The political system seems to be falling apart. It can no longer address challenges in a sensible way, elections are shrouded in controversy and leave elected officials bereft of a mandate, and ideological divisions make it almost impossible to reach any consensus on the boundaries of government action.
While the problem is sometimes described as one of missing laws or the wrong kinds of procedures, the crux of the issue is the character and judgment of the decision-makers, itself a reflection of the character and judgment of the people.
Nothing man-made is perfect, including the American Constitution and the political system that has grown up under it. Our system, like every system, ultimately depends on the quality of the people, both in the citizenry and within the government.
Faction Against Faction
An enduring myth of the founders is that they conceived of the Constitution as an elaborate Rube Goldberg contraption that would channel men’s energies in a socially beneficial direction, even when populated with immoral and selfish political actors.
This view arises from a superficial reading of Publius’ argument in Federalist 51:
But 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. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? . . . This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.
While the founders were willing to make use of ambition and self-interest, they had no illusions that these forces by themselves would work to maintain liberty forever, particularly in a system of self-government.
In the same essay, the author remarks, “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust: So there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.”
This view is not an outlier. A belief in the importance of virtue, both among the governors and the governed, was practically universal. George Washington, in his First Inaugural Address, stated that “there is no truth more thoroughly established than that there exists in the economy and course of nature, an indissoluble union between virtue and happiness, between duty and advantage, between the genuine maxims of an honest and magnanimous policy, and the solid rewards of public prosperity and felicity.”
A Government of Laws is Still Run By Men
Even a government of laws needs men to interpret, administer, and enforce those laws and to carry out policy. Designing a Constitution where “ambition must be made to counteract ambition” was only conceived as a temporary bulwark against abuse, an outgrowth of the broader “separation of powers” principle. But this mechanism cannot fully and permanently protect against bad leaders or a degraded, dishonorable, and disunited people. There is always room for abuse, and the risk of such abuse is an unavoidable feature of a government sufficiently energetic to govern effectively.
Consider the problem of applying the ordinary modes of criminal prosecution to a former president, recently defended by attorney general and failed Supreme Court nominee, Merrick Garland. He gave a very defensive speech about the matter and refused to answer questions, which suggests that explaining himself to American people is beneath him. This was bad enough, yet a typical sign of the times.
But Garland also made little mention of the double standards, prior practice, and gravity of the situation at hand. In other words, his public appearances revealed him as neither a boring technocrat, nor the esteemed “wise man” able to restore confidence in government. Rather, he came across as a snobbish, partisan hack.
That said, most of the proposed solutions to this abuse invite other kinds of abuse. While Trump has been the victim of a six-year partisan witch hunt, it would be an error to place presidents completely off-limits to law enforcement, as this would undermine the principle of “equal justice” that is the keystone of our legal regime.
If the principle of non-prosecution were taken too far, it would make the political class more generally a law unto itself and a permanent aristocracy. So, it is probably unavoidable that one’s partisan opponents may later have the power to initiate criminal proceedings. Until now, respect for the American people, deference to the impeachment process, and a concern for retaliation kept such activity in check.
Another solution sometimes proposed is to appoint supposedly neutral experts in situations like this, such as an independent counsel. The problem is that such special prosecutors can go rogue. Far from being neutral, they are often ambitious and Javert-like. Consider the recent runaway investigation led by another overrated D.C. wise man, Robert Mueller, long after he discovered the Russian collusion allegations were a hoax.
Special or independent counsel are not bound by the limited resources and competing demands that guide ordinary prosecutors. As Justice Scalia noted in his dissent in the 1988 Morrison v. Olsen case,
Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration . . . The President is directly dependent on the people, and since there is only one President, he is responsible.
Another tempting solution is to limit officials through a proliferation of rules and regulations. While this is superficially appealing, too many rules are almost as bad as none at all. When there are so many, everyone is violating them all the time. Thus, the wide net they cast invites selective application, which can be imposed (or not) capriciously. Moreover, bad leaders will simply ignore rules they do not like, which became apparent during the coronavirus hysteria.
When laws are voluminous, prosecution does not consist of matching behavior to a limited set of prohibitions, but rather law becomes more like a big toolbox, where prosecutors can pull out the rule or regulation they want, as dictated by their political agenda or whimsy. This is most apparent when the targeting is political, as in the Logan Act prosecution of American hero General Michael Flynn or the recent search of Trump’s residence for doing what every other former president has done in keeping certain presidential papers.
A multiplication of laws and rules is usually the sign of a fraying, disunified, and corrupted society. Societies with a coherent culture and shared values resolve most disputes through informal mechanisms, like reputation, a shared sense of fair play, and conversation. But as a society starts to drift apart, rules expand in a last-ditch effort to fix a broken system.
This article is short on solutions, but sometimes them’s the breaks. America in its traditional form is probably done. Hard times are ahead, and something new will emerge on the other side. But understanding these dead ends is useful, because it lets us focus more on what comes next, rather than being seduced by a false promise of perfectable procedures, to be brought about through another law or three or some deus ex machina intervention by nonpartisan experts.
Tweaking the rules and regulations will not revive the current system or save us from bad officials and the burden of self-government. But this reality should encourage us to adopt a new system that identifies and elevates men of virtue, energy, and ability into power.