more insecure and unhealthy environment. Incidents such as the infamous ‘Love Canal’ toxic waste dump beneath a housing developing, causing an astronomical rise in cancer rates, would be the norm rather than the exception. The manipulation of markets, such as those by Enron which caused the California energy crisis of 2000-2001, would be constant and economically devastating. Confidence in investments would plummet, the economy would contract dramatically, and the financial system near-collapse of 2008 (resulting from underregulated financial markets) would be a constant and continuous event rather than a once-in-a-century crisis.

“The absence of the regulatory structure that has developed since the 1930s, and under the Administrative Procedure Act of 1946, would be akin to removing the mortar from between the bricks of the modern economy. The entire edifice would be less securely bound together, more unstable, and more likely to collapse. Those sheltered within it would feel every cold wind that blows through, and storms would whip through it with discomfiting regularity. Market failures would dominate the economy, and health and safety violations would be constant and ubiquitous. Commercial enterprises would know that they could sell toxic and dangerous substances with impunity, recognizing that there is more profit in not paying the costs of avoiding doing so. A major, perhaps completely dominant, economic niche would emerge for those that compete by avoiding such costs, simply changing names and products whenever the slow dissemination of information of the health and safety risks make the old product unprofitable to produce and sell.

“The already underfunded Food and Drug Administration would leave even more food and drug safety responsibility to the companies that have a vested interest in overlooking foreseeable dangers. The New York Times reported (September 28, 2007) that due to defunding, the FDA audits less than 1% of clinical drug trials in the United States. As a direct result we have increasing known cases of pharmeceutical companies fudging results of drug trials, leading to waves of preventable deaths, such as occurred with Propulsid (Johnson and Johnson), Bextra and Celbrex (Pfizer), and Vioxx (Merck).

“Similar stories of the consequences of deregulation and defunding of regulatory agencies can be found in food safety (increasing salmonella and E. coli contamination, even after companies had been asked to address discovered dangers but simply chose not to, a luxury afforded by underregulation), and product safety (such as children’s toys, imported from China, containing lead in seriously toxic quantities, undetected due to underregulation of imports). The more we ‘shrink government’ by reducing regulatory oversight even more than we have already done, the greater the frequency of such incidents will become. In the unregulated paradise that some in America are striving for, life would be, literally, ‘nastier, more brutish, and shorter,’ for thousands if not millions of children, and families, and innocent people just going about their lives.

“While there are some dysfunctional dynamics that lead to the production of laws that are thousands of pages long (e.g., earmarks, and other porkbarrel spending provisions; and controversial riders designed to piggyback on necessary legislation), the main reason is the complexity of the social institutional landscape that those laws are addressing. And those laws, even with their tens of thousands of pages of qualifications and provisions, don’t even begin to anticipate all contingencies, all unexpected consequences, all complexities that will emerge as the law is implemented. For that reason, regulatory agencies are necessary to implement the laws, to address those complexities, to adapt the execution of the law passed in Congress to the realities of the world to which it will apply.

“It is a very information-intensive enterprise, with an amazing amount of very precise expertise embedded in these organizations, able, for instance, to research the precise cancer rates associated with each commercial chemical substance on the market, or incorporated into items on the market; the ways in which these substances move through the environment and contaminate human beings; the probabilities of contamination and of contracting associated diseases from contamination; the fatality rates of doing so; the costs of regulation at each level; the balancing of legitimate economic concerns with legitimate health and safety concerns. It is not a process which leaves the public out, but rather one which, by law, includes the public, and invites public input.

“The same kinds of calculations and processes are required to oversee the use of public lands, the mining of water from aquifers and of minerals from the Earth, the emissions and dumping of toxic substances into the air and water and land; the determination of where to build roads and interstates and how to balance all of the concerns and interests involved; the determination of where to allow coal plants and nuclear plants and other installations to be built; the determination of what kinds of safety devices and scrubbers they require; the oversight of all of these protections and provisions without which we would all be dramatically worse off.

“Our economy has been growing (and continues to grow) in complexity at an accelerating rate. For example, the use of supercomputers programmed with complex algorithms to buy and sell stocks in order to reap gains made in fractions of a second distort the market, caused a freefall several months ago that rattled investors and required shutting the stock market down, and creates a competition for locating the computers as close as possible to the stock market servers in order to receive the information milliseconds before competitors. The market collapse caused by a malfunctioning algorithm resulted in an enduring loss of perhaps billions of dollars to investors, as the market had to creep back up, in a context of diminished investor confidence, from the depths to which it had plummeted. We need regulatory agencies equipped with human and material resources capable of keeping up with the tens of thousands of similar demands on them, if we want our market economy to continue to function, and to do so in the interests of all rather than at the long-term expense of the many in the short-term interests of the few.

“Here’s one very compelling objective piece of evidence about the value of that administrative state you are so eager to dismantle: Its emergence immediately preceded the most dramatic rise in wealth production in the history of the world. That very expensive “big government” administrative state has existed in every single nation on Earth that has ever experienced that dramatic rise in wealth production, both immediately prior to experiencing it and from then on, without exception, and every single prosperous developed modern nation is still characterized by the presence of that very expensive “big government” administrative state today, again, without exception. There is not one single exception, and never has been. While it’s true that you can’t prove a counterfactual (we don’t know what would have happened in its absence), there is not one shred of evidence that any other governmental form is able to facilitate this feat and accommodate its end result. By all available evidence, our wealth, the wealth of each and every one of us, is completely dependent on the existence of the administrative state.

“Yes, many of the problems that would occur in the absence of such a regulatory structure still occur within it; the poor are still burdened more than the rich by undesirable facilities in their neighborhoods; acquiescence to economic necessity still often triumphs over public health and safety; the interests of corporations still work their way through the system, in a variety of manners, at the expense of the public without always being off-set by a commensurate economic benefit; ‘industry capture’ of regulatory agencies to some extent ‘puts the foxes in charge of the henhouse.’ All of these problems diminish the degree to which our regulatory infrastructure efficiently and effectively does what almost all of us implicitly recognize to be necessary and desirable. But the absence of our regulatory infrastructure would erase the performance of that function altogether. The significant shrinkage of it that periodically occurs under Republican administrations almost always results in catastrophic effects, with a regularity that is matched only by the public disregard of the repeated lesson.

“To be sure, throughout this tour of what ‘small government’ would really mean, I have ignored the ways in which a strong centralized federal government, an ‘activist judiciary,’ and the rise of the administrative state have led to negative rather than positive outcomes for both Americans and the rest of the world (perhaps more the latter than the former, since a strong America has been strong to its own citizens’ advantage; for the most part, only when it incidentally served the interests of American citizens have others in the world benefited from American power. See “Democracy IN America,” But Not BY America). But the danger in America today, the one that most needs remedy, is not an exaggerated belief in the virtues of centralization of governmental power and effective political coherence, but rather an exaggerated belief in something that does not and cannot exist in the oversimplistic form imagined, a Liberty Idolatry that counsels the destruction of the very social foundation which liberty requires for its existence. And so that is the imbalance that I have addressed.

“Those poetic aspirations of America’s national youth were what defined its spirit and channeled its energies. They still guide and inspire its people today. But meeting real responsibilities as they arose is what carved that spirit into the more-often-than-not admirable world citizen and leader, and reliable agent of its own people’s interests, that it has become. The world, and the people at home who give the federal government life and whose lives that government in turn embues with expanded opportunities, would be poorer for the partial death that some would now impose on this vital vehicle of the American spirit. The demands that the federal government has risen to meet were not optional, could not have been disregarded. And idolizing rather than respecting the guidance given by America’s founding leaders and documents is an insult to them, and a disservice to those alive today, as well as those who will be alive tomorrow.”

The United States of America was founded to be a progressive nation. As Thomas Jefferson himself wrote:

I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.

Those who would strait-jacket us as a people with the ideological raiment that exists only in their own shrunken imaginations stand in opposition to this ideal, and to the very spirit of this nation. It’s time for George Bailey to come home, and bask in the fellowship of a society of people who strive to lift one another up, and help bear one another’s burdens.

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