A Republic No More. Jay Cost

the Articles of Confederation. Instead, the powers the new government was to wield had to fit logically with the institutions that were to wield them. The Constitution is not just a compromise between various factions on one question about powers and another question about institutional design. Rather, it is a sensible blend of the views on both questions.

      So how does corruption enter the picture? In this way: since virtually the start of the federal government, politicians have been intent on expanding its powers without revising the institutions that manage those powers. In this, they have dutifully followed public opinion. The country has increasingly demanded nationalistic authority for the government, but has refused to abandon the parochialism inherent to the original design. Indeed, Americans are wont to celebrate the contradiction: we unabashedly demand that our government exercise sweeping powers to solve big, national problems while also remaining excessively sensitive to local concerns. This inconsistency has disrupted the carefully constructed balance set forth in the Constitution. The institutions the Framers created were competent to handle responsibly the powers they assigned them; Americans since then have added extra powers under the false assumption that the same institutions could handle the extra load responsibly. But they cannot, and so the government now behaves irresponsibly. This produces corruption.

      Return to Wilson’s metaphor of the Constitution as a Newtonian system. Each provision is like a force that has a unique vector, and the Framers carefully constructed each one so that the totality of these forces would not only promote true republican government but also satisfy the political demands of the day. Over time, political demands evolved, and politicians have responded by expanding the powers that Washington possesses. In doing so, they have altered the vectors of many of the constitutional forces. But they have never taken care to ensure that the necessary republican balance is retained, by updating the institutions supposed to implement the new powers. Thus, the sum of all the forces produced by the constitutional regime no longer generates public-spirited policy.

      To be clear, the problem is not with expansive governmental powers per se. Rather, it has to do with the institutions of government that exercise those powers. Specifically, we use eighteenth century institutions, originally meant to do much less, to exercise virtually limitless power in the twenty-first century. We could, in theory, redesign the government to make it handle these powers responsibly; we could rebuild the system from the bottom-up following the general principles set forth by Madison. But of course, we have never done that. We have never even really thought seriously about that prospect. Instead, we have chosen to have our cake and eat it too—a government of vast nationalistic powers with parochial institutions. The cost of our ambivalence is corruption.

      There are three major nationalistic powers the government has acquired that the Constitution, as produced in Philadelphia in 1787, never really anticipated. The first is the power to forge a national economic marketplace, the battle over which produced the first great political upheaval in the 1790s. As we shall see in Chapter One, the cornerstone of Hamilton’s program was a nationally chartered bank, which the Constitutional Convention in Philadelphia had explicitly rejected as a federal power. Yet this was deemed an implied power through the Necessary and Proper Clause of the Constitution, and thus began a precedent of interpreting the powers within the Constitution as broadly as politically possible. Since Hamilton’s day, both sides of the partisan divide have embraced the idea that the federal government should promote the national economy, and both sides seek to do it in ways that are not really reconcilable with the Constitution as understood at ratification. This is a power that expanded slowly throughout the ages. In the nineteenth century, it began with the Bank, then proceeded to internal improvements, then tariff protections for business, then direct subsidies for the railroads. Today, there is a vast system of federal supports for businesses, from the tax code to corporate welfare to selective tariff preferences. Putting aside whether these items were constitutional in a legal sense, the fact remains that the Framers envisioned very little of this regime.

      A second power is the restriction of the marketplace to secure noneconomic goals. The first major innovation of this type was the Interstate Commerce Act, which regulated the railroads. The nation has expanded on this regulatory power again and again. Often, these regulations are justified via the Commerce Clause, in Article I, Section 8 of the Constitution, yet the most prominent interstate commerce controversy of which the Framers were aware was a dispute over waterways between Virginia and Maryland. They had no idea that it would one day justify penalties against wheat farmers who grew their crop for private use, as happened in Wickard v. Filburn. The Commerce Clause has become the means by which the federal government can regulate virtually any aspect of American life. Again, whether this is strictly constitutional is not nearly as relevant as the fact that the Framers never saw this development coming.

      The third power is the direct promotion of social welfare, akin to Franklin Delano Roosevelt’s freedom from want in his Four Freedoms speech of 1941. The first major promotion of social welfare on the federal level came with Civil War veterans’ pensions, but those were targeted and temporary. Since then, we have added Social Security, Medicare, food stamps, farm subsidies, and a vast array of other benefits. Again, none of this was imagined in the 1780s. For starters, the nation simply was not wealthy enough to have national support programs for the needy. On top of that, the kind of bureaucratic principles necessary to implement such programs had not been invented yet. So, once more, regardless of whether our modern welfare regime comports with the ideal of securing a more perfect union, the fact is that the men who signed the Constitution, and the states that ratified it, never anticipated such a state of affairs—and of course did not build institutions meant to handle it effectively.

      Taken together, these powers represent a level of nationalism that was unanticipated in 1787. They have grown over time—sometimes slowly, sometimes in great bursts—as leaders have grappled with public problems. Importantly, the government acquired those powers without substantially altering the constitutional structure. As we shall see in Chapter Six, about the only politician of any national prominence who has contemplated revisiting the institutional design to handle these powers was Wilson, at least in his early academic work. There, he bemoaned the irresponsibility of the government, pointing the finger at Madison’s separation of powers and calling for formal integration between the executive and legislative branches. But when a political career beckoned, Wilson decided that vigorous presidential leadership could substitute. As we shall see in Chapter Six, however, the hope of strong presidential leadership was a false one; outside foreign relations, the chief executive’s real power is too unreliable to give our governing institutions a more nationalistic bent.

      How have these expansive new powers unbalanced the Madisonian system? There are four principal ways. First, and most important, Congress cannot handle the powers it has been given. The Framers never would have handed the Congress of the Articles of Confederation the powers in the Constitution, and we should never have given the Congress of the Constitution such expansive authority. As we move through our story, we shall find that congressional incompetence is usually the main driver of corruption. The reason is that Congress, as designed, is simply too parochial. It is actually a fallacy of composition to suggest that Congress is a national branch at all; it is, rather, the meeting place of the representatives from discrete regions all across the country. This was not a problem for the powers handed to the Congress by the original grant, but it became a problem as power after power was added. We shall discover there is a wide variety of ways Congress behaves irresponsibly, but it usually gets back to a single concept: members use the vast national powers they have since acquired to please the parochial factions that are so critical to their electoral efforts. This is the unifying link between problems as seemingly varied as the nineteenth century spoils system and the failure to regulate properly the financial services industry in the twenty-first century.

      Second, they denude the force of the republican principle. Madison depended upon majority rule to thwart minorities that had seized control of the government, though as we saw, he had his doubts because it would be difficult for voters to identify who exactly is to blame. Growing the power of this government has exacerbated that problem to extreme proportions. From the very beginning, the complicated nature of our system made it difficult to assign blame for bad policies. The