Puzzling Questions

the-once-and-future-king-20141Legal scholarship is too often a game of small ball, where vast efforts are expended in pursuit of minimal gains, like a game of football with 50 downs, or trench warfare where lives are expended for mere inches. How vastly more interesting are Sir Thomas Browne’s puzzling questions. “What Song the Syrens sang, or what name Achilles assumed when he hid himself among the women, though puzzling Questions, are not beyond all conjecture.”

For the modern don, these are perhaps a little too obscure, but I can think of other puzzling questions that beg for an answer, such as just why America is quite so corrupt. In Transparency International’s Corruption Perceptions Index, the U.S. comes in at number 19, well behind most other First World nations in a measure of political corruption.

What, you thought Illinois didn’t count?

Sociological explanations might first come to mind, along the lines of what Marty Lipset has told us about America. These leave me unsatisfied, however, as they are tautological: They come down to saying that social norms are different because social norms are different. I incline, therefore, to institutional explanations that focus on America’s distinctive legal culture.

One might, for example, point to corrosive effects of a rights culture on steroids, where people are encouraged to press their claims without regard to the harms they cause. My body, myself—and I have a right to an abortion until the moment of birth, or perhaps a few days afterwards. I have a right to a same-sex marriage? Then bakers have a duty to make me a wedding cake.

I have something other in mind, however, the constitutional differences between presidential government in the United States and the parliamentary governments in the countries that rank higher (less corrupt) in the Corruption Perceptions Index. Not to mention the significant correlation between corruption and presidential government I found in The Once and Future King (Encounter Books, April 2014).

Firstly, the much-touted separation of powers immunizes politicians from oversight. The Administration is able to cover up its scandals—Benghazi, Fast and Furious, the IRS—by stonewalling Congressional investigations. There are rotten things going on, we all know it, and it’s all okay. It’s part of what makes America America.

One doesn’t see this in parliamentary governments, where corrupt, incompetent or merely unpopular prime ministers can be turfed out at any time in a non-confidence motion. As well, the Opposition has the option of keeping an issue alive as long as it wants. Oh, there’s always corruption of a kind, but you’d be amazed at how trivial it is by American standards. For example, Senator Mike Duffy has been suspended from the Canadian Parliament for accepting a gift to repay travel expenses of $90,000 that he had the right to expense. That’s hard to explain to Americans.

Then’s there’s the problem of minoritarian misbehavior. At the 1787 Philadelphia Convention, Madison expressed a concern about majoritarian misbehavior, for a majority that oppresses a minority. There’d be less of that, he said, in an extensive republic such as the United States than in a single state, because it would be harder for a majority group to coalesce in a large country. But there’s also an opposite problem, of minorities harming majorities, seen in the special earmarks demanded by Congressmen, in the Robert Byrd Centers for this that and the other thing in West Virginia, or in John Murtha’s Johnstown International Airport. One saw a spectacular example of earmarks in the scramble to pass Obamacare, with its “Louisiana Purchase” for Senator Landrieu and the “Gator Aid” for Senator Bill Nelson. Senate Majority Leader Harry Reid was unapologetic about the last-minute deals. “You’ll find a number of states that are treated differently than other states. That’s what legislating is all about. It’s compromise.” The President agreed. “As with any legislation, compromise is part of the process.” Earmarks were said to be banned after the Republican takeover of the House in 2011, but they really haven’t gone away.

That doesn’t much happen in a parliamentary system. A party must go to the polls as a national party, and the perception that a special region is favored, that there’s an odor of corruption, can humble a party. That’s what happened to the fat and comfortable Canadian Tories in 1993, when they fell from a majority of 156 seats down to 2 seats. Couldn’t happen here.

Might all this plausibly has something to do with perceptions about American political corruption? When an American says “politics ain’t beanball,” what he means is that political corruption doesn’t much bother him.

The Founders thought the Republic would survive if the people were virtuous. But what if republican institutions themselves sap one’s virtue?

Of course, cher lecteur, this is all very speculative. So how would you explain it?

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 01, 2014 at 12:15:49 pm

Would you accept the suggestion as to a direction for the inquiry?


Actually, the fragmentation of sovereignty in the US.

In the US, federal sovereignty was assigned to the representative body (Congress), subject to censorship by the judiciary, in accordance with the consent of the electorate which ordained the Constitution.

Over time, the representative body has default it sovereignty to "managers" in the establishment of an Administrative State that provides benefits and ameliorations from burdens to particular interests through processes which do not fall within the constitutionally delineated mechanisms of government.

Over that same time the representative body has lost the political will and motivations to monitor, let alone control, the "managers" of the Administrative State; principally due to the shift in the functions of the members of the representative body from the original constitutional delegation, to the representation of those particular interests served by the Administrative State.

The ever widening dispersions of devolved authority (sovereignty) has created irresistible opportunities and motives for aggrandizement of and by the recipient individuals and groups. Where aggrandizement is an objective, the means selected for its achievement or maintenance will include the most expedient, without regard to virtue or morality.

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on May 01, 2014 at 12:37:22 pm

"Firstly, the much-touted separation of powers immunizes politicians from oversight. The Administration is able to cover up its scandals—Benghazi, Fast and Furious, the IRS—by stonewalling Congressional investigations. There are rotten things going on, we all know it, and it’s all okay. It’s part of what makes America America.

One doesn’t see this in parliamentary governments, where corrupt, incompetent or merely unpopular prime ministers can be turfed out at any time in a non-confidence motion. As well, the Opposition has the option of keeping an issue alive as long as it wants."

In a nutshell what this says is that impeachment is recognized for what it is - a political decision. After all, what is the removal from office via a no-confidence vote if not an impeachment! In that sense there is a certain forthrightness about Parliamentary government absent in the US structure. Of course, governments may suffer (to the peoples benefit, perhaps) a bit of instability as a consequence. This may result in a somewhat less entrenched "governmental faction" (in the Madisonian sense) pursuing / advancing its own interests in combination with its ostensible rival(s) than is common in the US.
Yet, it is in some measure, impossible to fairly critique Madison, et al, for the failure of the "counterbalancing structure they developed because it quite simply no longer exists. Following the 17th Amendment, we abandoned the residual notion of a Federated Republic AND now have National Parties - parties not too dissimilar from those which you highlight in your essay. In theory, the States would act as a brake upon the National Legislature via their Senate representatives. For a time, it did seem to hold the Congress in check. Our problems have only worsened in the intervening years. Thus, I must question whether the resultant enhanced party visibility and national focus of the Parliamentary Parties which you advocate would serve to correct our deficiencies.

To say that the issue is ultimately one of virtue, both in the citizenry and the legislature, etc, while true, really begs the question and provides nothing other than a convenient rubric. How does one assure such virtue?

I, for one, don't have a bloody clue! I do suspect that so long as government empowers itself to PROVIDE sundry "benefits" to countless and ever expanding subsets of citizens - we have little or no chance of finding and implementing a corrective.
Oh well, perhaps, I should simply enjoy my Social Security check and shut up!!!!

read full comment
Image of gabe
on May 01, 2014 at 14:06:31 pm

Now that i am over one of my recurring bouts of "political depression" let me add the following:''

With respect to the issue of corruption, something about which Madison, Wilson, Morris, etc spent some deal of time considering and ultimately created a structure to counter, it may be helpful to examine the role of the Branch of government which they (mistakenly) assumed to be the least threatening to their collective enterprise. i.e. the Court.
A short digression first:
I have a dim memory of receiving a block of instruction in the early days of my elementary schooling on the "occasions of sin" - those actions, situations, etc that could induce or permit impermissible action - and that one should avoid them as best one can.

Consider then the occasions / opportunities for impermissible action confronting the Legislature. Via legislation, the Legislature is pretty much free to promote, tax, regulate any activity (or in the case of Obamacare, inactivity) pursuant to both its' enumerated and un-enumerated powers. That is the situation with which we are currently confronted.
To say that this was not always so, is both correct and "off-point."

Wilson and Madison, both of a nationalist bent, made a concerted effort to enhance the powers of the Federal government. (Forget the genesis of this concern for the moment). In this effort they were successful - perhaps more successful than they either anticipated or desired. In particular, the Committee on Detail so constructed both the Commerce Clause (not without good reason: see early State mis-behavior) and the several Necessary and Proper Clauses as to provide an almost bottomless reservoir of institutional power to the Legislature.
Soon thereafter, Legislative attempts to create a Bank, "internal improvements", etc etc began to be be both discussed and legislated.
Initially these attempts were rebuffed by the Executive and to a certain extent the Court. However, over time, the court began to rule on various Commerce Clause issues and the latent (implied?) powers of Congress began to be recognized. I do not take issue with the early commerce Clause cases as to my simple mind seem to be fairly consistent with the text of the Constitution and were, like the pre-ratification issues before them, a much needed corrective to impermissible State action.
Like it or not, the Congress was granted sweeping powers over Commerce.
Congress was also granted all powers "necessary and proper" to execute its legislation. It was also granted, via the 2nd and 3rd "necessary and proper" clauses the power to enable, if you will, the powers of the Government of the United States as well as any Department of the United States.

goodness gracious, what a cornucopia of implied powers this presented. why, a dedicated Legislature could enact just about anything it could envision. More perversely, it could enact special legislation favoring a small but important faction. It proceeded to do so throughout the 19th century, although at a somewhat more controlled rate of growth than that to which we, in our lifetimes, have become accustomed. Still, the courts mediated this role to some extent and received criticism from both sides for their efforts.
The problem, while always present, became much more apparent during the reconstructured (intimidated?) New Deal Court where after initially withstanding the abuse of the Commerce Power, the court bowed to the popular will and a rather forceful Executive. Consider its bequest!!!! countless unnameable agencies with vast swaths of power over vast sectors of the economy, state "police powers," environment (a later addition), etc. The Courts now acted as an enabler of the surge in government arrogated power(s).
Yet, a credible case can be made that all of this is permissible under both Commerce and N&P powers. Even when the Court applies its "scrutiny" reviews, does it not consider whether an agency action is necessary and proper. goodness, clever folks can make anything seem necessary, can't they?

So what we have is a governmental structure where the "occasions of sin" have been not only sustained but steroidally engendered such that the modern Legislator has innumerable opportunities for corruption. Regrettably, they appear quite willing to accept the invitations as they present themselves with a rather high degree of rapidity. (This of course ignores the Legislator chasing the opportunities himself).
Of course, the industrious Legislator is also quite free to "create" new opportunities and then present them to a favored few.

The court has assisted in this effort with much of its jurisprudence and has further enabled / exacerbated the flaws in the Drafters design - not that the Legislature or Executive were going to ignore them anyway.

So yes, Mr Buckley, corruption may be termed a natural outgrowth of our government structure. You are again correct in asserting that that very same structure allows one to hide his mischief between separation of powers, agency proliferation,etc etc and in some instances "deferral" to the Black Robes, our modern day version of the Jesuits on the Supreme Court.

Again to the extent precision has been sacrificed to concision, I apologize!

take care

In some respects, the Court could not help but further the

read full comment
Image of gabe
on May 01, 2014 at 14:17:01 pm

Earmarks are penny-ante stuff of little impact, really not worth mentioning (by the way, the man was Robert Byrd, not Richard). A better example of minoritarian misbehavior is our bipartisan ruling class's evisceration of rational limits on immigration (which they have succeeded in doing even without passing "comprehensive reform"), which is contrary to both the wishes and the interests of the majority of US citizens. But perhaps this is one of those inconvenient facts we're not supposed to notice at a nice place like this website (which I read frequently and like very much).

read full comment
Image of djf
on May 01, 2014 at 20:27:45 pm

DJF and a continuation of my earlier posts:

I, too, thoroughly enjoy this site and it affords me the opportunity to rant and rave with minimal interference.


With respect to DJF comments and the authors on minoritarian misbehavior:

I believe, and history may support this, that it is not specifically "minoritarian" behavior that leads to the contemporary intimidation of the majority but rather an AMALGAM of minority factions both fostered and "created" by the Democrat Party (yes, their is no "-ic" limiter in the name of said party."
Madison and other drafters have been criticized, and rightly so, for an inability to foresee the rise of "Party", specifically large factions united by a common ideology / cause / project, etc. This assertion is not without some degree of merit.
Madison, et. al. believed that a large co-extensive republic would dilute the influence, no, even the formation of significantly powerful factions, that would work their particular mischief upon the body politic. Given their particular circumstances they may be forgiven for this mistaken belief.
Indeed, for an extended period of time, this may be said to be the case for much of American political history. Until the coming of the War (civil, of course) one can argue that there were not true "national" parties with influence sufficient to engender the type of corruption, both moral and financial, with which we are presently confronted (I am, of course, open to counter arguments from my agrarian friends over at Nomocracy in Politics).
Nevertheless, our present condition could not have arisen were it not for the "genius" (and i mean that in a begrudging manner) of the New Deal Coalition assembled by the Democrat Party. As much as I dislike FDR, one must admit that he was a "titan" of American politics and shrewd almost beyond measure.
FDR and his minions were able to forge a coalition of POOR rent seekers (yep, not all rent seekers are well placed, are they), leftist ideologues, unionists, etc into a quite forceful and powerful coalition that dominated not only the public consciousness but also the Legislature AND the Court. Consequently, this coalition worked its will on the American constitutional system.

But we ain't done yet, kids.

It was not until the LBJ years and the Great society that a party known for over 200 years as a party of racism and segregation was able to convince a substantial portion of the minority electorate that there were sufficient "goodies" for them to switch allegiances. Both FDR and LBJ forged a natioanl coalition of minorities - each promised some small "goodie" in exchange for their compliance with positions about which they would otherwise be gravely concerned. As an example, a large swath of African- american Church leaders will support the Democrat party (not just Obama) solely because of the promise of recompense, the newly inflated notion of civil rights (Affirm action, etc) while simultaneously holding their collective nose at such current Democrat Party wish lists as universal gay marriage, etc etc etc. So too will union members support said party because the Dems are on the "side of labor' even thought union members may also be against gay marriage, weak foreign policy,and IMMIGRATION (although this is starting to show some fractures).

Absolutely brilliant on their part (c'mon, let's be honest here, it is).

In a sense Madison and the boys were correct: a large republic with varying interests would limit opportunity for "factional" control. Unfortunately, he could not see a combine of interests coalescing in order to each obtain their little slice of the pie. Heck, I doubt that in 1928 anyone else would have either.

So we have a situation where minoritarian behavior is not really the dominant political force with which we must contend; instead we are confronted by a "coalescent faction" that has wreaked more damage upon the character of this once great nation than any single majority faction could have ever hoped.
We could of course discuss how this is the result of a loss of virtue - but I am not feeling very moralistic at the moment and i doubt it would do any damn good anyway.

take care

read full comment
Image of gabe
on May 01, 2014 at 22:29:08 pm


I can't say why blacks and Hispanics vote for the Democratic Party today. But historically, there is a direct correlation between Democratic Party initiatives supporting civil rights and minority support for the party. The alignment began in the 1930s, but really firmed in 1948, when Truman desegregated the armed forces. In the 1950s, blacks supported Democrats two to one over Republicans, but 35% of the black vote would be a great turn out for Republicans today. The decisive alignment happened in 1964 and 1965, following the land mark civil rights legislation of LBJ. I suspect that Reagan's southern strategy cemented the issue for at least a generation. The point is, it's not just the expansion of entitlements, or even mostly because of them, that blacks vote Democratic today. The vast majority of great society entitlements, especially the ones that have endured, go to the middle class, not solely or largely to blacks. If we wish to do something about our current predicament, it is best that we understand accurately how it came to pass. If the Democratic Party bought the support of blacks, it was by ending a variety of invidious legal distinctions that, to be sure, were largely enacted by earlier Democratic politicians. But the key thing is that the guys who ended it were guys like FDR, Truman, and especially LBJ. That's not about expanding entitlements.

read full comment
Image of Kevin R. Hardwick
Kevin R. Hardwick
on May 01, 2014 at 22:40:17 pm

How would I explain it? I'll put on my engineer's hat for a few minutes and explain.

The US government lacks an effective negative feedback mechanism to keep government within its limits. Mike Rappaport has been writing recently about the phenomenon of the 10mph permissiveness of excess highway speeds. In essence, the highway patrol generally allows people to drive up to about 10mph over the speed limit before handing out tickets. If the police officers were more strict, they would get more complaints, lose funding at election time, lose their chief at election time, etc. If the police were less strict, they would lose the respect of the pubic, there would be more drivers acting like idiots, the people would complain by cutting funding the police at election time, replacing the police chief at election time, etc. The strictness of police enforcement is controlled by feedback from the public.

In the design of the US government the idea was that a democracy could be kept from performing an endless train of stupid democracy tricks through the system of checks and balances, and through negative feedback via elections. Or at least, those were the ideas that was marketed to sell the Constitution. We engineers have a love-hate relationship with marketers. They bring in sales, but they promise the sun and the moon when we can only deliver a heat lamp and a florescent light. In the debate over the release of any product there is always a debate about whether or product is ready for release. One faction insists that the product must go out asap, the other insists that more bugs must be worked out and more critical features be added. The early release faction always says that the engineers can work out the problems later, after the sale is made. In promoting the release of the Constitution the Americans decided to go with an early, but buggy, release. The Constitution as drafted did not provide for effective feedback mechanisms to keep the government within healthy limits.

The negative feedback via elections did not negate corruption of elected officers. It had just the opposite effect. The voters generally elect the representative who does the best job of bringing home the bacon. The representative must pull out all the stops to do so. This creates a system that directs the most effective takers into office, and it sets up the entire system to function as a mechanism for directing as much general government money as possible to the local citizens. It is an atrocity. It is a formula for bankrupting a nation.

The checks and balances failed with the formation of the parties and competition for money for campaign financing. The party leadership coordinates the government as a whole, not only at the national level, but at the state and local levels as well. The feedback mechanism of internal contrasts between branches is broken by the binding of party. The current President is a man of no qualifications whatsoever to be Chief Executive. How did he get to be President? One of the parties wanted him to be President, and they successfully marketed him as the right man for the job. Both the legislature and the President are extensions of the parties. When the parties collude, there is pretty much nothing the public can do about it. What is the feedback mechanism here? The representatives require the support of their party to be elected, therefore the party, more than the public, dominates the controlling feedback. The government increasingly exists to support the desires of the parties, not the public. The parties collude to break the system of checks and balances.

Likewise with campaign finance. The parties feed on campaign finance, which they get through the representatives, who collect through donations from wealthy "contributors." I put "contributors" in quotes because it is often difficult to tell the difference between money given for altruist reasons, and money given as a bribe to entice a representative to do something they would not otherwise be motivated to do, and money given as extortion when a representatives threatens to do something that will cost the "contributor" money. The feedback mechanism here is not public opinion, but maximizing campaign finances to gain the support of the party. See Peter Schweizer's excellent journalist book on the subject titled Extortion for more on this.

A lack of feedback mechanism also applies to the Court. The public has no input on removing undesirable officers from the court and little input on seating desired officers to the court. Instead, the executive and legislature appoint the members of the court at the direction of the party leadership. The role of the court is to oversee the executive and legislature. This is like putting the bank robbers in charge of selecting the police and judges, or at least only the judges since the Constitution does not provide for police on government. Without police, the robbers can be tried and punished, but they cannot be arrested. And in our system if they are brought to court they are tried by judges who they put on the bench. In this system, where is the negative feedback from the public?

I do not see advantage in parliamentary government per se. Great Britain has a parliamentary government, and to me at least it looks like a mess. We Americans fought very hard to get rid of it in 1776 because it was deeply corrupt and inept.

I'm curious about the how the systems of feedback works and does not work in Canada as contrasted with America. I wonder, to what degree should the rule of law be very strict and absolute and authoritarian, and to what degree it should be very relaxed and permissive and democratic. Under what circumstances do overly strict or relaxed enforcement of laws cause problems? In the US the overly relaxed enforcement of Constitutional limits on government office holders certainly causes numerous problems. As an engineer I'm interested in how to tune the controls on the system to get the best performance out of it and how to repair the things that are not working right.

We Liberty Law Site readers are always happy to see well known authors such as yourself, professor Buckley, writing for LLS. Thank you for spending a little time with us. I will pick up a copy of The Once and Future King. I'm quite certain I will enjoy your insights. I enjoy your stylish wit and humor.

read full comment
Image of Scott Amorian
Scott Amorian
on May 02, 2014 at 00:28:25 am

The control system analogy does provide certain insights, but I would suggest that the model of government corruption not only lacks a negative feedback but contains a positive one as well. And of course, positive feedback systems are inherently unstable.

In a political system block diagram, the feedback loop would be labeled "accountability" for a negative feedback (stable) system, and "money" for a positive feedback (unstable) system. In a well designed political system, increases in political power would beget increases in accountability, which would dampen the ability to accumulate more power. In a poorly designed system, those with power could use it to amass and direct wealth in a manner that increases their power. *cough*...(Harry Reid)...*cough*. This is the essence of corruption: lack of accountability and ability to monetize power so that it can be converted to activities that increase the power of the current authorities; think "teachers unions."

Now read Richard's post. A big problem with the administrative state is that it is largely becoming unmoored from accountability; bureaucrats can, in some cases, determine the extent of their own authority, and constrain the recourse of those aggrieved by overreach. Presumptions of immunity and executive discretion serve to insulate the venal, the maliciously ambitious and frankly sociopathic from accountability. Delegations of authority from the legislative to executive agencies exacerbate the mischief, leading the trail of accountability into a maze of unelected functionaries, mindless regulations, pointless red tape and tenured incompetence.

Some political systems are certainly more prone than others to corruption, but this does not tell the whole story. Ultimately, corruption is a product, not so much of a particular system, as it is of an uninterested and distracted populace.

read full comment
Image of z9z99
on May 02, 2014 at 10:49:24 am


Fair points; however, I would not agree that the Democrat Party did anything until LBJ to end discrimination. I suspect that you are of an age that would allow you to recognize the term "The Solid South" - it of course referred to the fact that the south was solidly in the hands of the Democrat Party. Incidentally, it was also the home of some of the most virulent segregationists in the nation. No this is not an ad hominem attack. What i will refer to is the New Deal coalition AND FDR's steadfast refusal to support such anti-discrimination laws as "anti-lynching", voting rights, etc etc. This was a conscious decision on the part of FDR and his political strategists.
Moreover, as Shlaes, Powell and Folsom have shown this same coalition denied funds to those areas in the South that provided electoral support to the coalition - funds which could have been used to materially affect the lives of ALL southerners. Instead monies went to those states that were questionable for the Democrat Party. In short, it was a well calculated series of bribes / inducements.
Additionally, while it is true that Truman did order mixed military units, he consciously did NOT enforce it. Dwight D. Eisenhower did that (a much underrated fellow, that Ike).
Reading through the proceedings of the US Congress during the period from 1932 through LBJ's assumptiion of the Presidency one is confronted with the fact that it was LBJ, acting as Senate Majority Leader who played the dominant role in defeating every single piece of Civil Rights legislation introduced into the Congress. (He played a similar but less obvious role while in the House as the acolyte of Sam Rayburn).
Credit is due to Johnson for his eventual leadership in Civil Rights - but make no mistake - just as with FDR it was a "political calculation." Robert Caro quotes him as saying, "I'm gonna get them n######'s into the Democrat Party for a hundred years" (words to that effect). Further, it must be remembered that the Civil Rights Bills of the 1960's were only passed because of Republican Votes. In fact more GOP's voted for it than did Dems and this was obvious to anyone who could read a newspaper.
Now did the Dems than position themselves as the party of Civil rights - indeed they did - they are rather clever in a nefarious sort of way.
Also the "so called" Nixon strategy was about race only to the extent that one accepts the narrative of the media. I would also add that the South did not suddenly turn Republican after that. Electoral returns show that the Dems continued to win a number of Southern states right on through the Reagan years.
Ultimately, the Dems have pursued a clever strategy of "gifting" for approximately 100 years. It has certainly been successful in bringing in working class whites and blacks. What was the New Deal except government sanctioned gifting (I am not here denying that there may have been a temporary need for some programs).
The genius of the strategy comes from LBJ who saw that by adding civil rights to their platform promises they could "capture" the black vote for a hundred years.
The fact remains that it is still an amalgam of minority factions that is the impetus behind the Democrat Party's electoral success.

read full comment
Image of gabe
on May 02, 2014 at 11:00:11 am

Z & Scott

Good stuff. You are right about marketing folks - it brings back memories. In some ways that is what our Parties have become. We promise everything and then let either "business revenues" solve it or let the Courts have it. What the heck we were just marketing it anyway.

So in some sense the reason for an uninterested populace is that they are simply deluged with "gifts" and promises of such better things to come; the promises are constant and ever expanding.
The Dems have been exceptional at this little game and have gotten all of the other departments to buy: manufacturing, I.E. finance and( as Scott correctly points out) "kicking and screaming" Design and Manufacturing engineering who know they have the make the little bugger work or at least kill as few people as possible. (God, I miss it sometimes).

"Ultimately, corruption is a product, not so much of a particular system, as it is of an uninterested and distracted populace."

read full comment
Image of gabe
on May 02, 2014 at 11:42:40 am

“In a nutshell what this says is that impeachment is recognized for what it is – a political decision. After all, what is the removal from office via a no-confidence vote if not an impeachment?” Good eyeballing, Gabe. Professor Buckley did not address this in this essay blog. It has been nothing more than a shadow on paper for most professional scholars. It is quite possible it may be addressed in his book, and he’ll bring it forth for us. That was a good summation in your later post: “So we have a situation where minoritarian behavior is not really the dominant political force with which we must contend; instead we are confronted by a “coalescent faction” that has wreaked more damage upon the character of this once great nation than any single majority faction could have ever hoped.”
Thank you Gabe, your blog friend, John

read full comment
Image of John E. Jenkins
John E. Jenkins
on May 02, 2014 at 12:33:12 pm

These threads do have a way of veering off from the originating topic (in this case, corruption) to things such as the accomplishments of James a Farley (even though not specifically mentioned).

In their generic function, factions would tend to deter corruption rather than enhance it.

But, back to the subject at hand, corruption, and the likelihood that the fragmentation of sovereignty (resulting from the devolution of that sovereignty from those bodies invested with that sovereignty by the Constitution) creates a basis for corruption.

Those bodies created for representative purposes and with specifically structured methods of carrying out those functions, have long departed from the prescriptions and intentions of the original delegations of sovereignty.

As noted by Z, the fragmented sovereignty has moved to the unelected. First, in the legislative processes themselves, which are now conducted and control by the unelected (staffs and committee staffs, e.g.). The legislation (Rules of Policy) produced by those processes has degenerated to little more than descriptive frameworks of objectives and possibilities. Next, the authority (sovereignty) and discretion for determining the means of seeking those objectives and possibilities is devolved (without intent to monitor or control, but simply to create perceptions) to other unelected individuals and groups - thereby leading to conduct of aggrandizement in which corruption is an expedient mechanism.

We are also observing the further devolution of what has been the reserved power of funding. Various segments of the Administrative State have now been given or arrogated degrees of "self funding" or uncontrolled funding (CFPB, e.g.).

If the factions, such as they are in today's political structures, did, in fact, exist for differing objectives of those constituting their memberships, the contests between the larger of them would tend to cause those members to hew to the original delegated functions of the representative bodies. However, there is little difference in the principal objectives and motivations of those who constitute the members of the existing major factions. That has significantly reduced, or eliminated, the value of factions in the Democratic process of providing representative bodies for the functions originally intended by the constitutional delegation of sovereignty.

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on May 02, 2014 at 12:50:54 pm

Sorry you could not follow the thread.
Yes, I know of Farley and he was a mastermind.
However, the movement from original structure of Madison to commerce Clause to Sup court jurisprudence to FDR was all of a part intended to show the movement and progression from "certain ocassions of sin" through Court / Legislative reinforcement / enhancement of same culiminating in the political genius of the New Deal coalition. Unfortunately one could write many books on the topic - I chose to abbreviate the history and process.
But an amalgam of factions can, and in fact has been successful in imposing its will(s) upon us (just look at out history for the past 90 years). And yes, it will eventually fracture.
In any event I was responded to the essay's author's argument/ question as to whether something inherent in the US constitution causes or may engender corruption as well as his claim that Parliamentary government and a National Party would be effective in preventing it.
All of what you say regarding the administrative state is true - I was simply giving some motivation parameters to it.
take care

read full comment
Image of gabe
on May 02, 2014 at 15:11:30 pm


I was unnecessarily combative, in my post above. It was unintentional--sometimes the writing just develops that way.

Anyway, in the 1930s the black vote swung in the direction of Democrats. In the South, of course, most blacks did not vote, because they were effectively disenfranchised. Still, about half of the black vote went to Democrats, and that was a change from earlier decades, when most black voters went a Republican.

FDR has an ambivalent record on civil rights. He consistently disappointed civil rights leaders, mostly because, as you note, he had to appeal to white southern voters, who fully supported segregation. But he nonetheless has a positive record on civil rights. In 1941, he desegregated federal government hiring via the Fair Employment Practices Commission. Its hard to overstate the importance of this action for the subsequent development of civil rights.

You are certainly correct that civil rights had (and has) support from both parties, and you are also correct that the actions of politicians are tainted by political calculations. But you can't be selective about moral condemnation of politicians for doing this, since the politician who does not think and act this way does not get elected, and thus is never in position actually to do anything.

Anyway, I think we can profitably apply the distinction between negative and positive rights. Democratic politicians initiated programs, pretty consistently across several decades in the mid 20th century, that removed invidious legal disabilities on blacks. Sure, guys like Eisenhower followed through on them (Ike of course was labelled a "squish," and today would be called a RINO--today he would be unelectable as a Republican--same is true for Linwood Holton, the admirable Republican governor of Virginia). which as you say tends to be forgotten and for which we should (you and I do) admire them. But its the guys who initiated them that got the credit, and on the whole those guys were Democratic, not Republican.

Your thesis, if I understand you correctly, is that Democratic politicians bought the black vote with positive rights--entitlements. But I don't think the evidence supports that claim. Rather, they earned the allegiance of black voters by repealing repressive laws--a species of negative liberty. It's not so much that Republicans of the 1940s, 1950s, and 1960s opposed that, as it is that they were complacent.

read full comment
Image of Kevin R. Hardwick
Kevin R. Hardwick
on May 02, 2014 at 16:20:16 pm


"That has significantly reduced, or eliminated, the value of factions in the Democratic process of providing representative bodies for the functions originally intended by the constitutional delegation of sovereignty."

That was precisely my point - that the notion of factions as envisioned by Madison as distinct spheres of interest each competing with each other for legislative attention no longer applies. For this we are "indebted' to the tactical / political genius of the New Deal coalition (yes, Farley - but let us not forget that FDR was a shrewd politician and oversaw much of what Farley did) which convinced each of the factional elements to combine so that each may get a share while agreeing, often reluctantly, to go along with the needs of their coalition partners. To a certain extent today we see evidence of a "blending" of those previously variant interests into one united "entitlement seeking" entity. However, fissures are starting to appear as evidenced by labors dissatisfaction with immigration policy, Keystone pipeline / EPA / coal silliness and Healthcare.
With respect to the loss of "sovereignty" - quite right; however, one may argue that this could be the *result* of a structurally supported corruption and a lack of political virtue. It does serve the purposes of those who wish to hide their mischief behind separation of powers and the Court.
take care

read full comment
Image of gabe
on May 02, 2014 at 16:32:06 pm

OK, so this has nothing to do with my other long winded comments below.

While reading some reviewers comments on the author's book at Amazon regarding the US constitution not being designed to protect Liberty and the desire for a powerful Legislature, the thought once again struck me:
Did James Madison snooker everybody? Was he far more of a nationalist than we like to admit?
Just a thought!

read full comment
Image of gabe
on May 02, 2014 at 17:30:53 pm

Madison, like many British thinkers (and I think we have to consider Madison, like anyone born in the colonies, to be British) feared and hated factions. He believed them to be inevitable, in a free society. But he still hated them. His efforts to control them proved to be ineffectual more or less from the beginning, and became more so as transportation improvements in the 19th century made communication easier.

read full comment
Image of Kevin R. Hardwick
Kevin R. Hardwick
on May 02, 2014 at 19:40:15 pm


I did not think you were combative; on the contrary I thought perhaps one would see my response as a little combative. It was not intended.

Now as to Democrats leading the civil Rights charge, I take issue with that. It was a select group of Northern Democrats, Hubert H Humphrey in particular, who introduced much of the legislation ALONG with a significant number of Republicans from the North and the West - to speak of southern Republicans would be pointless.

And it was the Democrats, under the leadership of Senator Johnson who stymied these efforts. The Democrats have much to account for in this regard. As I indicated if you look at the voting record for the various Civil rights bills, you will find that more Republicans voted for it than did their Democrat counterparts. Funny story, Al Gore claimed that he and his family always supported civil rights - check it out his father voted against the 1972 bill. One could almost understand such a vote by a Senator from tennessee in 1960 but certainly not in 1972.

My point is not to say that the Democrats were universally against civil rights but that they have garnered too much credit for it. That however is the narrative and one finds some of the MSNBC folks announcing that Bull Connor or some other such miscreant was a Republican.
Most importantly, the party in Power and these were Democrats under LBJ, or Rayburn or Mansfield should be held accountable for their reprehensible behavior.

As for LBJ, oddly enough I have a soft spot for him and am willing to concede that his motives with respect to civil rights may not have been totally calculating. Reading about his youth of desperate poverty and his early efforts to ameliorate such conditions for his fellow West Texans, one is struck by the depth of his feeling for them and the "little guy" in general. It would not surprise me at all to learn that LBJ simply combined political calculation with a heartfelt desire to improve the lives of many millions of citizens.

read full comment
Image of gabe
on May 02, 2014 at 20:19:58 pm

and now for a different spin on it:


read full comment
Image of gabe
on May 03, 2014 at 00:49:32 am

"With respect to the **loss** of “sovereignty” – quite right; however, one may argue that this could be the *result* of a structurally supported corruption and a lack of political virtue. It does serve the purposes of those who wish to hide their mischief behind separation of powers and the Court."

Sovereignty has not been "lost." It has been damagingly devolved and is extensively possessed by the unelected. Sovereignty has been "fragmented;" and the conflicts from individual and group aggrandizement efforts in the exercise of that devolved sovereignty have begun to surface in meaningful ways. The fractures from these uses of the mechanisms of the federal government have begun; fiscally currently, others to follow.

What is intended by: "structurally supported corruption?"

What is "political virtue;" the virtue of those engaged in political activities? If so, what virtues would those be?

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on May 03, 2014 at 11:57:50 am

What is intended by: “structurally supported corruption?”

Returning to my earlier reference to "occasion of sin" (a non religious metaphor in this case) it refers to those elements within the US Constitution that have over time allowed various political actors to hide or mask the mischief behind a) separation of powers (now further muddied by separation of power within the Executive and its agencies),
b0 a supposed constitutional grant to the Court to be the final arbiter of all law and through which both the Legislature and Executive may hide their responsibility ( Whittington's Judic Supremacy book is helpful here) but most importantly to my mind is the continuing Commerce Clause Jurisprudence which affirms, if not grants, the Legilsature almost unlimited tax and regulatory powers. With this grant of power, the Legislature is in the enviable position of having an unlimited "bag of goodies" to offer" to his "constituents."
As for virtue, it is susceptible to a million definitions - for me I would simply highlight one element and one that the ancients held in rather high regard -Honor. I have not seen political honor in my lifetime.

take care

read full comment
Image of gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.