A Letter on Human Nature and the Lawmaking Process
My girlfriend, Jackie, and I first met five months ago. Given my previous work on campaigns and Capitol Hill, it didn’t take long for her to ask about my political views. I explained to Jackie that, while I have specific views on many topics, I care less about policy outcomes than I do about the policymaking process. It matters to me that we separate power horizontally (between the legislative, executive, and judicial branches of government) and vertically (between cities, counties, states, and the federal government). It also matters to me that political actors wield only those powers which are specifically delegated to them. What I didn’t tell Jackie, but what I’m going to write about here, is how this preference for a particular policymaking process is informed by my view of human nature.
When it comes to thinking about human nature and politics, Yuval Levin, author of The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left, offers this pithy breakdown. First, those who see human nature as something that can be improved upon are more likely to start from a place of outrage at what is bad and broken in the world; they are more likely to identify problems and demand solutions. Then there are those who have a more pessimistic view of human nature These people are more likely to start from a place of gratitude for what works in the world, and they are more hesitant to reorder society in order solve society’s problems. In breaking political debate into two visions of human nature, Levin takes a page out of Thomas Sowell’s A Conflict of Visions: Ideological Origins of Political Struggles, in which we learn of the constrained vision of human nature and the unconstrained vision of human nature. Sowell argues that these two visions result in different views on the nature of social reform, the distribution of economic outcomes, and the purpose and structure of government.
With regard to the pace and manner of social reform, those with the unconstrained vision think current views always matter more than views from the past— the dead shouldn’t rule from the grave. As for how those with a more constrained vision of human nature think about social reform, Sowell cites a quote from Edmund Burke. The 18th century politician-philosopher argued that we should “attend to the defects of the social order with the same trepidation with which we would tend the wounds of our father. They are not to be ignored, but neither are they a mandate for hasty experiment.”
G.K. Chesterton’s fence metaphor is also helpful when thinking about the two visions of human nature. The social reformer with an optimistic view of human nature finds a giant fence sitting by itself in the middle of a field. Not knowing why it’s there and seeing no obvious purpose for it, this reformer tears it down without hesitation. The reformer with a more constrained vision of human nature thinks, “We might need to tear it down, but first we need to figure why it’s there.”
With regard to the distribution of economic outcomes, those with the unconstrained vision are more likely to find material disparities immoral and intolerable. They define freedom to require both the absence of “externally imposed impediments” and the absence of “circumstantial limitations which reduce the range of choice.” But those with the constrained vision identify a tension between “allowing freedom of individual action and prescribing equality of economic results.” It is not possible, those with the constrained vision argue, to expect equality of material resources while individuals maintain freedom in non-economic areas. As Alexander Hamilton observed, economic inequality “would exist as long as liberty existed.”
As for the purpose and structure of government, those with an optimistic view of human nature see the political project as a mechanism to solve societal ills, such that the elaborate system of constitutional checks and balances can act as a needless impediment. Those with the unconstrained vision wonder: “What is wrong with a government powerful enough to ameliorate social and economic concerns?” Those with the constrained vision of human nature respond: “The problem is of having no limiting principle. With nothing limiting the action of the state, there is nothing limiting the power of the state. A government with power to give a person everything has the power to take away everything.”
All of this gets me back to my answer to Jackie. More than I care about policy outcomes, I care about having hard limits on those who wield political power and on dividing political power between those who make the laws, those who execute the laws, and those who adjudicate disputes about the law. I also care that we break lawmaking institutions into an upper house, where members serve longer terms, and a lower house, where members serve shorter terms. Our upper house (the U.S. Senate) is designed specifically to slow down passions of the people.
Today, we hear critiques about how small states have the same number of votes as the big states in the U.S. Senate. We hear how the U.S. political system fails to generate “majoritarian outcomes.” Alexandria Ocasio-Cortez recently said the Senate is “undemocratic” because a single senator has the power to impact what legislation can get passed.
But we don’t have a parliamentary system in which simple majorities of 50.1% can dictate the rules of the game with ease. In our system of divided power, U.S. Senators represent states, not a political party. Each elected official in the American system arrives in Washington with a completely different mandate. This Madisonian system, with its competing power centers, makes it challenging to wield power and, therefore, hard to abuse power. Our system is a supermajoritarian system. I like this fact.
I’m not just a fan of separating power horizontally between three branches of government. I’m also obsessed with separating power vertically between cities, counties, states, and federal government. One positive aspect of the Trump presidency was how it reminded Americans about the benefits of decentralization. As Ilya Somin writes in the Washington Post, “In the Trump Era, many progressives rediscovered the merits of federalism and checks and balances more broadly. They saw how state and local governments can serve as an important check on a president whose policies they deplore.” I want an America where progressive havens like Portland, San Francisco, and my home of Charlottesville can chart their own path. I also want an American where devout Jews, Muslims, and Christians can freely exercise their faiths in communities of their choosing.
When we arrange power and responsibility on the most local level possible, we allow for our large republic of different people to experience different governance. As Charlie C. W. Cooke observes in the pages of National Review, “Our trust in our institutions is linked inextricably to their proximity to us. As a rule, local officials comprehend the language and tone of their localities in a way that faraway experts simply cannot. 'I need you to stay inside for a while because of Covid’ sounds a lot less threatening from a guy with an accent similar to your own.” Further, when we deal with problems on the local level, we end up conversing, debating, and yelling with people we are more likely to know. This is healthier for our souls. When something goes wrong in our local community, we can more easily take steps to change that thing; it’s easier to get a councilwoman on the phone than it is to get a congresswoman on the phone.
When we centralize our political debates into all-or-nothing, one-size-fits-all national solutions, we raise the stakes of each election. The more the federal government is in charge, the more scared we get when the “other side” is in power. Giving more power to states and localities makes it easier for political adversaries to coexist in relative peace. If I do not like what my local community does, I can move elsewhere. If I do not like what Washington does, I have few alternatives.
Before moving on from the topic of federalism, it’s essential that I acknowledge how previous attempts to localize power resulted in slavery and Jim Crow. So modern efforts to decentralize political disputes require simultaneous efforts to ensure that local power structures respect the core freedoms of the Bill of Rights.
The rise of Donald Trump reminded us why it’s important to separate power between three branches of government and between local governments and the federal government. Likewise, the Trump presidency reminded us why we should oppose other presidents when they make decisions which surpass their legal authority, even if those decisions are rooted in good intentions and good policy.
Consider Obama’s decision to shield from deportation those who were brought to the United States as children. At first, Obama made it clear he didn’t have the authority to legalize the “dreamers.” On October 25, 2010, Obama said, “I am not king. I can’t do these things just by myself.” A few months later, he said, “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed….To ignore those congressional mandates would not conform with my appropriate role as President.” In 2011, he declared, “Some people want me to bypass Congress and change the laws on my own. But that’s not how our system works. That’s not how our Constitution is written.” Obama then did that which he claimed he could not legally do.
It is a similar story with Joe Biden’s decision to extend the eviction moratorium. This well intentioned policy saved millions of Americans from eviction during the height of the pandemic, but around the time I met Jackie, the Supreme Court ruled that the CDC had “exceeded its existing statutory authority” and that the program could continue only in the wake of “clear and specific congressional authorization.” Acknowledging the legitimacy of the ruling, Biden said he did not possess the constitutional authority to extend the eviction moratorium, and when asked whether the White House could restore the policy, a top Biden official explained that the president “not only kicked the tires, he double, triple, and quadruple checked.” Like Obama, Biden then did that which he claimed he could not legally do.
We should want rule of law even when our guy is in power.
Elie Mystal disagrees. Writing in The Nation, this Harvard-trained lawyer defends Biden’s recent decision to maintain the eviction moratorium, even though, according to her, the “Biden administration’s defense is unlikely to hold up” and that, in court papers defending the moratorium, “Biden Department of Justice made a “legally pathetic argument.”
Elie writes, “I suppose I should chastise Biden for his Trumpian use of executive power.[…].It would be virtue-signaling layup for me to say, “I criticized Trump and now I criticize Biden” because “process matters” and “the ends can’t justify the means.”[….] But let’s remind ourselves of the goals of the Trump administration.”
After listing all the dangers of Donald Trump, Elie acknowledges the double standard. She writes, “If the occupant of the White House is trying to help people, I generally think they should do what they can. If the occupant is trying to hurt people, I think they should be stopped.”
I appreciate Elie’s candid self-assessment, but I’m not convinced. If anyone should know about the dangers of executive overreach it is Garry Kasporav, the chess champion who grew up in the Soviet Union. Kasporav observes, “Democracy is a process, not a result. The moment you go against the process, the moment you accept that your guy, who has the best intentions in this world, can violate the rules, can rig the result with a little bit of a tweak — it starts with little tweaks here and there—then that’s it.”
Human nature the way it is, we need to separate power horizontally and vertically and we need rule of law. Otherwise, we are placing our democracy into checkmate.