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logo    Has the Constitution been Subverted?


Americans like to brag about our wondrous Constitution and how it has survived for more than two centuries. But there are very good reasons to conclude that this nation bears only a superficial resemblance to one the founders meant to create.

In 1787-88, there was heated debate about the Constitution's merits. This debate is chronicled in the Federalist Papers. In Number 9, Hamilton writes that "A firm union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection." I have emphasized the words domestic faction . He argues that "The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election . . . are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided."

In Number 10, he writes, "Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. . . . Complaints are everywhere heard . . . that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided , not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. . . . A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for preeminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good. . . . But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of government."

How many of these pernicious effects of faction do you see at large in America today?

1.        The public good is disregarded in the conflicts of rival parties

2.        Measures are too often decided , not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.

3.        A zeal for different opinions concerning religion, and many other points, have, in turn, divided mankind into parties and inflamed them with mutual animosity,

4.        The various and unequal distribution of property.

So if you see these in American society today, they can only be attributed to the failure of our elected officials to carry out the principal task of modern legislation.

But faction has had other more direct pernicious effects on our Constitution, which was meant to create a nation whose government was made up of three separate and distinct branches of government, each of which was meant to be a check on the others. But when two or more branches of government are controlled by persons belonging to the same faction, the responsibility of one branch to check the others is dissipated. So the ideology of faction rules; the government exists, not for all the people, but for merely some of the people, which exacerbates conflict and ultimately leads to ruin. Will America share the fate of those other Classical republicsSparta, Athens, Rome, Carthage, Venice, and Hollandthat this nation's founders understood only too well and hoped to avoid?

This trend toward factional government is not the result of any sinister conspiracy. All of our political parties, except the earliest, the Federalist, have promoted it. This growth of faction in government is the result of changing circumstances and insufficient attention paid by Americans to the motives and concerns of the nation's founders.

But government by faction often results in government by ideology, because ideologists don't care what the facts are. But ignoring facts when engaged in developing public policy is always dangerous. Sometimes it merely results in ineffective legislation; but history has shown that it can also lead to catastrophe. Anecdotal evidence suggests that our nation's governments, on both state and national levels, are developing policies on ideological rather than rational principles. This suggestion is supported by the large number of social issues that the legislatures and the Congress have considered numerous times in the past half century that have resisted amelioration. Crime, healthcare, illegal immigration, the war on drugs all fall into this class.

Take healthcare as an example. The Economist regularly publishes the amount spent on health care per capita by country.  For several years, the charts have shown that Americans spend more for healthcare than the citizens of any other nation, and, in most cases, we get less for it. Furthermore few seem satisfied with the current system. People are dissatisfied because it doesn't cover the entire population, insured people are dissatisfied because their costs are not only too high, they continually get higher. Employers that provide insurance are dissatisfied for the same reasons. Providers, doctors and hospitals, are dissatisfied because the reimbursements are too little. One would think that all of these groups together could apply enough pressure to bring about effective change, but they do not because of the ideologies involved.

What kinds of arguments do we hear from the opponents of change? First, people ought to be able to choose their own doctors. Second, the private sector is more efficient than the public. Third, government should not regulate prices.

Now let's look at the facts.

First, the present system only superficially gives us the right to choose our doctors, because, on the one hand, insured persons must select doctors from lists of approved providers unless they are willing to pay even higher costs, and on the other hand, doctors rarely practice alone anymore. They practice in groups. And although you can select a specific doctor from a group, that doctor may not be on duty when you get sick or are in an accident.

Second, anyone who has ever worked for a private firm knows how enormously inefficient companies can be. The people in private industry come from the same general population that government workers come from, and efficiency is, in the long run, a person-attribute. It is people who are efficient or inefficient. In theory, private industry is more efficient than government, but not in practice, and the current system is rife with inefficiency. Different insurers require different claim procedures and have different authorization requirements. Each insurer has its own bureaucracy to support, and each must take money out of the system as profit.

Third, the current system is inconsistent about not regulating prices. It certainly regulates the prices that physicians, hospitals, and other providers receive. But it doesn't regulate the prices of drug and other providers. Why not?

Other nations can provide healthcare to more people at less cost simply because they have abandoned these ideological principles. And as long as American policy makers continue to hold them, America will never have an effective medical delivery system.

Similar analyses can be provided for why Americans have not been able to reduce crime by means of our current system of punishments, for why we have not been able to win the War on Drugs, and why we have not been able to stem the flow of illegal immigrants. Yet all of these problems can be solved, some more easily than the others, by basing solutions on facts, and none of these problems can be solved by enacting ideology into law.

The people who founded this nation knew that the ideologies of factions are not only a pernicious influence on government, it led all previous democratic and republican governments to their destructions. Our present political leaders apparently don't know how pernicious factional government is, and as a consequence we are repeating history rather than learning from it. (3/23/2005)