By: Mark Glennon*
As America celebrates its Independence this week, it’s right to consider the most far-reaching questions raised by Illinois’ crisis.
Did the Founding Fathers miss something? Did we miss something the Founders stood for? Is our form of democracy fundamentally flawed?
Those questions are part of why Wirepoints exists, and why we hope other states follow Illinois’ story.
Illinois inherited assets most states and nations envy. Its GDP remains larger than all but fifteen countries of the world. More importantly, it inherited constitutional self-government.
But it’s failing.
Illinois is bankrupt. The state and many of its towns and cities sink further into insolvency each day — the facts and numbers are irrefutable. Its moral insolvency is less quantifiable but no less apparent. Graft, both legal and illegal, is exposed incessantly, usually to no end. Scandal fatigue overtook the state long ago. Numbed voters left politicians free to do little good and plenty wrong. Not a single major reform, fiscal or otherwise, is currently under serious consideration in Illinois.
How can a democracy have done this to itself?
The reasons are myriad. Many are debatable. Some are particular to Illinois. Most of the 20,000 articles we’ve linked to or written on this site are about those reasons.
But on the overarching question of universal importance — whether Illinois has exposed some fundamental flaw of democracy — the story hasn’t ended. Nobody knows how Illinois’ crisis ultimately will sort out, but there is reason for qualified, partial optimism, albeit over a long time with much pain in the interim.
That optimism derives from the likelihood that much of our crisis will be resolved in courts — federal courts exercising their place in the federal system we inherited — and the hope that those courts will honor the foundational principles of American government. The Founders’ foresight, not their failure, perhaps may yet shape Illinois’ history. Perhaps.
The initial questions that might end up in the federal courts have already gotten some attention. If Illinois amended its constitution to delete its pension protection clause, would the United States Constitution’s Contract Clause still prohibit pension reform? Could the federal Bankruptcy Code be amended to allow bankruptcy for states? Could some other form of federal legislation authorize adjustment of pension obligations? And if Illinois eventually authorizes bankruptcy for municipalities, which is probably unavoidable at some point, many questions about that process remain unanswered by courts.
More fundamentally, it’s only a matter of time before a federal court faces a situation somewhere in Illinois where essential, basic government services fail. A court will face a “police power” question, as it’s called.
Illinois courts have frowned on the concept but federal courts recognize it in exceptional circumstances such as those Illinois eventually will face.
It’s that concept I suspect will become central and will be recognized in some fashion, whether under the label “police power” or otherwise. Government must function. Though the Illinois Supreme Court has essentially read the state constitution to be a suicide pact, permanently committing the state to insurmountable pension obligations, federal courts, I hope and expect, will see things differently.
Perhaps they will even give life to the Guaranty Clause in Article IV of the United States Constitution. Through it, the Founders affirmatively obligated the federal government to guaranty to every state a “republican form of government.” Never mind what “republican” means for now. We’ll come back to that. At a minimum, it means a government of some kind. If basic services truly fail, federal courts will seek to restore them. They will find a way, and the Guaranty Clause would help if it were honored.
A conspicuous portion of the Janus decision handed down last month by the Supreme Court is pertinent. The majority of the court seemed to go out of its way to describe Illinois’ financial problems. Because they are so grave, the court held that the First Amendment prohibited forced union membership because a member should be free to advocate as he chooses on them. “To suggest that speech on such matters is not of great public concern is to deny reality,” the Court said.
The depth of Illinois’ problems, in other words, influenced the Court’s ruling on the First Amendment. So it will be, I suspect, on other Illinois matters ending up before the Court.
But democracy in Illinois does have a flaw that federal courts probably cannot undo. It’s one Benjamin Franklin identified: “If when the people find that they can vote themselves money that will herald the end of the republic.”
Alexis De Tocqueville, author of Democracy in America, warned of the same thing in 1835: “The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money.”
Did the Founding Fathers indeed leave that issue unaddressed?
No. but their check on it has faded away.
The Founders didn’t believe in democracy. They all believed in republicanism — indirect democracy with firm protections for minorities that trump simple majority rule. Republicanism, they believed, provided the check on tyrannical majorities.
“A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine,” said Thomas Jefferson. From John Adams, “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself.” At the Constitutional Convention in 1787, Franklin was asked if we got a republic or a monarchy. With no hesitation, Franklin responded, “A republic, if you can keep it.”
We haven’t kept it. Illinois government wields unchecked power incompetently and voraciously. Homes, particularly in lower income communities, have been confiscated by absurd property taxes used to pay pension promises that were awarded through legislative incompetence and legal bribery. Unfunded mandates became ubiquitous, making the simplest fiscal reforms impossible for municipalities. Legislative maps drawn by legislators let politicians pick their voters instead of the other way around.
In short, statism replaced republicanism. The coalition majority in Illinois became rapacious and tyrannical, exactly as the Founders feared.
Undoing the power of that tyrannical majority in Illinois, however, will be difficult. Federal courts cannot be expected to do it alone because so much of that coalition’s power has become institutionalized, in contrast to the republic the Founders envisioned. The job will be left to the electorate and, in Illinois, the majority of the electorate has shown little understanding of the nature and depth of the state’s problems.
So, has democracy failed in Illinois? Yes, but don’t blame the Founders or their vision of government. Maintain a degree of optimism that federal courts will end up enforcing constitutional checks the Founders gave us and hope Illinoisans eventually will see fit to endorse some state version of the foundational principles the Founders believed in.
*Mark Glennon is founder and executive editor of Wirepoints.