by Gore Vidal
Law by presidential decree is an established fact. But, as Lundberg notes, it is odd that there has been no effective challenge by Congress to this usurpation of its powers by the executive. Lundberg quotes the late professor Edward S. Corwin of Princeton, a constitutional scholar who found troubling the whole notion of government by decree: “It would be more accordant,” wrote Corwin in Court Over Constitution, “with American ideas of government by law to require, before a purely executive agreement to be applied in the field of private rights, that it be supplemented by a sanctioning act of Congress. And that Congress, which can repeal any treaty as ‘law of the land or authorization, can do the same to executive agreements would seem to be obvious.” Obvious—but ignored by a Congress more concerned with the division of the contents of the pork barrel than with the defense of its own powers.
Between a president ruling by decrees, some secret and some not, and a Court making policy through its peculiar powers of judicial review, the Congress has ceased to be of much consequence. Although a number of efforts were made in the Congress during the Fifties to put the president back in his cage and to deflect the Court from its policymaking binges, nothing substantive was passed by a Congress which, according to Lundberg, “is no more anxious to restrict the president than it is to restrict the Supreme Court. Congress prefers to leave them both with a free hand, reserving the right at all times to blame them if such a tactic fits the mood of the electorate.” When Congress rejected Carter’s energy program, it was not blocking a president who might well have got around it with an executive order. Congress was simply ducking responsibility for a gasoline tax just as the president had ducked it by maliciously including them in the process. Actually, Congress does, from time to time, discipline presidents, but it tends to avoid collisions with the principle of the executive order when wielded by the lonely Oval One. So does the Supreme Court. Although the Court did stop President Truman from seizing the steel mills in the course of the Korean (by executive order) War, the Court did not challenge the principle of the executive order per se.
Since the main task of government is the collection of money through taxes and its distribution through appropriations, the blood of the Third Republic is the money-labor of a population which pays taxes to support an executive establishment of some ten million people if one includes the armed forces. This is quite a power base, as it includes the Pentagon and the CIA—forever at war, covertly or overtly, with monolithic Communism. “Justice is the end of government,” wrote Madison (Federalist Paper No. 52). “It is the end of civil society. It ever has been and ever will be pursued until it is obtained, or until liberty be lost in the pursuit.” Time to start again the hard pursuit.
It was the wisdom of Julius Caesar and his heir Octavian to keep intact the ancient institutions of the Roman republic while changing entirely the actual system of government. The new dynasty reigned as traditional consuls, not as kings. They visited regularly their peers in the Senate—in J.C.’s case once too often. This respect for familiar forms should be borne in mind when We the People attend the second constitutional convention. President, Senate, House of Representatives must be kept as familiar entities just as their actual functions must be entirely altered.
Thomas Jefferson thought that there should be a constitutional convention at least once a generation because “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 disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him as a boy, as a civilized society to remain ever under the regimen of their barbarous ancestors.” Jefferson would be amazed to see how the boy’s jacket of his day has now become the middle-aged man’s strait-jacket of ours. The amended Constitution of today is roomier than it was, and takes into account the national paunch; but there is little freedom to move the arms because, in Herder’s words, “The State is happiness for a group” and no state has ever, willingly, spread that happiness beyond the group which controls it. The so-called “iron law of oligarchy,” noted by James Madison, has always obtained in the United States.
Ten years ago Rexford Guy Tugwell, the old New Dealer, came up with Version XXXVII of a constitution that he had been working on for some years at the Center for the Study of Democratic Institutions at Santa Barbara. Tugwell promptly makes the mistake that Julius Caesar and family did not make. Tugwell changes names, adds new entities. Yet the old unwieldy tripartite system is not really challenged and the result is pretty conventional at heart because “I believe,” said Tugwell, explaining his new arrangements, “in the two-party system.” One wonders why.
The Framers wanted no political parties—or factions. It was their view that all right-minded men of property would think pretty much alike on matters pertaining to property. To an extent, this was—and is—true. Trilateral Commissions exist as shorthand symbols of this meeting of minds and purses. But men are hungry for political office. Lincoln felt that if the United States was ever destroyed it would be by the hordes of people who wanted to be office-holders and to live for nothing at government expense—a vice, he added dryly, “from which I myself am not free.”
By 1800 there were two political parties, each controlled by a faction of the regnant oligarchy. Today, despite close to two centuries of insurrections and foreign wars, of depressions and the usurpations by this or that branch of government of powers not accorded, there are still two political parties, each controlled by a faction of the regnant oligarchy. The fact that the country is so much larger than it was makes for an appearance of variety. But the substance of the two-party system or non-system is unchanged. Those with large amounts of property control the parties which control the state which takes through taxes the people’s money and gives a certain amount of it back in order to keep docile the populace while reserving a sizable part of tax revenue for the oligarchy’s use in the form of “purchases” for the defense department, which is the unnumbered, as it were, bank account of the rulers.
As Walter Dean Burnham puts it, “The state is primarily in business to promote capital accumulation and to maintain social harmony and legitimacy.” But expensive and pointless wars combined with an emphasis on the consumption of goods at the expense of capital creation has called into question the legitimacy of the oligarchy’s government. Even the dullest consumer has got the point that no matter how he casts his vote for president or for Congress, his interests will never be represented because the oligarchy serves only itself. It should be noted that this monomania can lead to anomalies. In order to buy domestic tranquillity, Treasury money in the form of transfer-payments to the plebes now accounts for some 70 percent of the budget—which cannot, by law, be cut back.
In the 1976 presidential election, 45.6 percent of those qualified to vote did not vote. According to Burnham, of those who did vote, 48.5 percent were blue-collar and service workers. Of those who did not vote, 75 percent were blue-collar and service workers. The pattern is plain. Nearly 70 percent of the entire electorate are blue-collar and service workers. Since only 20 percent of this class are unionized, natural interest requires that many of these workers belong together in one party. But as 49 percent of the electorate didn’t vote in 1980, the “two-party system” is more than ever meaningless and there is no chance of a labor party—or of any party other than that of the status quo.
The regnant minority is genuinely terrified of a new constitutional convention. They are happier with the way things are, with half the electorate permanently turned off and the other half mildly diverted by presidential elections in which, despite a semblance of activity, there is no serious choice. For the last two centuries the debate has been going on as to whether or not the people can be trusted to govern themselves. Like most debates, this one has been so formulated that significant alternative ideas are excluded
at the start. “There are nations,” said Herzen, “but not states.” He saw the nation-state as, essentially, an evil—and so it has proved most of the time in most places during this epoch (now ending) of nation-states which can be said to have started, in its current irritable megalomaniacal form, with Bismarck in Germany and Lincoln in the United States.
James Madison’s oligarchy, by its very nature, cannot and will not share power. We are often reminded that some 25 percent of the population are comprised of (in Lundberg’s words) “the super-annuated, the unskilled, the immature of all ages, the illiterate, the improvident propagators, the mentally below par or disordered” as well as “another 25 percent only somewhat better positioned and liable at any turn or whirligig of circumstances to find themselves in the lower category.” As Herzen, in an unhappy mood, wrote, “Who that respects the truth would ask the opinion of the first man he meets? Suppose Columbus or Copernicus had put to the vote the existence of America or the movement of the earth?” Or as a successful movie executive, in a happy mood, once put it: “When the American public walks, its knuckles graze the ground.”
The constant search for external enemies by the oligarchy is standard stuff. All dictators and ruling groups indulge in this sort of thing, reflecting Machiavelli’s wisdom that the surest way to maintain one’s power over the people is to keep them poor and on a wartime footing. We fought in Vietnam to contain China, which is now our Mao-less friend; today we must have a showdown with Russia, in order to…. One has already forgotten the basis for the present quarrel. No. Arms race. That’s it. They are outstripping us in warheads, or something. On and on the propaganda grinds its dismal whine. Second to none. Better to die in Afghanistan than Laguna. We must not lose the will….
There are signs that the American people are beginning to tire of all of this. They are also angry at the way that their money is taken from them and wasted on armaments—although they have been sufficiently conned into thinking that armaments are as good as loafers on welfare and bureaucrats on the Treasury teat are bad. Even so, they believe that too much is being taken away from them; and that too little ever comes back.
Since Lundberg began his career as an economist, it is useful to quote him at length on how the oligarchy operates the economy—acting in strict accordance with the letter if not the spirit of the three constitutions.
The main decision that Congress and the President make that is of steady effect on the citizenry concerns appropriations—that is, how much is to be spent up to and beyond a half-trillion dollars and what for. The proceeds are supposed to come from taxes but here, in response to citizen sensitivity, the government tends to understate the cost. Because the government has taken to spending more than it takes in, the result is inflation—a steady rise in the prices of goods and services.
The difference between what it spends and what it takes in the government makes up by deviously operating the money-printing machine, so that the quantity of money in circulation exceeds the quantity of goods and services. Prices therefore tend to rise and money and money-values held by citizens decline in purchasing value….
All that the government has been doing in these respects is strictly constitutional. For the Constitution empowers it, first, to lay taxes without limit (Article I, Section 8, Paragraph 1). It is empowered in the very next paragraph to borrow money on the credit of the United States—that is, the taxpayers—also without limit…. As to inflation, Paragraph 5 empowers the government, through Congress and the President, not only to coin money but to “regulate the value thereof.” In other words, under the Constitution a dollar is worth whatever Congress and the President determine it to be by their fiscal decisions, and for nearly three decades officials, Republican and Democratic alike, have decreed that it be worth less….
When Congress and president over-appropriate, the Treasury simply prints
…short-term notes and bonds and sends these over to the Federal Reserve Bank, the nation’s central bank. In receipt of these securities, the Federal Reserve simply credits the Treasury with a deposit for the total amount. The Treasury draws checks against these deposits. And these checks are new money. Or the Treasury may simply offer the securities for sale in the open market, receiving therefore the checks of buyers.
Since there is no legal way to control either president or Congress under the current system, it is inevitable that there would be a movement for radical reform. The National Taxpayers Union was organized to force the federal government to maintain a balanced budget. In order to accomplish this, it will be necessary to change the Constitution. So the National Taxpayers Union has called for a new constitutional convention. To date, thirty state legislatures have said yes to that call. When thirty-four state legislatures ask for a new convention, there will be one. As Professor Gerald Gunther of Stanford Law School recently wrote:
The convention delegates would gather after popular elections—elections where the platforms and debates would be outside congressional control, where interest groups would seek to raise issues other than the budget, and where some successful candidates would no doubt respond to those pressures. Those convention delegates could claim to be legitimate representatives of the people. And they could make a plausible—and I believe correct—argument that a convention is entitled to set its own agenda….*5
Those who fear that Milton Friedman’s cheerful visage will be swiftly hewn from Dakota rock underestimate the passion of the majority not to be unemployed in a country where the gap between rich and poor is, after France, the greatest in the Western world. Since the welfare system is the price that the white majority pays in order to exclude the black minority from the general society, entirely new social arrangements will have to be made if that system is to be significantly altered.
Predictably, the oligarchs and their academic advisers view with alarm any radical change. The Bill of Rights will be torn to shreds, they tell us. Abortion will be forbidden by the Constitution while prayers will resonate in the classrooms of the Most Christian Republic. The oligarchs think that the people are both dangerous and stupid. Their point is moot. But we do know that the oligarchs are a good deal more dangerous to the polity than the people at large. Predictions that civil rights would have a rocky time at a new convention ignore the reality that the conglomeration of groups attending it will each have residual ethnic, ideological, religious, and local interests whose expression they will not want stifled. It is by no means clear that civil liberties would be submerged at a new convention; and there is no reason why the delegates should not decide that a Supreme Court of some sort should continue to act as protector of the Bill of Rights—a better protector, perhaps, than the court that recently separated a Mr. Snepp from his royalties.
The forms of the first three republics should be retained. But the presidency should be severely limited in authority, and shorn of the executive order and the executive agreement. The House of Representatives should be made not only more representative but whoever can control a majority will be the actual chief of government, governing through a Cabinet chosen from the House. This might render it possible for the United States to have, for the first time in two centuries, real political parties. Since the parliamentary system works reasonably well in the other industrially developed democracies, there is no reason why it should not work for us. Certainly our present system does not work, as the late election demonstrated.
Under a pure parliamentary system the Supreme Court must be entirely subservient to the law of the land, which is made by the House of Representatives; and judicial review by the Court must join the executive order on the junk-heap of history. But any parliamentary system that emerged from a new constitutional convention would inevitably be a patchwork affair in which a special niche could, and no doubt would, be made for a judicial body to protect and enforce the old Bill of Rights. The Senate should be kept as a home for wise men, much like England’s House of life-Lords. One of the Senate’s duties might be to study the laws of the House o
f Representatives with an eye to their constitutionality, not to mention rationality. There should be, at regular intervals, national referenda on important subjects. The Swiss federal system provides some interesting ideas; certainly their cantonal system might well be an answer to some of our vexing problems—particularly, the delicate matter of bilingualism.
The present Constitution will be two hundred years old in 1987—as good a date as any to finish the work of the second constitutional convention, which will make possible our Fourth Republic, and first—ah, the note of optimism!—civilization.
The New York Review of Books
February 5, 1981
THE NATIONAL SECURITY STATE
Every now and then, usually while shaving, I realize that I have lived through nearly one third of the history of the United States, which proves not how old I am but how young the Republic is. The American empire, which started officially in 1898 with our acquisition of the Philippines, came to a peak in the year 1945, while I was still part of that army which had won us the political and economic mastery of two hemispheres. If anyone had said to me then that the whole thing would be lost in my lifetime, I would have said it is not possible to lose so much so quickly without an atomic catastrophe, at least. But lose it we have.
Yet, in hindsight, I can see that our ending was implicit in our beginning. When Japan surrendered, the United States was faced with a choice: Either disarm, as we had done in the past, and enjoy the prosperity that comes from releasing so much wealth and energy to the private sector, or maintain ourselves on a full military basis, which would mean a tight control not only over our allies and such conquered provinces as West Germany, Italy, and Japan but over the economic—which is to say the political—lives of the American people. As Charles E. Wilson, a businessman and politician of the day, said as early as 1944, “Instead of looking to disarmament and unpreparedness as a safeguard against war, a thoroughly discredited doctrine, let us try the opposite: full preparedness according to a continuing plan.”
