Thrawn Rickle 51

Freedom and Accountability

© 1994 Williscroft

An underlying American principle is supremacy of the individual. Our founding fathers seemed to say that control of everything rests with the individual except where it is clearly impossible for the individual to exercise such control. Only then does government take control, but always that government closest to the problem—local and regional government first, then state, and finally national, and then only for matters that go beyond the interests of individual states.

Our founders proclaimed these principles when they declared their independence, and they embodied them in the Constitution which they created to guide the federal system that would control their lives, and their children’s lives, and their children’s children’s . . . . Obviously, they did a good job, because the Constitution is the oldest still used constitutional document in all the history of our planet. They built in sufficient flexibility to maintain its currency, and sufficient backbone to keep it viable.

The American federal system that they created can be summarized in this brief outline:

1. Powers of the national government. The Constitution delegates to the national government certain expressly enumerated executive, legislative, and judicial powers, and certain implied powers that may be reasonably inferred from the express powers, and certain inherent powers that derive from the very nature of a national government.

2. Powers of the states. The Constitution reserves to the states all powers not expressly granted to the national government, nor specifically denied to the states.

3. National supremacy. The Constitution holds the national government to be supreme in those limited areas in which it operates.

4. Constitutional limits. The Constitution imposes restraints on both national and state governments to preserve the federal system and to preserve individual freedom.

Diverging interpretations of the American federal system clashed even before it went into effect. With the passing of time, these differing views have evolved, but the fundamental difference between them is as real today as it was back then.

Thomas Jefferson insisted on reserving to the individual or to the lowest possible government unit anything not specifically reserved by the Constitution to a higher unit. On a more practical level, Jefferson saw the Constitution as an intergovernmental compact created by the citizens of the several states through their state representatives. As such, the real power rested with the states; that was the power the people controlled; the federal government was tasked with only those things beyond the scope of the individual states.

Alexander Hamilton, on the other hand, argued that the federal government, in order to carry out its mandate, needed to acquire many powers not specifically granted it by the Constitution. Hamilton rejected Jefferson’s intergovernmental compact in favor of a concept that bypassed state governments and looked directly to the people for constitutional authority. In effect, Hamilton moved the power to regulate individuals’ lives from the “local” to the “federal” level. When the dust settled, Chief Justice John Marshall summarized in McCulloch v. Maryland:

“Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”

Jefferson had lost, and therein lay the seeds of a problem that still affects us today.

Clearly, neither Jefferson nor Hamilton could foresee today’s instant communication networks. Neither of them could have predicted C-Span’s ability to eavesdrop on the daily activities of our national legislators. Ironically, I suspect each would have seen these developments as supporting his own argument. Hamilton would have correctly pointed out that such capabilities give directly to the people the power to control their national legislators. Jefferson certainly would argue, however, that the ability to control two senators and one representative does not give you control over your life, whereas the ability to monitor closely the activities of local and state legislators just may make such control possible.

This, then, is the crux of the matter. Given that some level of regulation over individual lives is necessary, who is better able to conduct this regulation? Is it a national legislature composed of members from fifty different states and several territories, concerned with national matters, dealing with national priorities? Or is it a state legislature that focuses strictly on the needs and concerns of a much smaller geographic and political entity? Or is it local county or city government?

Who defines “legitimate” and “appropriate?” All “those” guys, or “our” guys? The California state legislature recently enacted a motorcycle helmet law. Clearly, the majority of legislators believed it was “legitimate” and “appropriate” for bikers to be helmeted. They invoked statistics about lower injury rates for helmet wearers. They calculated higher costs to society for supplying care to injured helmetless bikers without adequate insurance. Counter-arguments about an individual’s right to make responsible choices (or not), about usurping rights not specifically granted to government, fell on deaf ears. Arguments for enforcing specific financial requirements on bikers to offset society’s cost for their potential injuries went unheeded.

This was “our” guys who did this, state-level politicians focused on state interests. This has happened not only in California, but in other states too. Who defines “legitimate” and “appropriate?”

Jefferson would answer: You, whenever possible. And when you can’t, then the government closest to you, over which you have the greatest control.

Hamilton would answer: The federal government, whenever possible. And when it cannot because of jurisdictional restrictions or for other reasons, then the government closest to it.

Mandatory seat belt laws are another example of the same kind of thinking. Government assumes a responsibility not specifically granted to it, thereby removing from the individual the responsibility for making another self-preserving rational decision. Clearly, the Hamiltonian point of view prevails today. The answer to “Who defines ‘legitimate’ and ‘appropriate’?” rarely is You, and frequently is the Feds. And when it isn’t the Feds, it is “our guys” at the highest possible state level.

This approach leads to increasing amounts of unnecessary regulation and control, regulation and control that individuals would never condone on a personal level, but which they accept with helpless resignation because it is imposed on them from above. Arguments about saving lives, making people safer, protecting our environment, simply do not wash. Our Constitution is not about saving lives, making people safer, protecting our environment; it’s about personal freedom, period.

We are losing sight of a fundamental principle. In a society of free individuals, we each must act in our own rational self-interest. We each are fully accountable for our actions. Society must enforce this fact, must ensure that each individual never escape the consequences of irresponsible behavior.

It isn’t a question of whether or not a result is beneficial. It is not even a question of right or wrong. It is a question of responsibility, accountability, and culpability.

Constitutional government is about protecting you from me and me from you, about protecting us from them, and all of us from all of them. That’s it: no Great Society, no national health plan, no golden parachute . . . . To paraphrase Marshall’s famous summary:

Let these (protecting you from me, me from you, us from them, and all of us from all of them) be the only legitimate scope of the Constitution, and all means which are appropriate, which are plainly adapted to this end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.

Or put another way, let the Constitution be the instrument that enforces the spirit behind the American Indian name for a well-known Michigan lake: Argogagogmanchuagagogchaubunaugungamog, which loosely translated into English means: You fish on your side; I’ll fish on my side; and we’ll both stay away from the middle.