5.13 Constitutionalism is secessionist

(Thirteenth in series: The interpretation of statutes and the denial of judges' powers.)

The obvious reason to think secession is Constitutionalism's weakest point is that's where Constitutionalism almost broke. The Federal government won the Civil War militarily and morally, but neither victory meant the North had the better legal theory. Secessionist movements continue to lurk at the social margins because Constitutionalism's logic favors the right of states to secede.

The U.S. Constitution contains vertical as well as horizontal checks and balances, the federal government balanced by the states. The federal government can preempt the states in distinct domains, but outside, the States have exclusive jurisdiction. Yet, the system is ultimately unbalanced, in that a branch of the federal government resolves conflicts between the states and the federal government. Unlike other checks, where each evokes a potential countercheck, the states can't answer an adverse decision by the U.S. Supreme Court. The Supreme Court may be sympathetic to states' rights, but the long-run trend is in the opposite direction to the extent the structural factor determines the drift.

The federal government continually gains power at the states' expense. To note this trend is not to extol states' rights or to maintain they beneficially check the federal government but only to mention a consequence of structural imbalance; nor is it to say that the imbalance — the structural deviation from blueprint — lacks adverse consequences. Missing for a true system of mutual checks is the necessary counterweight in a system where states' rights are supposed to endure: the right of the states to secede. That secessionism is simultaneously inimical to the Constitutional system points to Constitutionalism's peril, not its salvation, but secessionist movements' failure also shows that for general historical determinism legal structure isn't omnipotent.

5.12 Checking and balancing a country until it disintegrates

(Twelfth in series: The interpretation of statutes and the denial of judges' powers.)

Freed from Europe's traditional fetters, the American republic quickly invented its own. A pluralist society might seem ideal for instituting checks and balances, but pluralism undermines the Constitutionalist system. Pluralism causes the system to check the functioning of the system itself by stymying the process of one governmental branch stymying another. Each branch is itself subject to checks and balances, each balancing act involving so broad a mix of sectoral interests that the law of large numbers eliminates the possibility that government branches will ever differ deeply on policy.

Multiplicity of interests neutralizes the top levels of the system of checks and balances as these ramify downward. A system of checks and balances leads to the balancing test as the basic decisional mechanism in constitutional law because diverse substantive matters, such as rights, express a conflict between upstream institutions that the courts must keep in balance. Balancing tests ramify downward because of the mechanism's logic and the metaphor's power. If in deciding A you balance B against C, and over time changes in law and in society make C controversial, at that point it is natural to balance D and E as factors contributing to C. Changes in law and social circumstance require balancing at progressively lower levels: balancing ceases to be about balance if subordinate allocations disregard relative weight.

Checks and balances encourage interests to manipulate branches of government to maintain the status quo because interests can readily impose themselves, even when only mildly concerned. Interests are encouraged to feed omnivorously because their influence depends on relation to the decisionmaker, rather than issue relevance. Every controversy embroils numerous interests. The most powerful interests stay most powerful, but their influence is felt across the board, not selectively. The result engages the whole system and nullifies the topmost checks and balances.

With checks and balances in a politically sectoralized society, which the Founders vainly imagined capitalist pluralism could avoid, the government suffers paralysis when it must choose among options affecting numerous interests. Checks and balances in a politically sectoralized society translate as paralysis rather than caution, this in an era when the presumption against state action disappears. A different structural principle, notably parliamentary supremacy, differs in the engendered pattern of interested intervention. Government form is a source of American backwardness in areas such as infrastructure and education.

The Constitutional system chokes structural change — so, for example, the Government offers handouts to huge malfunctioning banks because achieving nationalization is systemically impossible — yet, Constitutionalism is so entrenched that a run around the law is unlikely. Fears arise that Constitutionalism will fracture at its weakest point — secession.