Don't Hate the Players, Hate the Game: Why a Properly Enforced Constitutional Order is Preferable to "Moderation"
Trevor Burrus
Darrell M. West makes a straightforward and familiar call for more political moderation in his lead essay, "Why We Need Political Moderation and How to Encourage It." On its face it is a sensible argument, one that I have sympathy for. I am also disturbed by the level of vitriol in our politics, and I'm not sanguine that it will get better before it gets worse. Moreover, as a libertarian, especially in the age of Trump, I increasingly try to act as a bridge between my friends on the left and my friends on the right, mollifying the tension and trying to find common ground, but that is steadily becoming more difficult to do.
While "moderation" can work as a valuable philosophy in a variety of areas, it will not solve our political woes. Nor will expanding the franchise, increasing the diversity of our communities and our newsfeeds, or adopting a more respectful attitude toward our ideological opponents—as laudable as those things are. Our political woes are more endogenous to the system in which they've arisen than most people realize. Or, in layman's terms, don't hate the player, hate the game.
That schoolyard phrase encapsulates the three primary missteps in West's essay. First, the increasing centralization of government over an increasingly decentralized and diverse people will inevitably create conflict. Second, as long as centralizing politics continues to push diverse people into unstable collectives, it will be fruitless to bemoan the negative and hateful attitudes that people develop as a consequence of that centralization. And third, the increasing diversity of political opinions, social values, ideological niches, and community structures is not something we should lament but celebrate. We instead need to find a political structure better attuned to it.
The old model of centralized government simply doesn't work for this new level of diversity, and that's okay. All political theories are contingent upon human behavior and underlying social realities. The small Athenian polis was contingent upon the small, relatively homogeneous population of Athens as well as existing community and family structures. Similarly, Spartan authoritarianism was contingent upon the militarized orientation of Spartan society. The American governing project is orders of magnitude larger and more complex than those, but it still suffers from the same underlying contingencies. When the government's aims and form no longer match the people's, cracks develop.
Often, the first sign of those cracks are laments about the quality of the people, and questions about whether they are still worthy of their government. Currently, that comes in the form of complaints about political animosity, voter ignorance, and low voter turnout. Next might come attempts by the government to fix the "underlying problem" of the people, perhaps through mandatory voting or educational programs. When those fail—and they will—then perhaps we can get to addressing the true problem: a federal government that is simply too big and centralized to effectively rule over 330 million wildly diverse people.
The Framers of our Constitution understood that centralization was a dangerous tendency in political systems and that it wouldn't work in America. In learning how the American colonies united against the British, we tend to gloss over the diversity that existed underneath that unity. The colonies were a patchwork of different ethnicities, cultures, religions, and languages. By the time of the Revolution they had come to understand that it was important to unite against a common foe, but they had no illusions that unifying could do much more than provide for the common defense of the colonies.
Consequently, the first American constitution, the Articles of Confederation, represents that thinking: a "firm league of friendship" was needed between the colonies, but not much more. Such a friendship doesn't imply a high level of control. Friends don't tell each other how to run their households, how to raise their children, or what value system they should live under. Friends are there to help out when needed, but not to run each other's lives.
In time, of course, some came to see the Articles of Confederation as lacking, and they proposed a convention to "render the constitution of the Federal Government adequate to the exigencies of the Union." The resulting four-month-long Constitutional Convention primarily dealt with the question of how to safely increase the power of the federal government without it becoming a danger to the rights and liberties of the people. The proposed Constitution offered a delicate balance, but one that the Federalists believed could be maintained.
The "Anti-Federalists," however—the Pharisees of our political religion—believed that the proposed Constitution vested an uncontrollable amount of power in the federal government. That power would eventually rear its head and create problems. In a remarkably prescient essay, published only a month after the Constitution was signed, the Anti-Federalist "Brutus" warned that "[t]he powers of the general legislature [Congress] extend to every case that is of the least importance—there is nothing valuable to human nature, nothing dear to freemen, but what is within its power." Consequently, Congress "has authority to make laws which will affect the lives, the liberty, and property of every man in the United States; nor can the constitution or laws of any state, in any way prevent or impede the full and complete execution of every power given."
Yet Brutus's true prescience was shown in his understanding of what this would do to a diverse country. After all, the "territory of the United States is of vast extent; it now contains near three millions of souls, and is capable of containing much more than ten times that number." Should we reasonably expect "a country, so large and so numerous as they will soon become, to elect a representation, that will speak their sentiments, without their becoming so numerous as to be incapable of transacting public business?"
Brutus is thought to have been Robert Yates, a prominent New York judge and politician who attended the first part of the Constitutional Convention as a New York delegate and left when he became convinced that the convention was proposing a government that was both illegal and unwise. He was a "small republic" man, a follower of Montesquieu's conviction that an effective republic had to be small to prevent "men of large fortunes" from "oppressing [their] fellow citizens." This is especially true when the citizenship is diverse. Yates's most prescient passage is worth quoting at length:
In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other. This will retard the operations of government, and prevent such conclusions as will promote the public good. If we apply this remark to the condition of the United States, we shall be convinced that it forbids that we should be one government. The United States includes a variety of climates. The productions of the different parts of the union are very variant, and their interests, of consequence, diverse. Their manners and habits differ as much as their climates and productions; and their sentiments are by no means coincident. The laws and customs of the several states are, in many respects, very diverse, and in some opposite; each would be in favor of its own interests and customs, and, of consequence, a legislature, formed of representatives from the respective parts, would not only be too numerous to act with any care or decision, but would be composed of such heterogeneous and discordant principles, as would constantly be contending with each other.
While the Anti-Federalists partially lost the fight over the Constitution—but importantly secured the adoption of a bill of rights—we should not remember them only as benighted fools standing athwart the obvious progress of our sacred founding document. The question at the heart of the Federalist/Anti-Federalist debate was not whether having a large central government with power over everything was a good idea. It was whether the Constitution in fact created such a government. Essentially every Framer and member of the founding generation, from Washington to Adams to Madison to Yates, would have agreed that it would be a mistake to create a constitution that "vested great and uncontrollable powers" in the federal government, in Brutus's words. The Federalists believed their document didn't do that.
Now, unquestionably, we have such a government. To highlight the absurdity: we have a governing system where it is simultaneously legal and illegal to smoke marijuana in Colorado. That means someone screwed up somewhere, and it wasn't the states, which certainly always had the power to regulate drugs within their borders. Rather, it was a federal government and cooperating judges that "found that the power retained by individual states, small as it is, [was] a clog upon the wheels of the government of the United States," again in the words of Brutus.
Consequently, the diverse virtues, vices, pleasures, and passions of 330 million people are funneled into Washington, D.C. to fight over how "we" want to live as a country. Yet that truly royal "we"—or perhaps it should be called the "democratic we"—is the animating fiction of our centralizing politics. Our "we" is now produced by the razor-thin margins by which our national elections are decided. "The people have spoken," the winners claim, "and now we're going to ram it down the losers' throats."
That, of course, is an essential characteristic of democracy, that the losers must suffer through the results. But an essential characteristic of a properly constructed republic is that there are limits to what can be inflicted on the losers. Those limits, at least as originally contemplated in our constitutional order, ensure that losing a national election only affects truly national issues. It won't greatly affect whether citizens can live their lives in accordance with their deepest values: how to raise and educate children, how to manage health care and the choices that affect it, how to thrive as a family and as a community.
No wonder we hate each other. We're living out an ongoing season of "wife swap," in which two groups with wildly different values are forced to live together. "Let's see what happens when a vegan is forced to live with a big-game hunters" may be good for television, but it's bad for a nation.
The behaviors lamented by West —the death of moderation, the segregation of news sources, the geographical divides, the cross-party hatred—are more a product of this system than some exogenous source. High-stakes, winner-take-all elections produce high-stakes, winner-take-all behavior. Politics makes us worse, especially the more that politics matters. Add to this the centrifugal forces of diversifying information sources, cultural influencers, entertainment affinities, and much more, and you've got an unstable situation. And asking people to be better won't help.
But diversity of opinion, information, and values is only a political liability if those on the "other side" have undue control over your life and your values. A creationist family and an evolutionist family can be next-door neighbors and great friends. Force them to fight over which theory will be imposed on the other's children, however, and that friendship is likely to fray. Do that on a national level, where representation is more attenuated, and you're likely to see entire swaths of the country hating each other.
Moderation, therefore, is a red herring. Moderation exists within a framework of shared values, and it hashes out the differences through concession and mediation. But in a world where politics has become war due to centralizing forces, a world where, as Hillary Clinton put it, "you cannot be civil with a political party that wants to destroy what you stand for," moderation is akin to hoping for spontaneous mutual disarmament. But that's not how wars end. Wars end when combatants agree to establish borders, set up jurisdictions, and stay on their side. Our political war began when the borders and jurisdictions set up by the Constitution were broken down or entirely removed, and it will only end when they're re-established.
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