A QUARTERLY MESSAGE ON LIBERTY

WINTER 2016VOLUME 14NUMBER 1

ames Madison was a profoundly gifted and brilliant

man with a wide array of intellectual influences. Per-

haps the least well known was the influence of Sir Isaac

Newton. I have been writing about the influence of

Newtonian physics on Madison in the context of con-

stitutional theory. Madison’s records show his fascination with

Newtonian physics, including elaborate charts of orbital bodies

and their gravitational pull. He viewed our tripartite political

system—legislative, executive, and judicial—in such planetary

terms: that they were locked in an orbit. The three branches cre-

ate a stable system through their inverse gravitational pull.

The problem is that now this balance is being thrown off in two

important respects. First, we’ve seen the rise of what I’ve called an

“uber-presidency,” a dominant presidency within the system.

JONATHAN TURLEY

JONATHANTURLEY, APROFESSOROF

LAWATGEORGEWASHINGTON

UNIVERSITY, IS ANATIONALLY

RECOGNIZEDLEGAL SCHOLAR. HE SPOKERECENTLYATACATO

INSTITUTE SEMINAR INNEWYORK.

The Madisonian System: A Republic If We Can Keep It

J

2 • Cato’s Letter WINTER 2016

Presidents have been usurp-ing power, particularlyfrom the legislative branch,for decades. Second, we

have seen the rise of a type of “fourthbranch”—the domination of federalagencies that have become increasinglyindependent in their actions and poli-cies. Today you are 10 times more likelyto be adjudicated in an administrativeproceeding than you are in a real courtof law. There are roughly 100,000 ad-judications in the federal system eachyear, and a million done by agencies.The vast majorities of direct limita-tions and regulations in your life arecoming from agencies, not direct legis-lation. Yet, these agencies are insulatedin a way that really challenges the basicrepresentative democratic values thatthe Framers believed in.

A lot of people misunderstand theseparation of powers as a protection,somehow, of the institutional powers ofthe three branches. That’s not how theFramers viewed it. The Framers viewedthe separation of power as a protectionof liberty. Why? Because they viewedthe concentration of power as the exis-tential danger for any free nation. Theyneeded to create a system that couldguarantee that these powers wouldnever become concentrated in any oneperson or any one branch, and Madison

particularly believed in that. He be-lieved that ambition could combat am-bition. It’s very hard to get me to saythat Madison was wrong about any-thing, but on this one, unfortunately,our contemporary politicians may haveproved him wrong. One of the most unnerving mo-

ments for me came with the State ofthe Union a couple of years ago whenPresident Obama went in front ofCongress and said he was tired of Con-gress not doing enough on immigra-tion, not doing enough on healthcare,not doing enough on any of his propos-als, and that he had decided that hewould act unilaterally. To my amaze-ment, what followed was rapturous ap-plause by half the body. I sat there indisbelief as members of Congress gavea standing ovation to their own func-

tional non-entity status. It waslike giving a human wave foryour own institutional obsoles-cence. It was a moment thatchallenged the very foundation-al beliefs of Madison and thefoundational principles of oursystem of government. Much of what Madison tried

to do was based on his idea ofhuman nature. He believed that the in-stability of most systems came from fac-tions, and that factions were a naturalpart of being human. We did not inventthe separation of powers, but what wedid differently was create a system de-signed to bring factions out in the open.Instead of ignoring them, we bringthem to the surface, so they can be ad-dressed. In our system, these factionalpressures implode in Congress ratherthan explode on the streets of Washing-ton. That’s what makes it so dangerous

Congress is the very thumping heart of the Madisonian system.

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WINTER 2016 Cato’s Letter • 3

when you see authority being si-phoned out of Congress. Con-gress is the very thumping heartof the Madisonian system. It isfor this reason that the conflictwith the president is much moredangerous than some type ofturf fight between a presidentand Congress. It challenges thevery thing that gives stability toour system.Madison said, “Liberty is to

faction what air is to fire, an ail-ment without which it instantly ex-pires. But it could not be a less folly toabolish liberty, which is essential to po-litical life, because it nourishes factionthan it would be to wish the annihila-tion of air, which is essential to animallife, because it imparts to fire its de-structive agency.” What he was saying isthat, while these factions may annoy us,they are the very expression of the lib-erty that sustains us. And that is wheremy fundamental disagreement withthe president lies. There is no license inour system to go it alone. You have onlytwo choices: you can change Congressor you can compromise. What thosemembers were applauding at the Stateof the Union was a government of a dif-ferent kind. And it is one that, frankly, Ihope my children don’t see. What we are seeing is the rise of

what used to be called “the royal pre-rogative.” This was a well-known termto the Framers. For example, KingJames I would constantly take lawspassed by Parliament and change them.His idea was that this is all part of a sortof organic, ongoing process, and he wassimply contributing a reasoned inter-pretation or extension of the law. Ofcourse, people like Sir Edward Coke

and others objected that the King wasarticulating the very inverse of law inexercising such royal license or prerog-ative. The Framers took the same view.Thomas Jefferson said, “We give themthose powers only which are necessaryto execute the laws (and administer thegovernment).” When the president be-comes a legislator, he becomes a gov-ernment unto himself. For this reason,what the president is doing is not oneof the dangers the Framers were con-cerned about; it is the danger theFramers were concerned about. In testifying in Congress, I am

often told that such principles are un-realistic and outdated in the realworld.Members often say that the Framersdid not have to live with the type ofgridlock or poisonous environment wehave today. I often have to struggle tocontain myself and say “You knowwhat? When the Framers wrote thisthing, they were actually trying to killeach other.” It wasn’t a figure ofspeech—they had the Alien and Sedi-tion Acts. Thomas Jefferson referredto his predecessor as the “reign ofwitches.” Our Constitution wasn’t justwritten for times like ours, it was writ-ten in a time like ours. In fact, it was

What the president is doing is not oneof the dangers the Framerswere concerned about; it is thedanger theFramers were concerned about.

“

“

written for the worst times. Indeed,our dysfunctional politics is due inlarge part to the erosion of constitu-tional principles, particularly the con-centration of powers in the executivebranch and the federal agencies. I’m writing a book on what I call a

conarchitectural view of the Constitu-tion, which actually harkens back to architectural theory. The fascinatingthing about architectural theory and

constitutional theory is that they usethe same terms and have the same con-cerns. They talk about “functionalism”and “formalism.” Most professors arefunctionalists, which has contributedgreatly to our current morass. Func-tionalists treat the lines of separation ina more fluid sense and tend to disfavorjudicial review to maintain clear lines ofseparation between the branches. Ifavor a more formalist approach, whichmakes me a bit of an academic dinosaur

and a member of a very small minorityof professors. I believe that the separa-tion of powers, the lines of division, areessential to the protection of liberty andthe maintenance of stability in our sys-tem. Indeed, I view the current mess inWashington as further proof of the ge-nius of Madison and why those lines ofseparation have to be maintained. Toquote Robert Frost, “good fences makegood neighbors.” So I found myself looking more

closely at the concept of structure andthat took me to architectural theory.There I found a strikingly parallel dis-cussion to the one started hundreds ofyears ago by Madison and his contem-poraries. I was particularly drawn tothe theories of how structure influ-ences behavior in so-called “determin-istic designs.” How we structure thingsinfluences not only how people move,but how they relate to each other—werelate differently in an open room thana room that is divided. WinstonChurchill said, “There is no doubtwhatever about the influence of archi-tecture and structure upon humancharacter and action. We make ourbuildings and afterwards they makeus.” Churchill, as usual, was incrediblyinsightful. It is time to return to basics and con-

sider the role of structure in our consti-tutional system. I believe that theFramers viewed our tripartite system asa type of deterministic architecture. Itsort of funnels action and energies; itstructures how we relate to each other.It forces us to deal with each other in away that brings stability and dialogue.That’s why this functionalist approachis so dangerous. We’re removing thesebarriers from the design, and the result

4 • Cato’s Letter WINTER 2016

WINTER 2016 Cato’s Letter • 5

is chaos. The result is a series ofmuscle plays between presi-dents and Congresses. Thecourts have removed them-selves from these debates. Wehave a lack of stability, but wealso have a lack of movement.Because the president can sim-ply go outside the system, hedoesn’t have to negotiate withCongress. He doesn’t have tocompromise. It not only fuelspartisan brinkmanship butpoorly crafted laws and regulations.For example, by any measure, the Af-fordable Care Act was a uniquely badpiece of legislation when it was passed.It was filled with conflicts, gaps, anderrors. Even Democrats, I think, willtell you privately that it was a fairlyraw piece of legislation. Why? Be-cause it never went through a biparti-san scrubbing, and negotiation, andcompromise. It was a muscle play. Andthe result was a uniquely bad piece oflegislative work. Madison believed that by tapping

into human emotions, tapping into thistendency toward factions, playing fac-tions against each other, he hadachieved a stable constitutional systemfor one of the most pluralistic nationson Earth. It was in fact the system thatwe need today—just as we needed itthen. However, we lost faith in the val-ues that support our Constitution. Thebranches themselves are no longerfighting for their institutional integrity,as he expected. When you look at thosemembers applauding the president inhis pledge to go it alone, you realize howfar out of faith we have come.In watching our system descend

into confusion and chaos, one is often

brought back to one of the most chill-ing scenes in our history. It occurredwhen Benjamin Franklin was comingout of the Constitutional Conventionin Philadelphia, a woman by the nameof Mrs. Powell went up to him and said“Dr. Franklin, what have you wrought, arepublic or a monarchy?” and he turnedto her and said “A republic, madam, ifyou can keep it.” I always tell my stu-dents that’s the scariest thing a Framerever said or wrote, because what Ben-jamin Franklin was saying is that theycould do nothing more than give us asystem that could protect our liberties.However, every generation has to keepit for the generation that follows. Forthe first time in my life, I am deeply con-cerned about the system my childrenwill inherit. We are failing them in ourweakness and our partisanship.The question is, “What can we do

about it?” And the answer is found in in-stitutions like Cato and with the peoplein this room. We have no choice but totry to convince our neighbors that oursystem is changing. Without a debate,without a whimper of objection, it’schanging. And we can’t let this momentpass because this remains a republiconly if we can keep it. n

“Our Constitution wasn’t just written for times like ours, itwas written ina timelike ours. In fact, it was written for the worst times.

“

6 • Cato’s Letter WINTER 2016

WALTEROLSON is a senior fellow at the Cato Institute’s Cen-ter for Constitutional Studies. Prior to joining Cato, Olson wasa senior fellow at the Manhattan Institute. He founded andcontinues to run Overlawyered.com, widely cited as the oldestblog on law as well as one of the most popular. He has been acolumnist for Great Britain’s Times Online as well as Reason.His writing appears regularly in leading publications, and theWashington Posthas dubbed him the “intellectual guru of tortreform.” He is the author of several books, including The Liti-gation Explosion, Schools for Misrule, and The Rule of Lawyers.

scholar profile

Walter Olson

You’ve been tackling Maryland’s notorious-ly gerrymandered districts after Gov. LarryHogan chose you to co-chair his bipartisanredistricting reform commission. Couldyou talk a bit about that experience?

Libertarians haven’t been very active on redis-tricting issues, yet gerrymandering exemplifiesthe way an entrenched political class can use gov-ernment power in self-serving ways to insulate it-self against voter discontent and correction. InMaryland, Gov. Larry Hogan campaigned on apromise of reform, and aside from Hogan’s fellowRepublicans the cause has drawn crucial supportin the state from some progressive Democrats aswell as good-government centrists. All thesegroups were represented on our commission, andas we worked through dozens of practical issues ofhow an independent redistricting body wouldoperate, it was gratifying to help craft recommen-dations that kept a broad consensus togetheramong diverse participants. Our marching orderswere quick—in three months, we held five publichearings and several workshops—and I’m proudthat we delivered on time a report grounded inthe best scholarship that can serve as a resourcefor reformers nationally as well as in Maryland.

You supported the move to legalize same-sex marriage but have been criticalof some of the gay rights movement in the aftermath of Obergefell v. Hodges.Why is that?

Most libertarians I know basically want govern-ment to 1) leave gay people alone in their privatelives and voluntary interactions, and 2) treat citi-

zens neutrally otherwise, whether it be in hiringapplicants for public service based on talents orextending to same-sex couples the same legal sta-tuses that are available to conventional couples.In the United States at this point, for the mostpart, those goals have been accomplished. Alas,the organized gay movement is following thewell-worn track of the movements that claim tospeak for women and racial minorities. Unsatis-fied with the goal of freedom, public neutrality,and getting on with life from there, it wants gov-ernment programs galore, heightened identitypolitics awareness, and continued expansion ofcoercive state authority—as in the proposedEquality Act in Congress, which would turn eachlocal refusal to cater a wedding into a potentialdiscrimination case in federal court. No thanks.

How did you end up a libertarian?

At age 13, there being no new James Bond novelout, and a friend having recommended Rand, Istopped by a drugstore and used my allowanceto buy Capitalism: The Unknown Ideal. In ret-rospect, I’d been primed by years of dinner-table conversation taking for granted valueslike personal independence, the integrity ofwork, and what Deirdre McCloskey calls bour-geois dignity, the sense of business as an honor-able calling. Much of that came from my moth-er, but it probably helped too that my father,who immigrated to Michigan from Sweden,had benefited from the American propositionof liberty and opportunity. n

On December 18, 2015, Presi-dent Obama signed into lawthe Protecting Americansfrom Tax Hikes Act of 2015

(PATH Act). The bill’s name makes it soundlike Christmas came early. To the contrary,the package of tax extenders arrived longoverdue—emerging from the December 31,2014, expiration of more than 50 tax breaks. Better late than never, right? That’s debat-

able given the size and scope of this legislation.On the one hand, PATH permanently codifiesand extends major provisions that ensure wemay keep more of what we earn. But this $620billion tax bill wasn’t written for the expresspurpose of relieving the American taxpayer.Despite positive business expensing and de-ductibility provisions, PATH preserves windand solar tax credits, in perpetuity. It also makesthe Earned Income Tax Credit (EITC) expan-sions permanent, thus enshrining additionalwealth redistribution into law. Low-incomeworkers would be better served by the removalof government barriers to investment, job cre-ation, and entrepreneurship. Fortunately for all Americans, PATH ac-

knowledges the virtues of beneficence by perma-nently extending certain charitable giving incen-tives. For instance, the bill cements thededuction allowed for charitable contribution ofreal property for conservation purposes. It also allows individual retirement account

(IRA) owners aged 701/2 and older to transferup to $100,000 annually to one or more charitieswithout having to recognize the distribution asincome. Donations will now count as part of theIRA owner’s required annual withdrawal. Here’show it works: say the owner’s required payout is$20,000 in 2016 and he or she donates half ofthat to a local school and symphony. Now this

patron only has to withdraw the other $10,000from the IRA. While there’s no tax deductionfor the donation, the IRS doesn’t recognize it asincome, either. As the Partnership for Philan-thropic Planning observes, this lower incomehelps “charitably minded donors avoid taxes onSocial Security benefits, higher Medicare premi-ums, higher tax brackets, and surtaxes such as the3.8% net investment income tax.” Distributionscan be made only from traditional or Roth IRAs.Despite the popularity and belated perma-

nence of the IRA charitable rollover, the billleaves room for improvement. The Council onFoundations issued a statement outlining theprovision’s shortcomings—it’s still limited totaxpayers 701/2 or older; the gift amount iscapped at $100,000; and donors are specificallyprohibited from making charitable rollovers todonor-advised funds, supporting organizations,and private foundations. Still, absent an expiration date, donors now

have the ability to plan their future IRA-re-quired minimum distribution with the knowl-edge that the rollover is available. The law isretroactive to January 2015, so it blesses IRAtransfers made earlier this year. Gifts for 2015must have been made by year’s end. To qualifyfor the tax deduction, the donor can’t receiveany goods or services in return for the rollovergift. Consult your financial adviser to determineif an IRA rollover contribution to the Cato In-stitute would be advantageous. Distributionsshould be made directly by your IRA trusteepayable to the Cato Institute. n

TO LEARN MORE ABOUT VARIOUS SUPPORT

OPTIONS, PLEASE CONTACT HARRISON MOAR

AT HMOAR@CATO.ORG OR (202) 789-5259.

WINTER 2016 Cato’s Letter • 7

A New Way to Give

This book is a model of good science.Bad scientistsignore uncomfortable facts; good scientists embracethem. The environmental facts are that theglobe is, yet again, warming—but only gently. Pat Michaels describes himself,wittily, as a lukewarmer, and in thiswitty but penetrating book he shows how good scienceand sane policies can march together to benefit us all.

I n Lukewarming: The New Climate Science that ChangesEverything, Pat Michaels and Chip Knappenberger explain the scienceand spin behind the headlines and

come to a provocative conclusion: climate change is real, andpartially man-made, but it is becoming obvious that far morewarming has been forecast than is going to occur. Global warming is more lukewarm than hot. This fresh analysis is engaging and enlightening to readers of all backgrounds andprovides an invaluable briefing to those looking to be moreinformed about global warming and the data behind it.

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—TERENCE KEALEY,Vice Chancellor of the University of Buckingham

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