THE SHIELD OF ACHILLES (45 page)

The transition to the market-state is bound to last over a long period and put into conflict the ideals of the old and new orders. It should be emphasized that just what particular form of the State ultimately emerges from this process cannot confidently be predicted. It is a failure of imagination, however, to assume that the only thing that will replace the nation-state is
another structure with nation-state-like characteristics, only larger. It is in some ways rather pathetic that the visionaries in Brussels can imagine nothing more forward-looking than equipping the E.U. with the trappings of the nation-state. Just now, it seems to be the Euro, a currency that, like all currencies, will be reduced to an accounting mechanism in the face of the ubiquitous Visa card. The key idea of the modern state is the exclusiveness of its jurisdiction. It is natural that commentators then should infer from the exclusivity of membership in the E.U. that jurisdictional exclusiveness must follow, but this rather misses the point of the modern state's development in the first place, its ability to deliver legitimacy. Facing the pressures described in this chapter, the State is likelier to resort to the pattern of accommodation and change we have seen in earlier periods than to self-destruct by dissolution into a larger mass. If the E.U. were to persist in its current course, it would be attempting to thwart the emergence of a market-state. Instead, it may be that the Union itself will adapt, enabling rather than attempting to suppress this new constitutional order.

It should also be emphasized that I have not argued, and do not wish to argue, that the State has changed in the precise ways it has
because
of strategic challenges to itself. Many elements in the development of the State account for the fact that it has changed in exactly the ways it has; moreover, the State might have innovated in other ways; the innovations that did occur might have occurred anyway. I claim only that a coherent and helpful account can be given of the constitutional changes the State has undergone in periods of strategic threat, and of the strategic innovations that accompanied the new constitutional orders that have emerged. That said, what guesses can we make about how states will adapt to this new form?

The market-state will live within three paradoxes: (i) it will require more centralized authority for government, but all governments will be weaker, having greatly contracted the scope of their undertakings, having devolved or lost authority to so many other institutions, including deregulated corporations, which are in but not of the State, NGOs (nongovernmental organizations such as the Red Cross, the MacArthur Foundation, the Natural Resources Defense Council), which are in but not of the market, and clandestine military networks and terrorist groups, which set up proto-markets in security and function as proto-states at war; (2) there will be more public participation in government, but it will count for less, and thus the role of the citizen
qua
citizen will greatly diminish and the role of citizen as spectator will increase; (3) the welfare state will have greatly retrenched, but infrastructure security, epidemiological surveillance, and environmental protection—all of which are matters of general welfare—will be promoted by the State as never before. These three paradoxes derive from the shift in the basis of legitimacy from that of the nation-state
to that of the market-state. Let me speculate about possible policies for one state, the United States, within this new constitutional order.

Some consequences of the strategic innovations that won the Long War require a stronger and more centralized government than before. For example, nuclear weapons strategy, clandestine intelligence collection, and covert action sometimes require a level of secrecy that is incompatible with open government or even the relation been parliamentary oversight and the citizenry that links government to the people. Unless the president has the authority to launch nuclear weapons, the system of assured annihilation is changed into a very different scheme of risk taking that might well tempt an adversary into making threats—or executing them—in the hope of paralyzing the United States. It is simply absurd to think that a system of nuclear deterrence could be maintained if the president had to go to Congress for a declaration of war before launching a retaliatory or pre-emptive strike. But how can the difficult problem of nuclear command and control be reconciled with the new constitutional demands of the market-state for transparency and citizen participation? The answer may lie in changing our expectations about what legitimate delegation consists in and accepting very broad predelegations of authority, as it were, that can be withdrawn by the normal statutory process but that otherwise remain in place. This changes the burden between the branches of government, admittedly; after such a predelegation, the Congress would have to muster a two-thirds majority to remove power from the president by overriding his veto of legislation repealing the delegation, should he choose to resist. We are already moving from a system in which the State is the principal actor on behalf of the nation to one in which the State is the facilitator of practical affairs. The market-state seeks a role as enabler and umpire, and shuns the role of provider and judge. Broad legislative delegations—such as “fast track” trade authorizations and the consolidated budget—are above all simply practical and efficient. Increasingly, the justification for state action will turn on its relation to minimizing transaction costs. Redistributive and meliorist policies will come under intense attack on these grounds.

This decoupling of state
apparat
and national community is consistent with developments in war itself. If war becomes again, as it once was, an affair of states rather than of peoples—if it becomes, in Michael Howard's words, “denationalized”—this may not be such a bad thing. It is true that this move tends to isolate the executive from the body politic, making it “a severed head conducting its intercourse with other severed heads according to its own laws.”
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There will be little sense of the mass participation that characterized the Long War and that united nationalism and militarism
in the creation of the nation-state. But if this is no longer a military necessity, should our constitutional forms continue to demand it? Can participation be supplanted by mere observation, coupled with Internet opinion polling, rather than voting and serving? What seems likeliest is that expectations will change, ultimately corresponding to the change in strategic requirements that no longer require vast armies of conscripts—though again I note that the precise way in which this accommodation will play out is not predestined.

Other responsibilities of the market-state may also lead to a similar delegation of power, e.g., the monitoring of epidemics and diseases, of inter-national migration, of terrorism, of espionage, and of threats to the environment. All of these spheres of governmental activity are ill-suited to effective oversight by the market. Some depend on maintaining the secrecy of crucial information, while others require a single governmental voice in a dialogue with other governments. In both cases, transparency and public knowledge are sacrificed.

The successful discharge of the responsibilities just discussed is only possible in a constitutional system with a powerful, centralized, and, above all,
trusted
executive. Innovations of the 1970s, like the independent counsel, or detractions from the unitary executive generally, as well as the contempt with which claims of executive privilege are customarily greeted, are hardly compatible with the kind of decisive executive demanded by the market-state. It's not that the president must be above that law: that would be utterly and obviously contradictory of the principles of the American constitution. Nor should the presidency be inferior to the judiciary, the Congress, or the press, the executive's principal competitors. It's rather that our expectations about what the law should be have been shaped by the endgame of the nation-state and its close identification of the State with the nation. When these expectations change, the glamour and prestige of the presidency will suffer. As an institution, it will find itself in competition with the media to a greater degree even than with its traditional competitors in the other two branches. It will be important to ensure that the president's ability to govern, in the limited areas of responsibility given to the market-state, be enhanced. Fragmenting the constitutionally unitary executive branch can scarcely be a positive step in the direction of enhanced presidential authority.

Some areas of responsibility are amenable neither to complete determi-nation by market processes nor to handling by the federal government. These might devolve to the states and localities with the expectation that they will be delegated to associations, NGOs, nonprofit foundations, charities, and the like that operate with the greatest legitimacy at the local level because participation seems more available to local citizens.

The important difference between the devolving federal state and the local state is that the latter can experiment in the market. In some local states genetic research, abortion, and sexual orientation will be largely unregulated; in others, regulations governing these activities will be enforced by market actors licensed by the local state; and in some states the regulations will be enforced by police sanction. What is all too clear, however, is that a federal police presence is far too unwieldy, too nonlocal to handle the single issue most American citizens fault their government over, the issue of crime. If there was any doubt about this, it was settled in the public's mind by the U.S. government's handling of the Branch Davidian case in Waco, Texas, where eighty-one persons, thirteen of them children, died as a consequence of the government's efforts to serve a warrant.
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Nor has the continuing futility of the government's “war” on drug use redeemed its prestige.

The devolution and the licensing of private firms to enforce regulations are troubling in a society that has steadily moved to make its criminal laws nationally uniform and to restrict the legitimate use of force to trained men and women acting under strict official discipline. In this, however, as in much else the United States can more easily adapt to such devolution than other states. Its system of federalism provides a ready structure for devolving power out of Washington; virtually all law enforcement is already a matter of state jurisdiction. Moreover, the Second Amendment to the U.S. Constitution—aptly termed by one distinguished constitutional scholar “the embarrassing second amendment”
³³
for the discomfort it causes persons who are accustomed to supporting both gun control and civil liberties—reflects a fundamental, residual locus of armed force in the people themselves.
³⁴
If, as Martin van Creveld speculates, “the day-to-day burden of defending society from low-intensity conflict will be transferred to the booming security business,”
³⁵
this mixture of devolution and privatization will become commonplace in the market-state. This is a harrowing prospect, but one with which we may have to learn to cope.

We will also have to cope with the increasing willingness of corporations to sell sensitive military technology to potentially dangerous foreign states. American, French, German, and British companies have all done so and, despite the fact that some of them have been exposed and their officers even indicted, these practices are likely to continue. Indeed many companies vigorously lobby their governments to permit these sales, lifting restrictions against technology transfers as a mere concomitant to deregulation and the drive for market share. Nor can the international banking system's critical support for the operations of denationalized terror networks be ignored. The nation-state was poorly situated to cope with this informal, virtual treasury as receipts and disbursements leapfrogged
national regulation. It remains to be seen whether the market-state, with its sensitivity to any costs imposed on transactions by regulation, will do any better.

The emotional fusion between the People and the State begun by the state-nation and reconceptualized in the nation-state was intensified by the Long War. Governments undertook responsibilities in entirely new areas of the social and economic activities of their citizens, and the nation endorsed the actions of the State through a variety of means, including a vastly expanded voting franchise, an institutionalized role for labor unions, and greatly increased taxation. In the market-state, both sides of this reciprocal equation will change: there will be fewer formal mechanisms for endorsement by the public and the State will undertake to do less.
³⁶

Though I shudder to think so, I believe we can expect more reliance on the plebiscite, the initiative, and the referendum, especially as these become so easy and cheap to undertake once interactive cable television becomes universal in the United States. To some extent, we are already living under such a regime. What I have in mind is not the extensive use of referenda at the state level
³⁷
but rather the heavy reliance on frequent polling by American office holders. These are a kind of virtual-reality referenda, allowing the politician to test the results of a proposal. Like aircraft landing simulators, these polls give guidance to the politician without his actually putting himself at risk by calling for a referendum that he would have to support (or oppose),
³⁸
and with the results of which he would then have to live.

At the same time, the market-state does not suffer from the acute shame experienced by the nation-state when the subject of campaign finance is discussed. When Chief Justice Earl Warren wrote that “Congressmen do not represent interests or trees, they represent people,”
³⁹
he was expressing an axiom of the nation-state. Doubtless he believed it, but it would be hard to maintain this view in light of today's functional patronage of candidates by contributors. If there are any readers innocent of this process, it goes like this: campaigns are funded by contributions from persons and groups with interests in the behavior of the candidate if she (or he) is successful. These campaigns are far too expensive to be funded by any candidate personally save the wealthiest individuals, and even these, if they are successful, lose no time in paying themselves back through postcampaign fund-raisers. Politicians of unquestioned rectitude, who would not dream of accepting a bribe—a payment for their personal benefit in exchange for a vote or action on behalf of the payor—have long now accustomed themselves to promising assistance (and sometimes votes) to persons and groups who give them money in the full expectation that the word of the
politician is good. Their very rectitude is, ironically, the door opener to the contributor, because it guarantees the payee will deliver as promised. Whether there is anything wrong with this I am hesitant to say. Shouldn't the right-to-life candidate's campaign be the beneficiary of the funds collected to promote a right-to-life policy? Shouldn't the congressman anxious to alleviate unemployment in his district vote for a public works project there, and isn't such a man a suitable person for local business interests to support? But there persists a disquiet among those who believe the civics lessons of the nation-state, which hold that the votes of the public ought to be the only coin of the political realm. I believe a time will come in the transition from nation-state to market-state in which we will reflect on our current fund-raising practices with revulsion and an amazement that we tolerated them for so long.

But that does not mean that we will replace these practices, which seem so violative of the ethos of the nation-state; it is likelier that we will keep the practices and change the ethos. The market-state is not so squeamish. Indeed,
its
civics lessons hold that there should be no limits on campaign spending from any source so that the true opportunity costs of a candidate's defeat are reflected in the probability of his victory. The market-state merely tries to get the “best” person for the job in the way that universities try to get the “best” students: they set up a market that selects persons on the basis of predictions about their subsequent success. Fund-raising is to governing what SATs and high school grades are to college grades, accurate (if circular) predictors of a later performance that is, in the era of the “permanent campaign,” a repetition of the test itself. Governance becomes a matter of maintaining popularity, which requires further advertising, which requires further fund-raising. The candidate who is tied to important interests by virtue of his fund-raising is precisely the person whose vote will most closely reflect those interests. The more money he raises, the more attractive the candidacy, because successful fund-raising reflects the relationship between the importance of the interests he represents and his ability to represent them (as those interests judge it—and who are better placed to do so than they?). And this is just as well, because initiatives, plebiscites, and referenda are, like all elections, very expensive. The more frequently they come, the greater the match between economic interests and public policy; indeed, this is one of the attractions of the market-state. That this places enormous power in the hands of the media only underscores the change in its constitutional role with the emergence of the market-state.

We can expect an improvement in the quality of the civil service as taxpayers come to demand better performance from government and to appreciate the need for better compensation in order to secure that performance. Like the rise in tuition costs—which is mainly a matter of
responding to the increased expectations of students in the context of fixed faculty productivity—a rise in government costs is almost unavoidable. Government bodies do not make decisions more efficiently, for example, because they have computers any more than professors give better comments on essays because these comments are composed on a word processor. This rise in costs will perhaps be counterbalanced by a narrowing domain of the matters we allocate to government. With respect to those responsibilities that governments of market-states retain, we shall expect better performance.