Liberty, Prudence, Imperfection, and Law

“Evaluating the Current Union of the States: Character and a Consolidated Union,” By Bruce P. Frohen


Editorial Foreword: This essay by Bruce P. Frohnen is the first installment of a new Nomocracy in Politics symposium, “Evaluating the Current Union of States.” The symposium will examine the various costs and benefits that Americans and others incur as a result of our current Union of States–a.k.a., the United States of America. The symposium will progress gradually over a period of weeks.

Essay: A symposium devoted to “evaluating the current union of the states” may sound designed to institute reconsideration of the issues and grievances precipitating and resulting from the Civil War.  Perhaps in part because I was born and raised (mostly) in the West, I have no emotional investment in such a debate.  Moreover, it seems to me that there is plenty of fault on both sides in relation to that war, and that the airing of grievances in terms of a conflict 150 years gone, while certainly of continuing intellectual interest, can be of little practical use in considering where we currently stand, and where we should go as Americans.  That said, I find it highly interesting and of significant importance for Americans to re-think the value of their union.  This is no less the case because most Americans today no longer think of themselves as citizens of a state within that union, but rather as citizens of a nation containing fifty (or more) administrative sub-units.  Indeed, perhaps the central question we face as a people is how consolidation of our federal republic into a national government of general, in principle limitless power and authority affects our ability to lead good, decent lives.

Issues raised by America’s consolidation into a vast, powerful nation range from the most concrete to the most seemingly abstract.  At the most concrete level is a question that has preoccupied students of politics for several generations, namely that concerning power.  Have we benefitted as individuals and as a society from the power of our mighty nation?  To break down this question somewhat, are we safer as part of a world-spanning empire?  Are we more virtuous?  Is ordered liberty more secure?

There is a related set of questions also of great interest to students of politics.  These concern the consolidation of domestic power in the hands of the national government.  Stated in summary terms, given the loss of any truly independent status for states and localities, is a nation of the size and population of the United States better able to provide for the material, cultural, and spiritual needs of its people, or has the very scale of our country encouraged consolidation of our political, economic, and cultural life in a way that harms our ability to lead fruitful, virtuous lives?

Finally, and most importantly, it seems to me, is the more general, cultural question concerning the costs and benefits of cosmopolitanism itself.  Are we better off living as cosmo-Americans, frequently moving from one state and region to another in pursuit of money and career advancement, or merely a more conducive climate?  I myself have lived in 13 different states across the country—twice in several states, and in several cities in more than one.  Is my life better, and am I a better person, because of this?

Beginning, then, with the question of power.  It often has been said that America would have ceased to exist, even suffering re-conquest form Europe, had it not avoided the splintering of interests fomented under the Articles of Confederation, or threatened by Southern Secession, or promoted by claims of states’ rights during various eras of conflict in the United States.  These may be fair points for a debate over our original constitutional design and even the wisdom of northern opposition to secession.  But do they answer questions concerning the current state of our nation?  I think not, for what we live in today is not a compound, federal republic presenting a relatively unified front to outside forces.  Rather, to judge by the policies of recent decades, ours is a nation that seeks military supremacy on the international stage.  Obviously, the exigencies of the Cold War influenced these developments (though some, such as Senator Robert Taft, pointed to less extreme possibilities in carrying out that conflict as well).  But our current position, with troops in literally dozens of foreign countries, “nation building” in opposition to much of the native population, hardly was forced upon us.  Rather, this position is one of choice, of the determination to make the world over in our own image.  Is it good to “share” one’s way of life at the point of a gun?  Have we purchased safety with the lives of our brave soldiers?  One need not condone the barbarism of the 9/11 attackers and other terrorists to arrive at the considered judgment that overextension of our forces has not made us safer as a people.  The expense of our empire in terms of money, manpower, and increasing concentration of power in the hands of Presidents who riffle through our electronic files at will seems hardly worth the increase in pride and influence that takes us away from our more fundamental duties to faith and family.

A chief means by which the national government achieved the power it currently exercises in foreign and military affairs was consolidation of the armed forces themselves.  Until well into the 20th Century, troops were raised from localities and states.  That is, a set of troops would not simply be “the 25th infantry,” but rather “the 25th Pennsylvania” and so on.  In the interests of military efficiency in time of World War, this practice of recruiting and managing the military as an extension of the state militia was eradicated.

As Robert Nisbet most famously pointed out, war leads to the consolidation of power, not just in the military, but in the central government more generally.  We have had many wars in the United States, particularly during the 20th Century, going well beyond the needs of foreign policy.  From the War on Poverty to the War on Drugs, to the series of administrative wars intending to stamp out various forms of discrimination, the national government has solidified its control over political, economic, and social life throughout the United States.

Again, proponents of consolidation have claimed that the alternative would be chaos—or worse.  The very real depredations of racial hatred (to which our Southern friends hardly own the rights, given the plethora of discriminatory laws deeply embedded in most other states and regions) have been used, along with the siren’s call of “efficiency,” as a kind of general apology for all forms of nationalization.  From a federal power to regulate, not just commerce, but all forms of manufacturing, agriculture, and even subsistence farming, to the final institutionalization of social democracy in the form of Obamacare, national policies have been implemented with only the barest recognition that the states exist as anything more than administrative units of the central government.

Has this consolidation of power improved our lives and our characters?  The total breakdown of the rule of law under this and the previous administration, in which wholesale waivers from national programs are used to prop up nonsensical education and healthcare policies that are so unwieldy that no amount of administrative fiat can make them work hardly seems an improvement.  Many, of course, welcome these new structures, confident that, in time, administrative agencies will gain sufficient power, money, and staff to regularize their control.  Yet it hardly seems clear that a people is better off as wards of a seamless, cradle-to-grave nanny state than as free citizens.  Moreover, if that nanny state is to attempt to care for 350 million people in a land as vast as ours, the costs, as we already are seeing, will be so high as to break the back of the economy and even of leviathan itself.

But, we are told, America as a nation is a kinder, gentler, more humane and just society.  We should, on this view, welcome consolidation as the price one pays for virtue.  The counter, or rather scare example provided is that of racist small towns in which lynching is a part of daily life.  More generally, the argument is that people are better, as people, if they are cosmopolitan “citizens of the world,” rather than citizens of localities and face-to-face communities where, presumably, they define anyone they do not know as less than human.

Putting calumny to one side, for the moment, let us consider the value of the cosmopolitan “lifestyle.”  What does the lack of persistent, personal ties add to the human character that is good?  The near-universal answer is openness to diversity, in a word, tolerance—the polar opposite of prejudice.  If by “prejudice” we mean racial animus, and by “tolerance” we mean the lack of racial animus, we have a clear, morally significant distinction.  But hatred, whether based on race, class, religion, or political affiliation, is no moral virtue.  To take the obviously most relevant example, such hatred is specifically, repeatedly condemned in Christian teaching.  And “prejudice,” as Edmund Burke pointed out, means simply unexamined beliefs, including, for most people most of the time, beliefs undergirding moral structures.  Tolerance, on the other hand, while recognizing the moral importance of all persons (something recognized by Christianity and, indeed, almost all moral and religious systems) rests on an impulse far different from, and inferior to, that undergirding the local life it condemns.  Where localism fosters communal standards of care and stewardship, cosmopolitanism is a creed of self-indulgence rooted in the mistaken notion that ignoring other people constitutes virtue.

Tolerance certainly has its virtue—it does not require that we embrace conduct our religious beliefs tell us are offensive.  But this makes it a distinctly limited good, allowing us to go about our own business in ignorance of the moral state of others—the classic lifestyle of the upper-middle-class urban professional seeking pleasures-of-the-moment when not earning the money to pay for them.  Tolerance does not, of course, provide the ethical, emotional, and practical (habitual) grounds for a life lived in communion with others—for suffering with the poor rather than paying taxes to give them government assistance, for example.  It is a creed of self-involvement.  Moreover, as an empty creed, providing no basis for commonality, it serves only as the grounds for abstract “caring” in the form of ideological programs (e.g. the “war on global warming” in which we currently are engaged).  And these programs only further feed into the ever-growing centralized state.

In the end, as we already are seeing, toleration gives way to a determination to stamp out “discrimination,” now defined as any opinion or way of life eschewing cosmopolitanism.  What we have, then, is contempt for real communities in which people share habits of the heart by sharing circumstances and ways of life.  And this contempt has very real consequences in a nation dominated by a government with the power to legislate on everything, provided it makes a formulaic bow to interstate commerce and the rights of individuals to behave in a manner offensive to the local community.

Thus, on every level—moral, economic, and political—our current union of states is an absolute failure.  It harms our character and way of life.  A union of states was a good idea.  Sadly, it has long since been abandoned.  None who value genuine, organic communities can be sanguine about a future under our current, consolidated regime.  Nor can any who value ordered liberty be sanguine, given the drive to use a supposedly neutral state to eliminate “wrong” individual choices, along with the diverse ways of life communities naturally develop for themselves.

Our current situation is untenable over the long haul.  It would seem that it would resolve itself in one of two ways:  either we all will become “cosmo-Americans,” abandoning the dead shells of our communities in favor of life as free-floating wards of the state, or the national government will finish running itself into bankruptcy, spurring a mass inflation or a simple crumbling of national institutions and programs, before the process of nationalism is completed.  Neither prospect is a happy one.  Nonetheless, it is important that those who value ordered liberty as well as community make a clear assessment of our current union and its likely future so that we may lower our expectations accordingly and better defend such pockets of community and independence as can be salvaged.

Bruce P. Frohnen is currently Charles Evans Hughes Professor of Jurisprudence at Colgate University. Professor Frohnen is also on the faculty at The Ohio Northern University Pettit College of Law, and he is a Nomocracy in Politics Contributor.  

23 Responses to ““Evaluating the Current Union of the States: Character and a Consolidated Union,” By Bruce P. Frohen”

  1. gabe

    Prof. Frohnen:

    Nice essay – rather enjoyed it.

    Linked below is another fine take on this “de-linking” of the citizenry:

    http://www.libertylawsite.org/2014/01/21/reading-tocqueville-in-qatar-and-georgetown-too/

    My only quibble might be with the strength of your argument against tolerance. Yes, there is a sense of a certain “in absentia” about tolerance – that is, we are present but not active in the community – however, I suppose I would prefer “tolerance” to government or leftist ideologically induced conformity which you properly rail against.

    What would be interesting to hear is this: what should be the extent of ‘conformal” behavior amongst citizens of a this republic?
    What, then, IS owed to the general government / general american (small “a” intended) community (while still remaining members of a locality)?

    I think that were one to clearly articulate these limits, then perhaps one could be far more persuasive in winning over the “de-linked” individuals in our society. There are, as you say, numerous objections to “localism” – most of which may not withstand scrutiny – nevertheless, they are prevalent among us and ought to be countered not just negatively but positively by articulating what in fact is, and should be, “common.”

    take care
    gabe

    Reply
  2. bobcheeks

    I’m not so sure that there isn’t some line, some point where republics, because of size, are no longer viable! It could be that one shouldn’t allow people inclined toward consolidation (Democrats and RINO/Neocon Republicans)? Or Is it true that our collapse has more to do with the loss of virtue?

    Reply
  3. bobcheeks

    ” If it is remarkable when a nation has become indifferent to its constitutional theory, to its national sentiments, its ethical customs and virtues, it is certainly no less remarkable when a nation loses its metaphysics, when the spirit which contemplates its own pure essence is no longer a present reality in the life of the nation.”

    The quote, above, by Georg Hegel is telling, I think. It seems the loss of the knowledge of our ‘constitutional theory’ and the loss of our ‘spirit’ go hand in hand. Do we, as a people, have the vitality, the spiritual strength to recapture or restore the old theory? Or, have we become listless slaves?

    Reply
  4. gabe

    It seems the only “virtu” that is apprehended by current americans is the VIRTU in “virtu-al” reality games – which pretty much describes their approach to constitutional theory.

    But the “slaves” are victorious in all of the online games that they play so I suppose that provides a vicarious sense of virtue to them.

    How bloody depressing!!!!

    Reply
  5. djf

    I agree with most of this essay, with the exception of the reference to foreign policy. First, we are already pretty much out of the “nation building” business; even our long stay in Afghanistan is about to end. Prof Frohnen’s emphasis on that is beating a dead horse. Second, 9/11 did not come in response to any “nation building” on our part. We were involved in the Middle East, of course, but that simply reflected our interests there (as in the case of the first Gulf War and its aftermath), and was not any great departure from the way great powers have always acted. Finally, the US going out of business as a superpower – which we seem to be doing under the current administration, and seems likely to continue no matter how future elections turn out – is not going to do a thing to reverse the domestic trends Prof. Frohnen complains about, for the most part rightly.

    I would add that viewing the return of power to the states or localities, even if politically possible at this late date (and I very much doubt that it is), would not do a thing, at this late date, to reverse the harm to the character of individual citizens and communities lamented in this essay. No special residual virtue resides in the states or local communities to be reawakened by cutting back on federal power.

    Reply
    • John E. Jenkins

      I don’t believe I’ve addressed you in the past, djf. I like the fact that you are an interested commentator here. We all need as much input we can get regarding what Professor Frohnen essay lists to the readers.
      I don’t agree w/your analysis of Frohnen. I believe he has been remarkably accurate in what he has evaluated in regards to cosmopolitanism and the republics of the States and this nation. If you believe we are no longer on a the road to ‘nation building’ — stand by, I am sure there is more to come. Cosmopolitanism is a global venture by the progressive think tank in Washington and certain Internationals. I have watched it grow and grow over my (many) years. When we can find a Republican candidate that has the attributes of Jeffersonianism, and followers, we can redeem the peoples States rights and our Republics.
      Respectfully, John

      Reply
      • djf

        Hello John Jenkins,’

        My disagreement with Prof Frohnen – whose writings I always look forward to – was really limited to characterizing the problem as one of overextended federal power. My reply to gabe below sets out some of the reasons why.

        Are we really involved in nation building now, aside from our involvement in Afghanistan, which we are winding up? I can’t really think of any, except maybe our obsession with creating a state for the Palestinians.

        Respectfully, djf

  6. bobcheeks

    Well said, DJF, now can our lost virtue be recovered, or does the collapse continue regardless of the political construct, e.g. politics follow virtue?????

    Reply
  7. djf

    Hi bobcheeks. Sorry to say, my answer is the latter. I don’t see a way out.

    I’m not happy about what’s happened to PoMoCon. I mention because I’ve seen your comments there.

    Reply
    • gabe

      djf:

      second that emotion on Pomocon. and it still seems to drop comments.

      I aslo don’t see how anything of value can be restored here w/o a radical change in peoples attitudes and behaviors (funny here I am reading Burke and i propose something radical).

      Your earlier point about putting too much faith in local government is spot-on. I have often reminded folks that in some ways local bureaucrats are even more “officious’ and intrusive than are the Feds. states can, and have been, as oppressive as anything the Feds have done. Still i am prepared to take anything in the way of limiting the monster whose tentacles spread out ever farther from Washington D.C.

      take care
      gabe

      Reply
      • djf

        Hi Gabe. Yes, PoMoCon’s demise is very sad. The wonderful comment threads, which were often just as good as the original post, are just not possible in the new format. I myself have had one of my comments dropped. I don’t know if this was intentional or not. Also, the new commenters tend not to be on the old wavelength. As if that weren’t enough, I don’t even like the new graphics or layout. I suspect that Prof. Lawler was presented with a take-it-or-leave-it proposition by First Things, and had to make the best of it. Maybe he can find a home for PoMoCon somewhere else? So I hope.

        What conservatives who complain about encroaching federal power tend to forget is that the same forces they don’t like in the federal government are at work at the state and local level. My state, for instance (NY), is hopelessly leftwing, and would go even further left if it were completely “sovereign” (God forbid). Even in ostensibly conservative states, for example, the legal profession, as a whole, is far to the left of the general population; overruling Roe v Wade would just result in state-level Roes in probably 40 out of the 50 states. State bureaucrats are just as “statist” as federal bureaucrats. And the state governments themselves have become drunken soldiers, holding themselves up by leaning on federal transfers, gambling and tobacco money. Best, Dan

  8. John E. Jenkins

    Djf, Dan, I am going to drop a few thoughts that continually linger in this (old) head. Some are easy in answer to some of ‘your thoughts’ expressed here. Others I offer in my commentaries.
    I was born just outside of Boston, lived a number of years in N.H. Boston has gone to H…, and N.H. (Me.&Vt. ) are well on their way – in relation to your mentioning of N.Y. But one thing here ‘is’ always ‘out there’ – the sovereign people can change all of that. As for the federals, we need a Jeffersonian revival, along with a Congress responsive to the peoples (States) sovereignty; Impeachment of federal justices in violation of the Constitution. “Are we really involved in nation building now?” Democracy, not our Republic(s) has been the building block of the cosmopolitans and internationals for ‘nation building’; don’t forget the United Nations for one minute. We are part and parcel of it, from this nation’s ‘worldly’ federal’s’ endeavors. (We have lost so many wonderful men, and women, to this international ‘nation building‘– contradictory to the heritage of our founders – and contradictory to me.)
    Respectfully, John

    Reply
    • djf

      John,

      I’ve said my piece on the issue of whether the problem Prof. Frohnen is pointing to is best described as over-extension of federal power. I think you’re mistaken if you think the majority of the electorate is generally on your side on limited government issues, as opposed to having particular complaints about Obamacare or other particular policies.

      I think you’re using the term “nation building” to refer to an active foreign policy in general. I am using the term to refer to the specific activity of trying to change a particular foreign country’s political culture and form of government, as we tried to do in Iraq and have been trying to do in Afghanistan. To the extent you are arguing that we should not have an active foreign policy, I don’t think this is either possible or desirable. “Nation building,” on the other hand, as I (and most people) use the term, is a line of business I think we should get out of.

      Best, Dan

      Reply
      • John E. Jenkins

        Dan, I don’t believe I’ve mentioned “Obamacare” in this particular commentary. I would accept “or other policies”. My conception of him is — he’s a “One world-order President; not unlike previous ones. Do you disagree w/this?
        We certainly need a foreign policy – but “national building” is not ‘an active foreign policy IN GENERAL’ – it is a purposeful agenda of the cosmopolitan mindset for “a one world order”. (And you know what I am talking about.) I appreciate your candid last sentence.
        Respectfully, John

  9. gabe

    DJF / John:

    Good thoughts. I agree that depending upon the definition of nation building one employs we can justify almost anything. The objection that many of us have is to the attempt to ‘evangelize the world’ and make it over again (sorry, Tom Paine).
    We forget (or simply don’t know) just how fortuitous were the circumstances surrounding the American founding. I won’t repeat the details, they are known to most readers of this site (which incidentally is a very good replacement, in some ways for POMOCON), only to emphasize that those conditions DO NOT obtain elsewhere in the world at this time.
    Thus, we should be ever cautious in attempting to “install” or “instill” american democracy in un-fertile soil.

    Nevertheless, there is a need for an active foreign policy. I would go further than some on this site and state that even an aggressive foreign policy in pursuit of valid national objectives or interests in warranted – if not compelled.

    There is an interesting piece at Hoover Institute on “Why Wars happen.” The author uses a form of game theory to demonstrate, somewhat successfully to my mind, that wars happen because one side is deluded into thinking that they possess greater strength. So what does this mean? Given the withdrawal of American influence under the misguided utopian fantasies of the current regime, can one not envision some state actor, Iran, perhaps China/, deciding that the time is right to get aggressive as the Americans are weak and / or unwilling to assert or defend themselves (frankly, I can understand such a mindset). What then?

    No, I think it more prudent to show strength and determination in pursuit of our national interests – so that there is no mistaking our willingess to defend ourselves.

    In other words – bomb “em, pack up and leave, and let them fend for themselves. Frankly, I don’t care if they “build a nation” or not. It simply is not our job to do it for them much less try to remold them in our image.

    take care
    gabe

    Reply
    • John E. Jenkins

      David, instead of sending me to your site, would you please comment on the subject matter, and to the commentators ‘here in’.
      Respectfully, John

      Reply
      • David

        The ReBlog comment is automatic from WordPress. I believe you can disable this in your WordPress settings. I was not sending you to my site, I had referred my readers to yours and WordPress was merely making you aware of that in you comment section.

        That being said, I can’t say I disagree with a word of this article and am waiting attentively for the next installment of the series.

        David

  10. “Secession and Messianic Statism: Evaluating the Current Union of the States, Part 1″ By Allen Mendenhall | Nomocracy In Politics

    […] Editorial Foreword: This essay by Allen Mendenhall is Part 1 of the second installment of a Nomocracy in Politics symposium, “Evaluating the Current Union of States.” Part 2 of Mendenhall’s essay will be forthcoming. This symposium will examine the various costs and benefits that Americans and others incur as a result of our current Union of States–a.k.a., the United States of America. The symposium will progress gradually over a period of weeks. Nomocracy in Politics would also like to credit Mike Church for providing the initial creative impetus for this symposium. Please also consider Bruce Frohnen’s earlier symposium essay here. […]

    Reply
  11. “Secession and Messianic Statism: Evaluating the Current Union of the States, Part 2″ By Allen Mendenhall | Nomocracy In Politics

    […] Editorial Foreword: This essay by Allen Mendenhall is Part 2 of the second installment of a Nomocracy in Politics symposium, “Evaluating the Current Union of States.” Please also consider Part 1 of Mendehall’s piece. This symposium will examine the various costs and benefits that Americans and others incur as a result of our current Union of States–a.k.a., the United States of America. The symposium will progress gradually over a period of weeks. Nomocracy in Politics would also like to credit Mike Church for providing the initial creative impetus for this symposium. Please also consider Bruce Frohnen’s earlier symposium essay here. […]

    Reply

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