The Marginal Republic
The Cossack: Where Free People Reign!
Well, you’ve done it! You’ve just completed your 4 years of NCAA Division I college football as a major success and are a high NFL prospect. Your travel to Indianapolis for the NFL Combine allowed NFL coaches to view your exceptional talent. You are fast, strong, quick and have a high football IQ. You easily understand complex plays and your conversations with NFL talent evaluators have given them insight into your commitment to the game. Your talent level is clear, your maturity gives coaches solace. Based on your position and team needs, your new team is excited to select you as the first pick in the third round that includes a slot signing bonus for $1.1 million, plus your annual salary. You just joined the millionaire’s club, not bad at all for a 22-year-old.
Now you have to sign an agent to represent your interests; somebody who will negotiate on your behalf to provide the best contract terms for you. You sit down with your chosen agent, we will call her Jennifer, and she proposes the following terms and conditions of working with her:
1) Jennifer unilaterally can change the contract at any time. You may not.
2) Jennifer determines her pay rate from you, without your input.
3) Jennifer determines her availability to you, when she works, when she takes vacation and how much vacation she takes, as well as answers your phone calls when she chooses, if at all
4) Jennifer may sue you for any reason under the contract, but you are prohibited from suing her under any circumstances
5) Jennifer may withhold any and all information from you, other than the final negotiated NFL contract that she gets to sign on your behalf
6) The contract specifies a 6 year term and can only be terminated by you signing a contract with a competitor with the same terms. You may not talk to or work for an NFL team without an agent. Working as an NFL player without an agent is prohibited.
What are the odds that you would sign this contract? Is this a good contract, made in your best interest? Is this contract worth joining the NFL or is it too prohibitive? More importantly, who owns the relationship and who is the boss over the next 6 years: you or Jennifer?
The Founders of the United States experiment set up a certainly unique agreement between the people and its governance process: rights bestowed from a higher power than government on to the people and, therefore the immorality of the government to remove them, power distinctions between the federal governments and states, balancing processes within the federal government itself, and a representative Republic with democratic principles. We have a tendency to revere these brave people who set up a complex government from scratch without a real model to look to. Their creation was the model in many ways; one that other countries have looked to model with varying degrees of success.
While I believe the Founders did a wonderful job. I also believe that they got us 85% or so of the way to a stable, long-lasting Republic. The results that the Founders achieved in the late 1700’s was awesome and done without 320 years of systems and organizational design research. Of course, their work should be revered, but it is now up to the current generation of Americans to evaluate the work of the Founders within the context of government actions since the Founding.
One fundamental gap of the Founder’s creation is the fundamental roles of the representatives and the represented. The Founders believed that the ability of the represented should start and stop with determining who the representatives are, without regard to the relationship between the two groups. Law is made by the people’s representatives, with veto power by the Executive Branch and defacto veto power by the Judicial Branch in so far as a law violates our governing contract.
The fundamental issue with government is that people who seek office are usually those who desire power over others, as well as prefer their own freedom to the freedom of the represented. The Founders undoubtedly knew this; I would guess that they were surprised when President Washington retired after his service, rather than utilize the army to manifest dictatorial powers at a time when the country was in its infancy.
We now know that our governance processes and structures at the federal level are mired in conflicts of interest, elitist exceptionism and subjectivity when objectivity is required. “Under justice” prevails for the political class where no punishment occurs for obvious offenses, while “over justice” exists for everyone else – severe punishments meted out at the slightest of pretexts. If you have been reading the Cossack, you are probably well acquainted with my perspectives on this problem.
A very fundamental error committed by the Founders, one I understand they could not have known, is the one-sided relationship between the represented and the representatives. The American people are limited to the decision process of who are sent to Congress. Congress has not only the power to decide the laws, tax rates, regulations and policies, they even have the power to excepts themselves from those laws, tax rates, regulations and policies.
Additionally, Congress gets to define the terms we use in laws, regulations and policies. Let’s take an example: Congress defines what the term “bribe” means as the term relates to the duties of Congress itself. Consider this action from an incentive perspective. I cannot think of another situation where the regulated gets to define their own regulation. A reasonable analogy would be the government making an inquiry to Al Capone to define what “bootleg” means in the Volstead Act. What would be Mr. Capone’s incentive in his definition? Obviously, it would be defined in such a way to ensure Mr. Capone’s current actions remain unhindered. In reality, the government purposely failed to inquire of Mr. Capone’s opinion because he would be subject to regulation.
Imagine the following scenario: what would the American people do if Congress decided that a bribe is defined as payments made to Members by lobbyists or anyone else on any day of the week that started with an S or a T? Certainly, a Member would go to jail if given a bribe on Saturday or Tuesday and would spend 10 years behind bars. Congress could easily brag about their “strong moral compass” and their “seriousness in restricting bribes,” while collecting millions of dollars on Monday or Friday.
Our media in this case would be questioning Members about why Mondays and Fridays are exempted, while the real question is why Congress even has this power at all. There are certain consequential activities that should be the right of the people to decide in a systemic way. Many of the states have this process: referendum. The people can vote to override, preempt or constrain state government as necessary, subject to the judicial check against the state constitution. The Founders, while they established a beautiful creation, failed in this area as it relates to the federal government. The relationship between the governed and its government is tremendously one sided. Please read previous and future editions of The Cossack for deeper perspectives in identifying and mitigating this issue.
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