An excellent article by James DeLong and brought to my attention by Glenn Reynolds.
Excerpt:
The United States has been called the oldest nation in the world, in the sense that it has operated the longest without a major upheaval in its basic institutional structure.
From one perspective, this characterization is fair. The nation still rests on the Constitution of 1787, and no other government can trace its current charter back so far. Since then, France has had a monarchy, two empires, and five republics. England fudges by never writing down its constitutional arrangements, but the polity of Gordon I is remote from that of George III. China’s political convolutions defy summary.
Shift the angle of vision and the continuity is less clear, because we have had two upheavals so sweeping that the institutional arrangements under which we now operate can fairly be classified as the Third American Republic. Furthermore, this Third Republic is teetering (these things seem to run in cycles of about 70 years) and is on the edge of giving way to a revised Fourth Republic with arrangements as yet murky to our present-bound perceptions.
I continued my discussion on The Volokh Conspiracy with this:
Stonestool, you should not be amazed by those who believe that the text of the constitution means what it says. The legitimacy of any regime depends on the willingness of the people to accept that it is acting according to the rules that have been established – the constitution, Mandate of Heaven, the firstborn of a king – whatever the rules are. I would rather have a constitutional argument about the legitimate existence of an Air Force than the chain of reasoning that says that my failure to buy an insurance policy is impinges on the government’s powers to regulate commerce with foreign nations, among the several states and with Indian tribes. The rest of your comments are of a similar nature. You really don’t persuade people by insulting their intelligence.
The fact is that the current regime is in the process of suffering a crisis of legitimacy and I’m not talking only of the Obama administration but of the entire sweep of legislation and law since the “New Deal.” Meanwhile the law clerks are having arguments about the applicability of Wickard and Raich when the roof is on fire. Those people marching in the streets are animated by fairly big ideas about the size and scope of government. They came out before the health care mandates were passed. The passage of that law simply fed fuel to the fire.
Dilan Esper is arguing that failing to uphold the present course would be too destabilizing. Talking about letting prisoners free, a raft of state regulating, I’m waiting for predictions of plagues and locusts. The Federal government just spent somewhere between $1 and $2 trillion dollars that it did not have on various schemes to stimulate the economy without affecting the 10% unemployed and 18% underemployed. That wasn’t the deal that the people were promised. They had started to question the rules of the game, now they are becoming convinced that the bozos running the bus are not only corrupt but inept. And, oh, by the way, please note that foreclosures are stopping. If you think that’s good news for the economy, you are very mistaken. All those banks that you thought were solvent suddenly are not.
There is an interesting article by James V. DeLong entitled The Coming of the Fourth American Republic. It’s long, but worth a read.
The fact is that the current regime is in the process of suffering a crisis of legitimacy and I’m not talking only of the Obama administration but of the entire sweep of legislation and law since the “New Deal.” Meanwhile the law clerks are having arguments about the applicability of Wickard and Raich when the roof is on fire. Those people marching in the streets are animated by fairly big ideas about the size and scope of government. They came out before the health care mandates were passed. The passage of that law simply fed fuel to the fire.
Dilan Esper is arguing that failing to uphold the present course would be too destabilizing. Talking about letting prisoners free, a raft of state regulating, I’m waiting for predictions of plagues and locusts. The Federal government just spent somewhere between $1 and $2 trillion dollars that it did not have on various schemes to stimulate the economy without affecting the 10% unemployed and 18% underemployed. That wasn’t the deal that the people were promised. They had started to question the rules of the game, now they are becoming convinced that the bozos running the bus are not only corrupt but inept. And, oh, by the way, please note that foreclosures are stopping. If you think that’s good news for the economy, you are very mistaken. All those banks that you thought were solvent suddenly are not.
There is an interesting article by James V. DeLong entitled The Coming of the Fourth American Republic. It’s long, but worth a read.
As the government has grown in size and reach, it has justified its claims to power by accepting ever more responsibility for the economy and society. Failure will result in rapid loss of legitimacy and great anger. It is amusing to read pundits’ pronouncements that the Chinese government must deliver economic stability and growth or suffer social unrest; what do these pundits think will be the fate of an American government that fails in these tasks? And as the government’s reach extends, any chance that it will meet its self-proclaimed responsibilities declines.
Law professors may want to begin thinking about what happens to American jurisprudence of the current trajectory of the law is changed. I think it was Herb Stein who said: “Things that can’t go on forever don’t.”
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