It’s All Out of Balance

The decline and fall of the Senate

It’s official. The federal government is broken. The lefties did it, but conservatives have been at best passive observers and at worst willing participants.

Watching the Samuel Alito hearings on television, bathed by the background glow of the Jack Abramoff scandal, it becomes apparent that we have reached a point of crisis. The brilliant system built on the concept of separation of powers has finally reached the tipping point.

As is usually the case, it is rather easy to look backwards and follow the gestation of our predicament. In my mind, there are two primary sources of corruption in democratic republics. The first is the desire to use government power to enhance one’s wealth or status. The second is to use the power of government to pursue “justice.”

We all recognize good old fashioned financial corruption of the sort Abramoff has mastered. It probably sounds significantly more odd to the modern ear to view the pursuit of justice as a corruption. But I find this to be the more dangerous of the two.

Justice is a profoundly slippery concept. It is most properly the territory of philosophers and theologians, not bureaucrats and policemen. For as soon as I am tempted to achieve justice, to treat it as a political end, it must immediately degenerate into a competition of visions, in which we end up muscling citizen A to ensure that citizen B gets our version of justice. Most of the murder count of the 20th Century was a result of competing visions of justice.

The Founders of our nation understood this danger. You may have noticed that while the Declaration of Independence is specifically concerned with questions of justice (it is, after all, a “vision statement”) the Constitution is remarkably justice-free. This is not an accident. The Constitution is a blueprint for the “machinery of government.” The Founders recognized that the key to a stable democracy was a sound, well-balanced limited government. Even the Bill of Rights ought not to be construed as primarily about what is “just.” The Constitution does not protect freedom of speech because it is “just” to do so. It protects it for the very practical reason that a democracy cannot survive when political speech is controlled by government. The 4th Amendment exists not because justice demands it, but because republican democracy cannot long survive the strain of hardwired arbitrary discrimination.

The brilliance of the Founders was to understand that their vision of justice would be far better served in the long run by designing neutral governmental machinery and processes that allowed the citizens to steer their destiny than it would be by attempting to institutionalize virtue into the machinery. If you think about it, machines cannot be just or unjust. They just are. Our Constitution was designed to just be.

One of the keys to maintaining this sort of well-balanced governmental machinery was the idea of separation of powers. By establishing three co-equal and functionally distinct centers of power, the Founders knew that basic human dynamics would prevent one person or group of people from running roughshod over the rights and liberties of the nation.

What they did not foresee is that one of the branches of government would end up abdicating its responsibilities by voluntarily ceding its power and sovereignty to another branch. In order to pursue “justice” and buy more time to bask in its own arrogance.

Starting with the New Deal, but really picking up steam in the 50s and 60s, American liberal/socialist elites became dissatisfied with the rate of change in American society. They saw perceived injustice and could not stand the notion that it could be allowed to remain. While many Americans of all political stripes, for example, found school segregation to be unjust, it took a certain kind of politics to conclude that a declaration of its injustice should be hard-wired into our constitutional framework. But that is what the Court did in Brown v. Board of Education. It worked so well that pretty soon all sorts of issues of “justice” were being floated to the Court, and the Court obligingly began to embed socialist/humanist versions of justice into the very machinery of government.

Pretty soon the legislative branch realized that this new sort of Supreme Court made their job less stressful. When faced with difficult or controversial issues, they could just pass some pottage of suitably vague legislation and let the Court sort it out. This allowed them to focus on the truly important items such as paying for bridges to nowhere. This dynamic especially affected the Senate, who were tasked by the Constitution with being the “adult” branch of the legislature. Relieved of this obligation by an infallible Court, it has degenerated into mass of arrogant blowhards with no seriousness and remarkably little remaining power. Do not let the harsh rhetoric fool you. These are a bunch of toothless old lions primarily concerned with buying reelection.

The degree to which this is all broken struck me while watching the Alito hearings. Virtually all of the opposition to Judge Alito was based on the fear that he might actually do something to impede the ability of the Court to implement the elite vision of justice. A Senate whose largest concern is how a prospective Justice views abortion is a Senate that is profoundly unserious, that is begging not to take any real responsibility.

This is where we find ourselves: a government out of balance and getting worse. A Senate full of gasbags so hideous that Arlen Specter looks good by comparison. A House that strives daily to prove P. J. O’Rourke’s dictum that “Giving money and power to government is liking giving whisky and car keys to teenage boys.” An Executive branch that stumbles along trying to do the right thing and mostly ignoring everyone else. And a Court that has inherited the keys to the kingdom. It is no longer a dispassionate arbiter of the law. It is the Keeper of Cosmic Justice!

It is not as easy to understand what can be done to make this different. This notion that it is the job of government to achieve justice has become pretty well embedded in our culture, and is reinforced daily by the cultural elites. Appointing an Alito won’t change that. It will take a generation of Alitos, and Scalias, and Thomases. The venal corruption that government power brings will not stop until the power of government is reduced. It will take term limits for Senators (1 term, I think) and Constitution-level tax and spending reform.

In the end, as with anything, government is worse at dispensing justice than is the private sector. The harder government tries to achieve justice the less just our society will become. I fear that nothing will change until the elites drink deeply of that message.

Archives of "The View from the Ground"

Send an e mail to Patrick J. Shanahan

Visit his website at: