constitutional drift

There is no such thing as a finished constitution. As a foundational feature of political organization, constitutions are constantly being renewed or altered, but rarely are they static, and never for long. In the course of arguing for the ratification of the Constitution of the United States, Alexander Hamilton in Federalist No. 1 famously wrote, “It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” The American project rests upon an acceptance of the responsibility associated with making this judgment, as well as the recognition that this judgment is not the purview of the ‘constitutional moment’ only. The choice of ordered liberty and self-governance must be made by each generation. It is clear that, somewhere along the line, America failed to renew the constitution of liberty.

With the coming of the Progressive era, and especially the Wilson and Roosevelt administrations, the United States eschewed ‘competitive federalism,’ wherein state governments would vie with each other and Washington to govern best in the people’s interests, to ‘cartel federalism,’ where state and national governments conspired to use political machinery to strike profitable deals among powerful interest groups. Those not fortunate enough to be a member of such favored groups were expected to foot the bill in terms of increased taxes and foregone prosperity.  The transition from competitive to cartel federalism was nothing less than a Constitutional inversion. I do not believe any monocausal explanation can sufficiently account for this degradation of American governance institutions. Ideology, interest, and opportunity were interwoven in a complex fashion yielding the modern bureaucratic-managerial state. But I do believe that a partial explanation lies in overlooking the distinction between the Constitution of the United States, and the constitution of the United States.

Americans understandably have an intense fascination with written, or formal, constitutions. The Constitution of the United States is obviously a formal constitution. But just as important are informal constitutions—the actual balance of power among interests that determines policy, regardless of whether this balance matches a formal constitution, should one exist. Formal constitutions can be designed, but informal constitutions are always evolved. Political danger waits in circumstances where the formal constitution diverges from the informal constitution. The rise of the bureaucratic-managerial state was a de facto constitutional revision, although the Constitution was never formally amended to reflect the changing nature of American governance. The result of this ‘constitutional drift’ was a Machiavellian illusion covering the gap between political form and political substance.


Alexander Hamilton

Even for those who place little value on liberty and self-governance, the bureaucratic-managerial state poses a number of problems in the realm of practical governance. The first is a break in the chain of democratic accountability. The various bureaus and departments of the bureaucratic-managerial state are staffed by ‘experts’ who more or less govern autonomously, regardless of who is sitting in the Oval Office. The result is an increase in the control the Executive branch has over every aspect of Americans’ lives, without the corresponding responsibility resting with the Chief Executive. The Framers were worried by the prospect of active tyranny, meaning the domination of political processes by a concrete interest that would advance itself at the expense of the public good. Instead we have a passive tyranny, where encroaching interests are no less real, but reducible to the actions or intent of no particular group. In the language of F.A. Hayek, American governance is a notable example of a ‘bad’ spontaneous order. Those who advocate the state encroach on traditional rights and liberties typically do so in the name of democracy, so this divorce between public policy and the ‘will of the people’ should be especially troubling.

The second problem is that a central, nationalist government cannot cope with the political ‘knowledge problem’ as well as a decentralized, federalist government. When government is local, public officials can better know the wants and needs of their neighbors. Representatives are more in touch with their constituents, and bureaucrats can quickly see whether the chosen means of governance are effective in securing their intended ends. When government is national, these delicate feedback mechanisms are destroyed. The number of senators and representatives per capita is now too small for them to have extensive knowledge of their constituents’ wellbeing. Bureaucrats likewise have little information to ascertain whether their projects are succeeding.  A nationalist system simply is not as competent as a federalist system in delivering welfare-enhancing governance. However, it is much more competent at brokering political deals that benefit well-connected interest groups as the expense of the ‘everyman’ political outsider.

American governance in practice no longer matches the high ideals of American governance in theory. The meanness of the constitution obviates the glory of the Constitution. But neither Constitutions nor constitutions enforce themselves, so the continued lawlessness of the federal government is not and cannot be inevitable. Interests matter, but so do ideals. Self-governance requires that those in positions of authority emphasize the importance of treating the Constitution as a ‘living document,’ in that phrase’s best sense—not as a surrender to expediency, but as a recognition that no nation can govern itself that fails to meet the responsibility of perpetually renewing the Constitution by living its constitution. In the long run, regular practice of the republican virtues is the best way for Americans to reacquaint themselves with the social and political forms appropriate to a nation of free men.

This essay is based on the author’s academic paper, “Constitutional Drift and Political Dysfunction: Underappreciated Maladies of the Political Commons.” Books on the topic of this essay may be found in The Imaginative Conservative Bookstore

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2 replies to this post
  1. Alexander

    I am fairly certain that it is possible if not necessary to construct a finished constitutional basis for rule of law.

    It may be impossible to imagine the means of production of commons that we call government within that rule of law.

    Because the basis of the rule of law appears to be a universal ligucal necessity.

    Yet the basis of government production of commons under rule of law is a mere technology that must adapt to innovations in knowledge.

    Just as the common law must constantly innovate in order to prohibit newly found means of imposing costs upon others against their will.

    So from this perspective the hierarch of law is:
    1) Rule of law and Logic of contract (fixed)
    2) Resolutions of disputes. ( juridically expandable)
    3) Construction of commons. (Constitutionally modifiable)

    Which is a bottom up construction of a constitutional order.

    Curt Doolittle.
    The Propertarian Institute.
    Kiev, Ukraine.

  2. Very insightful, but the idea is worth testing out on the wide variety of countries that the world offers. The best governed country in the world is sometimes argued to be Singapore, whose claim to being ‘democratic’ in the strict sense, is unsupportable. However the existence of effective feedback to the bureaucrats without the form of democracy – though the regular elections provide some of the mechanism – is nicely demonstrated. In addition in such a small country, the elite is unable to hide.

    It is important to recognise the causes of the agglomeration to the Federal government. Some was the need to face down the robber barons of the trusts; the Standard Oil monopoly was not going to go quietly. Some was to address the issue of pollution – something which individual states are unable to regulate effectively if the pollution is arriving from across their border. Both these can be argued to constitute a legitimate use of the Federal power.

    WWI was another major cause of the shift; paying for it meant that income tax was never going to be rolled back. Yet it is, of course, the FDR era when the major shift occurs – with the development of the belief that government CAN cure problems, but when only the Federal government has the financial credibility to run the deficit that was perceived then – however wrongly, another debate – to make the economy come back to life. This is followed by the involvement of the Federal Government in the civil rights agenda in the South – another example of where it is hard to challenge the adoption of the path but with dreadful consequences in the long term. Most recently the role of the Feds in law enforcement and education has crept up on you, and shows no sign of retreat. I wish you the best of luck in turning back the tide!

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