Filibuster Is Constitutional

Stop whining about the filibuster

By GEORGE F. WILL

Last Updated: 7:26 AM, February 25, 2010

Today's health-policy "summit" comes at a moment when, as happens with metronomic regularity, Washington is reverberating with lamentations about government being "broken."

Such talk occurs only when the left's agenda is stalled. Do you remember mournful editorials and somber seminars about "dysfunctional" government when liberals defeated President George W. Bush's Social Security reforms?

The summit's predictable failure will be a pretext for trying to ram health legislation through the Senate by misusing "reconciliation," which prevents filibusters. If the Senate parliamentarian rules that most of the legislation is ineligible for enactment under reconciliation, the vice president (as Senate president) can overrule the parliamentarian. This hasn't happened since 1975, but liberals say desperate times require desperate measures.

Today's desperation? Democracy's majoritarian ethic is, liberals say, being violated by the filibuster that prevents their enacting health legislation opposed by an American majority.

Some liberals argue: The Constitution empowers each chamber to "determine the rules of its proceedings." It requires five supermajorities (for ratifying treaties, endorsing constitutional amendments, overriding vetoes, expelling members and impeachment convictions). Therefore it doesn't permit requiring a sixth, to end filibusters.

The second reason filibusters are supposedly unconstitutional is that they exacerbate the Senate's flaw as "inherently unrepresentative." That is, the Founders -- who liberals evidently believe were dolts or knaves -- designed it to represent states rather than, as the House does, population.

Liberals fret: 41 senators from the 21 smallest states, with barely 10 percent of the population, could block a bill. But Matthew Franck of Radford University counters that if cloture were blocked by 41 senators from the 21 largest states, the 41 would represent 77.4 percent of the nation's population.

Anyway, senators are never so tidily sorted, so consider today's health impasse: The 59 Democratic senators come from 36 states containing 74.9 percent of the population, while the 41 Republicans come from 27 states -- a majority -- containing 48.7 percent. (Thirteen states have senators from each party.)

In 2005, many Republicans, frustrated by Democrats blocking confirmation votes, wanted to ban filibusters of judicial nominees. They said such filibusters unconstitutionally prevent the president from doing his constitutional duty of staffing the judiciary. But this is not just the president's duty; the Senate has the constitutional role of consenting -- or not -- to nominations.

"Great innovations," said Jefferson, "should not be forced on slender majorities." Hence President Obama recently embraced a supermajority mechanism: The 18-member commission he created to recommend measures to reduce the deficit requires that any recommendation be endorsed by 14 members.

Filibusters are devices for registering intensity rather than mere numbers. Besides, has a filibuster ever prevented eventual enactment of anything significant that an American majority has desired, strongly and protractedly?

Liberals say filibusters confuse and frustrate the public. But most ideas incubated in the political cauldron of grasping factions are deplorable. Therefore, serving the public involves -- mostly involves -- saying "No." The Bill of Rights effectively pronounces the lovely word "no" regarding many possible government undertakings -- establishment of religion, unreasonable searches and seizures, etc.

The fiction that government is "paralyzed" by partisanship is regularly refuted. Presidents Ronald Reagan, Bill Clinton and George W. Bush reached across party lines in 1986, 1996 and 2001 to pass tax reform, welfare reform and No Child Left Behind, respectively. The $700 billion TARP legislation and the $862 billion stimulus were enacted with injudicious speed.

Liberals are deeply disappointed with the public, which fails to fathom the excellence of their agenda. But their real complaint is with the government's structure. And with the nature of the politics this structure presupposes in a continental nation wary of government and replete with rival factions.

Liberals have met their enemy and he is the diminutive "father of the Constitution," of whom it was said that never had there been such a high ratio of mind to mass: James Madison.

NEW YORK POST is a registered trademark of NYP Holdings, Inc.

Too Much Government

The Perils of Progress

By Lisa Fabrizio on 2.24.10 @ 6:06AM

For months we've been bombarded from both sides of the political aisle with the idea that when it comes to healthcare, and nearly anything else in Washington, that our most pressing need is to "get something done." This idea that Congress was created by our founding fathers with a mandate to "get things done" should be offensive both historically and grammatically to all Americans. At the same time, despite the precipitous drop in popularity of the party in power, folks continue to point out that the GOP is "leaderless" and "rudderless."

They point to meaningless signs like the results of the straw poll at CPAC; as if the votes of 2,395 mostly young people -- including an openly gay group for the first time -- were vitally important. Believe me, I've been to CPAC many times and many was the time that friends and I repaired early to the bar, leaving the ballots commingled on the floor with sandwich wrappings.

But far from anointing Ron Paul as their presidential nominee of choice, the most indicative effect of including gays was this result from the poll: while the great majority of respondents named reducing the size of government as the most important goal of conservatism, only nine per cent cited the promotion of "traditional values." Scary stuff when you realize that the former is impossible without the latter for our particular constitutional republic.

A smaller government that is not based on the moral underpinnings of our founders would have been just as repulsive to them as a larger one that is. As John Adams said, "We have no government armed with power capable of contending with human passions unbridled by morality and religion.… Our Constitution is designed only for a moral and religious people. It is wholly inadequate for any other."

So the goal of a true conservative movement should be to conserve -- or in this case to reestablish -- those founding ideals; that a nation of laws and not of men ought to govern loosely at the federal level, with great emphasis on state sovereignty. How sweet to the ears of conservatives should be the words of the Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

And maybe the best consequence of the hopefully short-lived majority reign of Obama and his party is the greater awareness the American people have gained regarding the nature of their government; that it was founded as a confederation of individual states with an intentionally restraining instrument known as the U.S. Constitution. This may not seem like a big deal to those who are familiar with American history, but when was the last time you tried to explain something like the Electoral College to, say, a college student? Blank stares and disbelief are usually the reaction to the news that our president is not elected by the country, but by the individual states.

But the fact that ours is a union of fifty entities with vastly diverse needs and interests was made crystal clear by the deals cooked up by Harry Reid and friends in their attempt to nationalize healthcare and otherwise wreck our economy. Voter anger at cash-for-cloture deals such as the Cornhusker Kickback and the Louisiana Purchase translated into a thorough and stunning victory for Republicans in the liberal bastion of Massachusetts.

Americans started to wake up to the reality that sometimes some states were more equal than others and they didn't like it one little bit. But this is a good thing, as this kind of friction between the states was very much intended by our founding fathers as a way to restrain the forces that would collude with each other in order to establish the ever-growing federal government most of them feared.

And make no mistake about it; government expansion is the goal of liberals, or progressives as they now label themselves. But that is surely what they are, because they see the growth of federal power as progress, whereas conservatives feel exactly the opposite. In his essay, The Rights of Man, Thomas Paine wonderfully summed up this difference when he warned that governments in a continuous quest for progress are the most dangerous:

If, from the more wretched parts of the old world, we look at those which are in an advanced stage of improvement, we still find the greedy hand of government thrusting itself into every corner and crevice of industry, and grasping the spoil of the multitude. Invention is continually exercised, to furnish new pretenses for revenues and taxation. It watches prosperity as its prey and permits none to escape without tribute.

A great day for progressives in Washington is one where they "get things done." But for conservatives, it's when Congressmen are at home doing what they do best: raising money.

Lisa Fabrizio is a columnist who hails from Connecticut (mailbox@lisafab.com).

Purposeful Gridlock

Why Gridlock in Washington Is Good
It is hard to get things done in Congress. It's supposed to be.

By DAVID B. RIVKIN JR. AND LEE A. CASEY

Members of Congress generally give one of two reasons for quitting. Those evacuating the capital because of scandal invariably want to "spend more time" with their families. Those leaving to become a lobbyist or head home to seek election to even higher office complain about "gridlock" and how badly the system is "broken."

Sen. Evan Bayh (D., Ind.), for example, cited the difficulty of achieving "legislative accomplishments" as reason for his decision not to seek re-election this year. Gridlock, however, is part of the Constitution's design and is consonant with our underlying political traditions.

When they gathered in Philadelphia in 1787, the Constitution's framers had three goals: Establish a strong national government that nevertheless respected states' lawful prerogatives; impose limits on the exercise of government power so as to protect the citizenry's life, liberty and property; and create a stable and enduring political system. These men had lived through a revolution and war, and they understood the importance of regulating "by a system cautiously formed and steadily pursued," as noted by John Jay in the Federalist Papers.

The Framers achieved this stability by generally requiring a high level of consensus in support of governmental action. Accordingly, the Constitution deliberately makes achieving "legislative accomplishments" difficult.

As every school child once was taught, all federal laws must be first agreed to by both houses of Congress, which are themselves fundamentally different institutions with different constituencies, powers and interests. In addition, federal legislation must be acceptable to the president, or both houses must vote to override his veto by a two-thirds majority. As a result of these stringent requirements, the vast majority of legislative proposals never become law for the very reason that the necessary consensus is so often elusive.

Changes to the Constitution itself require an even higher consensus. Such amendments must not only command super majorities of two-thirds in both houses of Congress, they must also garner the support of three-fourths of the state legislatures (or of special ratifying conventions). In 220 years there have been only 27 amendments because that level of national agreement is profoundly difficult to obtain.

In addition, the Senate was itself designed to serve as a brake on change. As explained by James Madison, also in the Federalist Papers, the Senate would be a "temperate and respectable body of citizens" able to check the citizenry when "stimulated by some irregular passion."

Taking this role seriously, the Senate did the framers one better by adopting the much abused filibuster rule. Today it requires that 60 senators agree to end debate on any particular measure before a vote can even be taken.

In short, the government established by the U.S. Constitution, as well as the document itself, is "conservative." Its default is the status quo, unless and until the advocates of change can secure a sufficient consensus to support their idea.

In a republic of vast space and an even vaster diversity of interest and opinion, in most instances this means that anyone who wants to get "something done" in Washington will have a tough row to hoe and must be prepared to compromise. Such compromise is the bane of ideologues and idealists alike. But that is how consensus is reached.

When the country is fundamentally divided over an important issue—such as health-care reform—the necessary consensus may not be achieved. Moreover, disputes about one issue may well pour over into another, making compromise and consensus even more difficult. But that is simply human nature.

All of this may well mean that change, even necessary change, is postponed or permanently thwarted. But that is the price of the remarkable stability of government we have.

Despite the perpetual griping about Washington's political gridlock, the American people appear instinctively to understand and accept the Constitution's consensus-based architecture and support the very sort of compromises the system is designed to secure.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.



Copyright 2009 Dow Jones & Company, Inc

We Have passed the Tipping Point

America's candor gap on the budget
By Robert J. Samuelson
Monday, February 8, 2010

In all the recent reports, speeches and news conferences concerning the federal budget outlook -- including the administration's proposed budget for 2011 -- hardly anyone has posed these crucial questions: What should the federal government do and why; and who should pay? We ought to go back to first principles of defining a desirable role for government and abandon the expedient of assuming that anyone receiving a federal benefit is morally entitled to it simply because it's been received before.

We have a massive candor gap, led by President Obama but also implicating most leaders of both parties. The annual budget necessarily involves a bewildering blizzard of numbers. But just a few figures capture the essence of our predicament.

First, from 2011 to 2020, the administration projects total federal spending of $45.8 trillion against taxes and receipts of $37.3 trillion. The $8.5 trillion deficit is almost a fifth of spending. In 2020, the gap is $1 trillion, again approaching a fifth: Spending is $5.7 trillion, taxes $4.7 trillion. All amounts assume a full economic recovery; all projections may be optimistic. The message: There's a huge mismatch between Americans' desire for low taxes and high government services.

Second, almost $20 trillion of the $45.8 trillion of spending involves three programs -- Social Security, Medicare (health insurance for those 65 and over) and Medicaid (health insurance for the poor -- two-thirds goes to the elderly and disabled). The message: The budget is mainly a vehicle for transferring income to retirees from workers, who pay most taxes. As more baby boomers retire in the 2020s, deficits would grow.

Third, there is no way to close the massive deficits without big cuts in existing government programs or stupendous tax increases. Suppose we decided to cover all future deficits by raising taxes. Taxes would rise in the 2020s by roughly 50 percent from the average 1970-2009 tax burden.

That's the guts of it. At age 65, average Americans live for another 18 years. Government now subsidizes each of them an average of about $25,000 a year (almost $14,000 Social Security, $11,000 Medicare). We cannot sensibly afford all these subsidies without oppressive tax increases (see above), deep cuts in defense and other programs or immense budget deficits that someday might trigger another financial crisis. Bond buyers might balk at swallowing so much government debt. By the administration's estimates, that publicly held debt (the accumulation of all annual deficits) balloons from $5.8 trillion in 2008 to $18.6 trillion in 2020.

Eligibility ages for Social Security and Medicare should be gradually raised to 70, coupled with a requirement for people to buy into Medicare at 65. Wealthier retirees should receive lower Social Security benefits and pay more for Medicare. Programs that have outlived their usefulness need to be abolished: farm subsidies, for instance. Even with these cuts, future taxes would need to rise. Unless you're confronting these issues -- and Obama isn't -- you're evading the central budget problems.

True, this is a confusing time to engage. Trying to cut the deficit immediately could undermine the economic recovery; what's needed are credible steps to curb future deficits. It's also true that Republican presidents and congressional leaders (some exceptions: Rep. Paul Ryan and Sen. Judd Gregg) have ducked the hard questions. Finally, Obama has endorsed a bipartisan commission to propose budget changes. But the commission's powers are unclear, and the administration's goal is modest. It's not to balance the budget; the aim is merely a smaller deficit -- one limited to the annual interest payments on the debt. By the administration's estimates, that implies a deficit of $571 billion in 2015 instead of $752 billion. No big deal.

We can no longer just tinker. We need to ask whether government spending serves genuine public purposes or merely benefits favored constituencies. Delay in acting has already eliminated a long grace period to prepare for reduced retirement benefits or to wind down useless programs. Now, we are condemned to be unfair. If we don't cut spending, the young may complain (correctly) that they're burdened with crushing tax increases; if we do cut spending, beneficiaries may complain (correctly) that they didn't receive ample warning.

The politics of procrastination is bipartisan and rests on shared assumptions: that the public won't stomach hard choices; that we don't know whether large budget deficits will produce a crisis or when; and that, therefore, the easiest political course is to dawdle and blame the other party. But this self-serving inattention, coupled with much larger deficits, is tempting fate. If investors lose confidence in Treasury bonds, they would demand much higher interest rates. The ensuing crisis would almost certainly compel abrupt spending cuts and tax increases that would make today's choices look gentle.

Healthcare Solution: Free Markets not Government Regulation

Why Washington Can't Reform Healthcare
By Bill Frezza February 15, 2010

It's not for lack of will. It's not for lack of power. It's not even for lack of money. Washington can never effectively "reform" healthcare for one simple reason. The healthcare industry runs on fake prices.

On any given day each of us makes a diverse array of price decisions. On rare occasions, like buying a car or a house, we haggle. Most often we simply decide to buy this or maybe that or instead save for a rainy day.

We make these choices based on knowledge unique to our own situation. Should I replace that moth eaten sweater my girlfriend hates? If I splurge on steak tonight does that mean Ramen noodles tomorrow? You cannot answer questions like this for somebody else.

Every purchase decision is a vote. Add them up and hundreds of millions of votes are cast every day. Each is based on a balancing of desires, means, and personal knowledge possessed by no one but each buyer.

Our votes not only tell sellers what to make but when to ship how many where, what color they should be, and how much to charge. Sellers that get it right win our votes and thrive. Sellers that don't disappear. Every day is Election Day. There's no need to wait four years to throw bums out.

Business works the same way, only with more haggling. Prices and the information they communicate are the nervous system of any market. Complex supply chains sprout, evolve, and die as every player in the chain responds to the price signals he can see. These signals tell businesses how much to pay for inputs, what to charge for outputs, when to take risks, where to best innovate, and when it's time to take a hike. If any link in a supply chain consistently loses money the chain breaks and a new one forms. Or not, in the case of buggy whips.

When it comes to running an economy, votes in Congress mean nothing compared to the votes of consumers and producers. Replace the votes of hundreds of millions of buyers and sellers with the votes of a few hundred Congressmen and what do you get? You get our healthcare system - a market whose nervous system has been paralyzed.

Imagine the world's smartest food expert with access to the best culinary research trying to decide what the right price is for a ham sandwich. Once the price is set, that's it - selling a ham sandwich for more or less is against the law. Oh, and homeless people get free ham sandwiches. Refuse to serve them and you lose your deli license.

Laughable, isn't it? Just imagine the mess freezing prices would create up and down the supply chain that makes it possible for us to walk into a deli and order lunch.

Regulations would have to specify what qualifies as a proper ham sandwich. Inspectors, accountants and lawyers would have to be roped into service to monitor compliance. Activists would picket if paying customers got fresh sandwiches and the homeless got stale leftovers. Ham sandwiches would mysteriously disappear from menus whenever pork belly prices spike.

Are you still laughing? So why don't you laugh when some expert claims he can set the right price for a colonoscopy?

Healthcare prices are fake, inflexible, and inflated because they are set not by the repeated interactions of buyers and sellers but by opaque acts of collusion between government bureaucrats and special interests. Even if this system were run by a benevolent genius who happened to set prices exactly "right" - whatever that means - these prices would be obsolete the moment they were published.

This state of affairs has turned the healthcare industry into a staggering zombie. It took several decades for Medicare price setting to swamp the price signals required to keep the market in balance, but we have clearly passed the tipping point. Lacking these signals and the constant corrections they engender, 16% of our economy is flying blind.

Add insurance to the equation, particularly insurance that the public has been encouraged to think of as free stuff paid for by someone else, and the problem only gets worse.

Can't we fix these problems by fixing insurance regulations? Contrary to popular belief, insurance companies love regulation. Regulation eliminates both business risk and pesky competitors. "Reforming" the insurance industry is not going to eliminate pricing dysfunctions, although it may eliminate insurance companies.

Who cares, you say? Wouldn't we be better off using all those insurance industry profits to pay for healthcare? One small problem. If you took all the profits that all the health insurance companies made in 2009 and used them to pay for medical care in 2010 you would cover the country's medical bills for ... two days. Then what?

Even if there were complete bipartisan comity, it is not possible for Congress to "reform" a system whose fundamental price signaling mechanisms are thoroughly broken. Howling politicians can only run up the tab as they lurch from one crisis to the next.

Bill Frezza is a partner at Adams Capital Management, an early-stage venture capital firm

Constitutionalism-Your Cup of Tea

Populist Constitutionalism & the Tea Parties

By Larrey Anderson

The tea parties are a unique populist movement and moment in American history. There is no charismatic leader of the movement. The tea parties have more grass roots movers, shakers, and members, than any populist movement ever seen in our country. So what makes it so different from previous populist political factions?

"Populism" is a vague political concept. There have been populist (and wannabe populist) political movements, on the left, on the right, and even in the middle (wherever that is), in the history of American politics. None of the movements were particularly successful -- and many of them were outright scams.

On the left, think of Democratic Senator John Edwards's attempt to define himself as a "populist" with his "two Americas" speeches. A multi-millionaire trial lawyer tried to get himself elected President of the United States on the hypocritical distinction between "us and them" ... the rich and the poor. Edwards, of course, portrayed himself as the populist champion of the poor.

Ponder (what the media called a "right-wing populist" -- rather than a Democrat racist) George Wallace and his famous quote, "I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say, segregation now, segregation tomorrow, segregation forever." Wallace was the Democratic Governor of Alabama when he made that statement in 1962. He won his election with the largest popular vote in the history of the state. Wallace went on to form the so-called "populist" American Independent Party in the late 1960s.

And don't forget the über-populist Ross Perot and Reform Party USA. Perot and his political party stand for ... for... for.... Political pundits are still trying to figure it out.

Not all populist (or faux populist) movements have been headed by a charismatic leader. The prohibitionist movement sought to outlaw the production, sale, and transportation of "intoxicating liquor." A populist crusade swept America and, as a result, the 18th Amendment to the Constitution was ratified in 1919. Prohibition had no singular public personality as its lead proponent. "The Noble Experiment," as prohibition was called at the time, was a sui generis populist cause intended to establish a single moral effect.

By 1933 the impulse and attitude of the American people on the issue of alcohol consumption had swung in the opposite direction and ... poof! Beer was back. The 21st Amendment repealed the 18th.[i] Again, there was no one national figure to lead the repeal of the 18th Amendment. Americans had decided that they missed easy access to their adult beverages -- so the American people made a populist U-turn. Americans had grown weary of the shenanigans of the black market hoodlums who supplied their illegal booze and most Americans abhorred the massive government intrusions into everyday life that came with prohibition.[ii]

So what makes the tea parties different? I have attended several local tea party gatherings (and addressed a couple of them). There is one document that is ubiquitous at these events: the Constitution for the United States of America.[iii] People hand out copies of the Constitution like hors d'oeuvres that are served at ... a de rigueur tea party.

At one tea party, I helped a women lug a couple of cardboard boxes filled with pocket-sized copies of the Constitution into the hotel conference room. We sat the boxes on a folding table next to the dais for the speakers. "I only bought a thousand copies. You think that will be enough?" she asked me.

I smiled. "Enough for today..." I started to reply.

"Excuse me," a man interrupted us. He carried another box full of copies of the Constitution and set his box on the table next to her two boxes. He opened his box and began handing out the Constitution to the people who were filing into the meeting room. "Plenty," I told the woman and we laughed.

"Populist Constitutionalism" - that's what the tea parties are all about. Love and respect for the Constitution is driving the movement. Sharing the document, and then discussing the meaning, purpose, and the ideas of the Constitution, that is the process that is taking place as a result of this love and respect.

This discussion is what America needs right now. The Constitution (and a real federal government) is the set of principles that can unite all Americans (with the possible exception of the most radical of those on the left who want to see some kind of socialist central state.)

Social conservatives, fiscal conservatives (that might be liberal on some social issues), libertarians, and moderates can agree to disagree about issues like abortion, legalized drugs, gay marriage, etc. The Constitution teaches all of them that the resolution to these problems should be conducted on the state or community level, as opposed to the national, level.

These divergent groups agree that the federal government has, over the last several decades, stepped further and further outside of the bounds of the Constitution. Issues, including health care, cap and trade, and excessive regulation of businesses are outside of the specific powers granted to the federal government. More and more Americans are aware of this fact. And more and more Americans are sharing the promises and the premises of the Constitution with their friends and neighbors through tea parties being held across America. This is what I mean when I say that the tea parties are "populist constitutionalism."

The tea party movement is not a one-issue (one-hit) wonder -- like prohibition. Nor is it a bunch of political zombies mesmerized by some charismatic leader like an Edwards, a Wallace, or a Perot.

The tea parties do not need a charismatic leader. It is, essentially, an ongoing educational process -- that will be heard (one way or another) by tone deaf and constitutionally ignorant politicians. The tea parties teach a multitude of Americans what they are no longer (or "rarely," I suppose I should write) taught in our public schools and universities: America was, from the beginning, intended to be a grand experiment in freedom and local and state control.

Take Nevada and Utah as instances. The states border each other. Yet one state endorses legalized gambling, prostitution, and easy access to liquor. Right next door, teetotaling Utah frowns on all of these "immoral" practices.

That's the way the Founding Fathers wanted America to be. They knew that different people had different needs and values. They realized that they should be free to express those values legislatively on the state and community levels. If an American finds Nevada's laws too promiscuous (or Utah's laws too restrictive), the citizen can either work to change the laws of the particular state ... or the citizen can move across state lines.

There are, and will continue to be, arguments and dissention within the movement. (The media is already noting this and eating it up.) But Americans are famous for contention and debate. No populist movement (unless it is focused on a single issue like prohibition) will be in agreement on every issue. Disputation and disagreement is a sign of health and enthusiasm -- not a portent of dissolution.

Populist constitutionalism is the surest and clearest path to saving our republic. Thank God (and I mean that literally) for that dedicated woman who asked me if she had brought enough copies of the Constitution to the tea party gathering. I will close by answering her -- as I should have when we were standing at that table: "As far as the Constitution goes, you can never have enough copies ... and we should never stop learning as much as we can about the greatest political document ever written."

-----------------------------------------------------------------------------------

[i] Notice that, even though the process was long and convoluted, the American people did the right thing (legally, juridically, and constitutionally speaking) by passing constitutional amendmentsto address, and then readdress, the issue of prohibition.

[ii] As an aside, those Americans who are intent on the central government running our health care should read the sordid history of how the federal government handled the prohibition of alcohol -- with the full authority of the Constitution to back the government's actions.

[iii] Interestingly, the original hand-written Constitution has no title. The first words, in those famous huge flowing letters, are "We the People...." The title, Constitution for [in some versions "of" was substituted for "for"] the United States of America was added when the hand written Constitution was first printed and distributed to the public.

Larrey Anderson is a writer and philosopher. He is the author of The Order of the Beloved, and the memoir Underground: Life and Survival in the Russian Black Market.

Back to Individual Responsibilty

Washington vs. 'Common Sense'

We don't need more laws and bureaucracy to tell us how to do better. By PHILIP K. HOWARD

'Let's try common sense," President Obama said in the State of the Union address, provoking a spontaneous burst of laughter in the House of Representatives chamber. The unintended humor exposes an important truth about Washington: Everyone knows that won't happen.

More troubling, however, was that the president's speech revealed why common sense is nonexistent. Mr. Obama wants new laws to tell us how to do things better—when the need is to overhaul old laws to restore freedom of choice and individual responsibility. Up and down the chain of authority, the accumulation of law and entitlements precludes sensible decisions.

Mr. Obama seems to see law as social engineering, not as a framework to guide the choices of real people. In his speech, he advanced a series of reforms doomed to fail because humans don't have freedom to use their common sense:

• Schools: "The idea is simple," Mr. Obama said. "Instead of rewarding failure we will only reward success." His main idea is to add a bureaucratic carrot, the billions in the "Race to the Top" program, to the bureaucratic stick of the "No Child Left Behind" law.

But teachers aren't trying to fail. They're frustrated all day long by the types of bureaucratic programs and incentives that Mr. Obama wants to pile even higher on them.

The solution is not to tweak the bureaucracy, but to abandon it. Charter schools succeed because the people in them are free to use their common sense all day long—to maintain order and to instill values of cooperation and respect needed for life as well as academic success. Public schools need the same freedom and accountability. Some will succeed, some will not. Today, failure is guaranteed by bureaucracy.

• Infrastructure: "[W]e can put Americans to work today building the infrastructure of tomorrow," the president claimed. "From the first railroads to the Interstate Highway System, our nation has always been built to compete. There's no reason Europe or China should have the fastest trains . . ."

But America can't build new infrastructure because no one has the authority to say "go." Nearly endless environmental review, followed by years of litigation by anyone who doesn't want the project, will make it impossible to put a shovel in the ground for a new project for years.

Too much law always causes paralysis. Environmentalists wanted legal power to stop bad projects, and now find themselves unable to build good projects. Real people must have responsibility to make these decisions—that's what government is for. Cut the environmental review process to a year or two at most.

• Lobbyists: According to the president, the culprits for governmental sclerosis are easily identified. "We face a deficit of trust—deep and corrosive doubts about how Washington works that have been growing for years. To close that credibility gap we have to . . . end the outsized influence of lobbyists. . . . That's what I came to Washington to do."

Washington is distrusted not because of lobbyists—they're just a symptom of the vacuum of authority. Who among our political leaders stood up and explained how to recapture the $1 trillion of annual waste in health care—a huge sum that could be devoted to countless other public goods? No one, because political leaders can't even imagine questioning entitlement programs such as Medicare, which contain no incentives for prudent spending by patients and providers.

Mr. Obama is still stumping for a health-care bill that was substantially written by lobbyists. That's why the legislation is so convoluted. It's an agglomeration of special-interest deals far removed from what's needed to bring health-care costs under control. Lobbyists didn't kill the health-care bill. According to Katharine Seelye of the New York Times, they spent about half a billion dollars promoting it. The American people killed the bill.

Americans know what's wrong: Government has taken on a life of its own, dragging our country down to some horrible pit of quicksand where, increasingly, no one can make sensible choices.

Washington is broken. So are most state governments. The reason is the same. Government is out of control, schools are out of control, health-care costs are out of control, lawsuits are out of control—because law has supplanted the responsibility of people needed to keep them in control.

Fixing modern government, Peter Drucker once observed, requires returning to first principles. What's missing in government is the activating principle of all human accomplishment—individual responsibility. America must shift the goal of reform from desired results—universal health care, effective schools—to a new philosophy that allows people to get things done.

Mr. Howard, a lawyer, is author of "Life Without Lawyers" (Norton, 2010) and chairman of Common Good (www.commongood.org). Copyright 2009 Dow Jones & Company, Inc.