My Constitution: checks and balances

I want to take a break — perhaps permanently — from writing legalese. Instead, I want to write about my ideas for a communist constitution in ordinary English, at a more abstract level.

At the very highest level, my view of communism is simply thus: the government owns the capital; the people own the government. And I mean really own, especially regarding the latter; not own in theory, not in some abstract philosophical or moral sense, but own in the same "hands on" sense that I own my car or my house, that the (majority) stockholders own a company. The tension, though, comes in keeping a society of some 300,000,000 people functioning efficiently, at the high level (by historical standards) of social cooperation and material prosperity enjoyed by many people (but shamefully, not nearly enough). I don't want to trade cheap air travel or the Internet for freedom: I'm greedy; I want it all.

Keeping a large economy and a large and diverse society functioning relatively smoothly and efficiently seems to require both highly centralized decision-making and specialized expertise, presently provided by our financial institutions (occasionally waving a spoonful of government oversight in their general vicinity). The question in my mind is not whether we need centralized, specialized decision-making, but how to structure the institutions that provide these services. (My anarchist readers may well disagree, but please save your arguments for another post; the question of anarchism will come around again on the guitar in the fullness of time.)

Because I'm American, and because I've studied American government academically and informally for many years, I'm very much enamored with the concept of checks and balances. But simply having any old checks and balances is not enough; we want the right kind of checks and balances. Checks and balances between the legislative (policy setting), executive (policy execution) and judicial (principled independent oversight of policy) seems good in theory, but poorly implemented in actual practice. (The authors of the US Constitution cannot, I think, be blamed; they could not have anticipated modern conditions two centuries in the future.) The problem with the US Constitution is that the Presidency and Congress arguably have been since Jefferson's presidency both become policy setting institutions. Policy execution is (as it has been since every society in recorded history) the domain of the civil service. One enormous problem with the US Constitution is that the role and operation of the civil service is opaque, even at the most local level. So the interaction between the legislative and "executive" have become not a dialectic between policy and execution, but between two policy-setting institutions.

In every corporate and business setting I've studied or participated in both the board of directors as well as the chief "executive" officer create and set policy; it is the vice presidents to actually carry out policy. The interesting dialectic thus occurs not between the CEO and the Board, but between the CEO and the vice presidents. I think there is value in explicitly and directly institutionalizing this dialectic.

So instead of a division between the Congress and the Presidency, I propose an alternative division between the "People's Government" and the Civil Service. The People's Government would assume the role of both the "board of directors" as well as the "chief executive officer", responsible for setting not just fixed, explicit policy but also resolving day-to-day (or month-to-month) situations according to their implicit notions of policy. The Civil Service would then take the role of the "vice presidents" and their various effective departments, responsible for carrying out policy, referring questions that pertain to high level policy to the People's Government on a day-to-day basis.

As to the third leg, I think there's little room to improve on the deep structure of the US judicial system. Yes, the US judiciary provides notable support to the capitalist system, but unlike the Presidency and Congress, this support seems to come properly to the judiciary's "natural" role of independent oversight, rather than being constructed to support capitalism. I find the argument compelling that only the US judiciary (and Western European legal systems in general) has prevented Western capitalism from quickly degenerating into outright slavery and the most crude tyranny. The judiciary ought to be ideologically neutral in structure; just that judges do in fact support capitalism in a capitalist society is therefore not by itself a valid argument against the structure of the judiciary. (Arguments that specific features of the judiciary do indeed privilege capitalism of course remain live.)

I'll talk about the specific structures of these three legs in future posts.