Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

Will anyone ever connect the dots?

By Jack M. Balkin

Today's column in the New York Times by Tom Friedman justifiably lambates Ameican politicans, of all stripes, for, shall we say, a certain lack of seriousness regarding energy policy (and much else). One of the books he discusses is ?The Post-American World,? by Fareed Zakaria. Friedman writes,

For too long, argues Zakaria, America has taken its many natural assets ? its esearch universities, free markets and diversity of human talent ? and assumed that they will always compensate for our low savings rate or absence of a health care system or any strategic plan to improve our competitiveness.

?That was fine in a world when a lot of other countries were not performing,? argues Zakaria, but now the best of the rest are running fast, working hard, saving well and thinking long term. ?They have adopted our lessons and are playing our game,? he said. If we don?t fix our political system and start thinking strategically about how to improve our competitiveness, he added, ?the U.S. risks having its unique and advantageous position in the world erode as other countries rise.? (Italics added).

This follows by a day a column by David Brooks decrying the scandalous farm bill, which John McCain, alone among the presidential candidates, has opposed. Writes Brooks,

In the current Weekly Standard, the brilliant young writer Yuval Levin suggests that McCain put reforming America?s decrepit governing institutions at the center of his presidential race.

Levin points out that the health care system, the immigration system, the regulatory system and the entitlement system all need reforms. Instead of talking about personal honor or perpetual tax cuts, McCain should focus relentlessly on modernization.

In fact, Monday in Chicago, McCain declared: ?In all my reforms, the goal is not to denigrate government but to make it better, not to deride government but to restore its good name.?

Obama, sad to say, failed the farm bill test. McCain may have found a theme for a nation that has lost faith in its own institutions. (All italics added)

Needless to say, I find much to agree with in both of these comments, but, also needless to say, I am almost despondent about the inability of these pundits to discern that "modernization" or "fixing our political institutions" might require a look at our decidedly 18th-century Constitution. Why are we stuck with this execrable farm bill? Perhaps highly-paid lobbyists have something to do with it, or the fact that Iowa has been able to extort remarkable rents by its first-in-the-nation caucuses and the necessity to pledge fealty to ethanol. But it's also relevant that the rural states benefitting from the bill are grotesquely overrepresented in the Senate and care very deeply about continuing the redistributive flow of money from those who live in large urban states to the farmers, virtuous or not, who dominate the politics of these states.

This is an empirical question, of course. Perhaps we'd be getting just as bad a bill if the Senate were equitably apportioned, but one can surely doubt this. The House, presumably, felt a necessity to cave in recognition of the power of the farm states in the Senate and, of course, as Nancy Pelosi points out, the bill has been loaded with some programs attractive to liberal Democrats.

In any event, I am curious what Brooks means by "modernization" of government, and if any serious discussion can really continue to pretend that the 800-pound elephant in the room--our 18th century Constitution--isn't there. Who knows, maybe McCain will emulate Teddy Roosevelt and actually raise some serious constitutional questions (beyond the silliness of whether the Canal Zone was part of the United States), but I wouldn't hold my breath. And, alas, I'm absolutely confident that Obama, for all of his brilliance, won't touch constitutional critique with a ten-foot pole because he'd be instantly castigated as "un-American."

Full post as published by Balkinization on May 21, 2008 (boomark / email).