Power and the Political Debate

Many of the great issues of American politics have long been settled.  The result is a common canon of beliefs to which most of us subscribe.  While it may be far-fetched to think America is about re-open the most fundamental of debates, we are inching ever closer to that possibility.

Americans of all political stripes, and from every cranny of our demographic olio, agree on the basics.  Individual speech, wide personal license, a healthy dose of privacy, and so forth.  Our debates are really matters of degree.

For example consider language.  Everyone thinks it bad to yell “fire” in the crowded theater, and we accept restrained broadcasts on the public airwaves.  Where rules end decency and courtesy usually continue.  Most of us refrain from blue language in the presence of strangers, or at least children.  The balance of individual liberty that permits one to act on his unfettered will is offset by the liberty of the other to live according to his own proprieties.  The fine boundary lines – at what time may you use what word on which television station – is a reasonable place for strong differences of opinions within a common framework of principle.

Yet in the tug-of-war is between freedom and responsibility, the individual and the community, or even between freedom and efficiency, we can cross a line between calibrating two values and actually challenging the existence of those values.

Marcus Aurelius instructs that all questions should be examined from first principles.  This is remarkably useful advice.  In deciding an issue we must discover what core values are the opposing ideas moored to?

I invite you to consider two cases, one general and the other quite specific.

In the specific example the United States Supreme Court will this term decide Sackett v. Environmental Protection Agency.  Mr. and Mrs. Sackett own .63 acres of land subdivided from a larger lot near a lake in Idaho.  They want to build a house.  The EPA ruled that the Sackett property is “wetlands,” and therefore part of the waters of the United States thus subject to the Clean Water Act.  As a result the EPA is preventing the Sacketts from building their home.

As a conservative and Constitutional originalist I side with the Sacketts.  I believe strongly in the sanctity of private property and accept, as most of the Constitutional framers argued, that all of our basic liberties are rooted in the existence of protected private property.

Some middle-of-the-road types favor the Sacketts by objecting to a carelessly imposed but well intentioned regulation.  They agree with Mr. Sackett, who has the appropriate local authority to build and has asked “how can you call it a wetland when it’s a lot in an existing subdivision that has a sewer hookup?”

Friends on the left are characteristically more defensive of the EPA.  Whether or not they accept that this particular case unfairly burdens Sacketts, folks on the left are willing to fight for what they see as a greater ecological good.

Crucially, there is something more at stake.   In 2007 the EPA issued a compliance order halting construction and ordering restoration of the land to its original state.  The backhoes are quiet, but the original condition has not been restored.  The Sacketts are being fined $37,500 a day for non-compliance.  Incidentally, the lot cost them $23,000.

Here is the punch line.  The EPA has suggested that the Sacketts could have obtained an exception to the ruling for far less than they have spent on legal fees and fines.  The basis for the EPA’s actions are regulations adopted by the EPA.  This case is reaching the Supreme Court because lower courts have rejected the Sacketts challenges to the EPA ruling.  So we have an unelected body, the EPA, issuing rules that are immune to elections, and protected from debate by the courts.  The nature of the fines with the absence of recourse is tantamount to extortion, or at least bureaucratic bullying.

Should the Sacketts win, the ability of the EPA to act will be curtailed.  Should the EPA win, an individual’s right to act will be curtailed.  This case is beyond determining the appropriate balance between environmental protection and property rights.

The general case is about general levels of taxation.  Folks on the left feel argue that severe budget deficits be meet with more taxes from the rich, while folks on the right like to suggest that the t.e.a. in Tea Party stands for “taxed enough already.”

So what is the appropriate level of taxation?  A flat tax seems fair to many, and greater responsibility on the most successful seems fair to many others.  Yet at stake is an issue far more fundamental than solving a budget gap because those numbers do not add up.  Full confiscation of all the wealth of the top one percent of earners would cover less than ten percent of the budget deficit (not total budget) for one year.

The fair, or correct, level of taxation is something open to heated debate.  Everyone agrees that there needs to be some taxation.  One side wants less, the other more.  Returning to Marcus Aurelius and reducing the subject to first principles we discover that the issue of taxation balances the right of an individual to reap the fruits of their labor versus the obligations everyone must pay to live in a civic community with a common defense, and so forth.

Here, as in the Sackett case, I believe we can glimpse a tipping point.  Both of these issues, as both weigh the rights and responsibilities of one against the group, each threatens to change a debate from one of degree to one of shared values.

The IRS indicates that the top 1 percent of income earners, claim 17 percent of the national income and pay 37 percent of all federal taxes, meanwhile the bottom 50 percent of income earners claim 14 percent of the national income  yet pay a mere 2 percent of collected taxes.  In fact we are nearing a threshold that will see more than half of the county – a clear voting majority – take more from the system than they put in.  Like the EPA who would be removed from due process requirements, they will have the ability to essentially bully others into living according to their whims.

If America reaches a point where an unaccountable bureaucracy or an emboldened majority can impose their will without democratic recourse our nation will have lost its shared set of core values.  At that point the nature of our political debates will change significantly and our heritage of equality and freedom will erode.


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