The night after Gov. Jim Gibbons and state Senate Majority Leader Steven Horsford addressed Nevadans about our budget crisis, Stanford Law School Dean Larry Kramer delivered a lecture on James Madison and the Constitution. At the risk of offending Madison’s memory, the two events had some connections.
By now, with the special session a reality, you need little reminding of the two speeches. To paraphrase, Gibbons said, “Government bad. No new taxes. Taxes bad. No new taxes. Legislature bad. No new taxes.” And then he said he might accept some new fees. Horsford basically said, “I support the good things government needs to do. But those who can afford to pay for them shouldn’t have to pay for them, so, no new taxes, but the governor is wrong.”
The next night, a few dozen listeners enjoyed the fruits of when government does something right. UNLV’s William S. Boyd School of Law, not yet a teenager but contributing intellectual firepower to the community, hosts the annual Philip Pro Lectureship in Legal History. Here was an opportunity to learn and think, which some oppose on the grounds that dimwitted sound bites are easier.
Kramer’s lecture was based on his book, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004). Kramer advocates a more limited judicial role in interpreting the Constitution than many—liberals, conservatives and judges themselves—claim for it.
Thus, Madison wouldn’t and Kramer doesn’t think much of the Supreme Court imposing its will from either side of the spectrum—or of the notion that every political dispute should lead to a judicial settlement. Already, the Nevada Mining Association has gone to court to block a petition drive that would force its members to pay something approximating their fair share of taxes, rather than letting the public try the initiative process (another mode would be for the Legislature to do the right thing, but that’s asking a lot).
Madison believed in more democracy, not less, with factions competing to shape majority opinion—not one major political party doing whatever the far left wants and another under the control of the far right. He was a product of the American Revolution, which became the cause of his life after an early lack of interest in politics, and he saw the importance of preserving its ideals. Yet we make a mistake in defining any of the Founding Fathers as democrats—they created a republic, not a democracy, and some of them, including Madison, were willing to own other human beings.
Where Nevada can learn from this lies in three points Kramer made about Madison. One was the 18th-century view that leaders had an obligation to lead, requiring them to educate the public they were supposed to serve. If Gibbons opposes new taxes and thinks all government is evil, he should show where and how. If Horsford thinks vital services must continue, he needs to show why they are vital and how to pay for them. Instead, both sides, liberal and conservative, pander to their bases.
Another lesson comes from a lovely Madison quotation. Talking about how to promote peace, Madison said, “Wars may be divided into two classes: one flowing from the mere will of the government, the other according with the will of the society itself,” and he hadn’t even heard of Iraq. Then he added, “As wars of the first class were to be prevented by subjecting the will of the government to the will of the society, those of the second class can only be controlled by subjecting the will of the society to the reason of the society; by establishing permanent and constitutional maxims of conduct, which may prevail over occasional impressions and inconsiderate pursuits.”
Politics has devolved into the equivalent of shooting first and asking questions later. Thus, Gibbons simply attacks taxes, and Horsford capitulates. Not that taxes are always the answer, but no one bothers to think through the question.
Finally, Kramer entertained the audience with his account of Madison’s time at Princeton. He graduated in three years but stayed for the fourth year to party, proving even the Founding Fathers had their priorities in order. That doesn’t justify all of the behavior in Carson City, but it explains some of what ails Nevada. I know James Madison. James Madison was a friend of mine. Jim Gibbons, you’re no James Madison.
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