My prefered definition of ‘history’ is “telling true stories about the past”. This is a true story, but like all stories things that don’t advance the plot are left out. Remember when reading that the same story can be told in different ways. If you don’t like my story then do let me know yours.
I know the following for sure: There will be a serious constitutional crisis in America during my lifetime. Ditto the UK, ditto the EU, ditto China, every country has at least one crisis per lifetime. But let us focus on the US for now.
I don’t know what the crisis will be about. I don’t know who will be President. I don’t know what the distribution of State Governors will be. I don’t know what the judicial philosophy of the Supreme Court will be. I don’t know much. Can we get any hints from the past?
Consider some turning points in US history. Look at them all and see if you spot a family resemblance.
The first crisis was Independence. Several state legislatures and a figurehead congress opposed the power of Parliament and King. They use very dirty tactics (start a war), invent a whole new Union, give it a bunch of new powers, and the crisis ends.
The state of play after was simple enough. 13 independent nations were busily writing up constitutions in the latest enlightenment vein. There wasn’t enough central power to pay the troops or stabilise the currency. This was a serious problem. Rule one of statecraft: pay the damn troops.
And so second crisis: The constitution. I’ve talked about it before. Constitutions are in the air, so we get the Federalists. They use very dirty tactics, invent a whole bunch of new federal powers, and the crisis ends.
The state of play after: The states are in practice more powerful than the federal government. But it seems irrational and not very enlightenment to have state-level exceptions to universal national laws. And it’s the federal judges appointed by the federal executive and legislature who decide what power the federal government has. So we get decade after decade of decisions that say federal rules override state rules.
And so third crisis: America decides that slavery is the battleground they will fight the question of states rights on. We get Lincoln (America’s second greatest tyrant). He uses very dirty tactics, invents a whole bunch of new presidential powers, and the war ends.
The state of play after: the states are under no illusion that the federal government can overrule them and they cannot escape that power. But so long as they do nothing abhorrent they can still keep day to day control of their internal economy, criminal law etc. This state-level control of economic policy meant when America had a long run of awful bank crashes and recessions, the disunited states could not deal with them.
And so forth crisis: The Great Depression. The states cannot deal with the economy. Something must be done. And FDR (the greatest tyrant in American history) decides it must be done by the federal government. He uses very dirty tactics, invents a whole bunch of new presidential and congressional powers, and the Depression ends.
The state of play after: The US congress is clearly in control of the nation. They realise they can’t micromanage everything so they set up agencies like the EPA and OSHA to micromanage for them. After a while the state needs so much constant management that congressional oversight (let alone control) becomes impractical.
And so fifth crisis?
If I had to guess I’d say some crisis where these agencies either lose their legitimacy, or congress tries to stop them and loses its legitimacy. I guess historians half a century from now will talk about what powers the US gave to agencies, what controls they were under, what control was taken away from the states and from congress in exchange.
It is not predictable at the moment. But we can guess some things from the patterns above.
Dirty tricks: The new system will be nakedly partisan, imposed by force of will over the objections of law and tradition
Centralisation: The body that makes practical decisions about who has what authority will gain new and scary powers.
Short term gains: The new system will solve the crisis and Make America Work Again. Expect this to be taken as proof by all that the new system is better.
Will this new system, when it comes, be better? I don’t know. I don’t know if any of the previous systems have been better. I know they all made dramatic and scary changes for very very good reasons. And I know the results after were mixed, with unintended consequences.
What should we do about it?
Well, one thing that would really help is if we talked about it in advance of making the decision. If we avoid railroading people into agreeing with the new consensus when it arrives. If we chose the new consensus because it seemed like a good idea rather than like an expedient one.
How would you design the modern US regulatory framework if could start over? Who would be in charge of what? Who would be elected and who appointed? Who would have oversight? How would you make sure the overseers had the knowledge they needed? How could voters overturn bad policy? How would a ballast towards long-term thinking be provided?
Candidates are reminded to write only on one side of the page. There is a time limit, but I don’t know what it is.