Citizen-Legislators: A Clash Between Ethics and Responsibility

It was recently my pleasure to attend two performances of the musical play, 1776, as produced by the Four County Players, a community theater in the historic village of Barboursville, Virginia (named for nineteenth-century Governor James Barbour).

Despite taking some minor liberties with actual words and events for dramatic effect, the creators of 1776 do an excellent job in telling the story of how 50-odd agitators and activists in Philadelphia came to declare the independence of the United States from the British crown.

Upon reflection, what was striking about these men was how they saw government service as a temporary burden to be suffered gladly (though sometimes not so gladly). They were farmers, shopkeepers, lawyers, publishers, and physicians. People like Thomas Jefferson, John Adams, Benjamin Franklin, and John Hancock served their country for short periods with the aim of returning to their normal lives and livelihoods. Over time they might hold several offices, but never for many consecutive years.

For more than a century, political leaders in the United States held firm to the concept of a "citizen legislature." They agreed with Aristotle’s view that "a principle of liberty is to rule and be ruled in turn." The "Potomac fever" that grips modern-day politicians and keeps them in Washington for decades at a time was unknown until after World War I.

Benjamin Franklin explained that "in free governments, the rulers are the servants, and the people their superiors and sovereigns. For the former, therefore, to return among the latter [is] not to degrade but to promote them." George Mason, the father of the Bill of Rights, warned: "Nothing so strongly impels a man to regard the interests of his constituents as the certainty of returning to the general mass of the people from whence he was taken."

More than a generation later, Andrew Jackson cautioned further:

"There are perhaps few men who can for any great length of time enjoy office and power, without more or less being under the influence of feelings unfavorable to the faithful discharge of their public duties," he said. "Their integrity may be proof against improper considerations immediately addressed to themselves; but they are apt to acquire a habit of looking with indifference upon the public interest, and of tolerating conduct from which an unpracticed man would revolt. Office is considered a species of property; and government, rather as a means of promoting individual interests, than as an instrument created solely for the service of the people."

In Virginia, the tradition of a citizen legislature is long and honored. Mitch Van Yahres, who is retiring from the House of Delegates this year after 12 terms, worked as an arborist in his family’s business while serving as a legislator and member of Charlottesville’s City Council. Rob Bell, who represents the neighboring 58th District, is an attorney in private practice, whose office is in the same building as that of lawyer David Toscano, another former City Councilor and candidate to succeed Van Yahres.

Delegate Ben Cline, who represents the 24th House District (Amherst, Augusta, Rockbridge counties) is a marketing and public relations consultant outside the General Assembly. He wrote earlier this year that "although the process is at times chaotic and always hectic, the concept of a citizen legislature is a sound one. Legislators not only return home after 60 days to live under the laws that we write, we must live and work alongside our friends and neighbors who hold us accountable for the votes we take and the laws we pass."

What brings all this to mind is the recent case of Oklahoma Senator Tom Coburn, who was elected last year after a campaign in which he pledged "to serve no more than two terms in the Senate and to continue to care for patients." (Dr. Coburn is an obstetrician-gynecologist with a practice in his hometown of Muskogee.). In 1994, Coburn ran for the U.S. House of Representatives, promising then to serve no more than three terms, a promise he kept when he retired after the 2000 election.

Senator Coburn faces an obstacle in keeping his recent promises. The Senate Select Committee on Ethics has issued a ruling that forbids him from practicing medicine. As explained by the Washington Post, "For nearly two decades, Senate rules have barred members from holding outside professional jobs, such as those as lawyers, real estate agents and physicians, for fear that such services -- and compensation for those services -- might conflict with their role as policymakers. The Senate panel refused Coburn’s request to grant him a special exception once he closes his business."

This rule, as well-intentioned as it might be, is at odds with the principle that legislators are citizens first, whose term in Congress should merely interrupt their private lives. While it is important to prevent impropriety and corruption, ethics rules should not override larger principles of governance. Ethics should not provide an excuse for the perpetuation of a permanent, professional political class.

Dr. Coburn believes strongly and explicitly in the value of a citizen legislature, one made up of dedicated and talented amateurs who serve their constituents not permanently but well. It is no accident that the title of the book Coburn wrote after he left Congress is Breach of Trust: How Washington Turns Outsiders Into Insiders.

Paul Jacob, a senior fellow at Americans for Limited Government, notes wryly: "Unsurprisingly, those who believe in a permanent, professional legislature can’t grasp Coburn’s notions. To them, politics is the career, the most important career. Nothing higher to aspire to. Anything else is second best."

In other words, as Jacob says, "a total inversion of values."

On specific legislative issues, Tom Coburn disagrees with me as often as not. That’s beside the point, however. Whether liberal, conservative, or libertarian, Congress needs more members who will fight for the principles of proper governance laid down by our Founders. Congress needs more citizen-legislators and fewer full-time, permanent, careerist politicians. Congress needs more Tom Coburns.

(Note: A slightly abbreviated version of this essay appeared in The Free Liberal and in the Augusta Free Press, in both cases on April 13, Thomas Jefferson's birthday.)

Virginia Enters the Twentieth Century

My friends at The Free Liberal were kind enough to publish this piece, written in response to last week's Virginia Supreme Court decision that declared the state's fornication law unconstitutional. The article is also scheduled to appear in The Hook on Thursday, January 20.

Virginia Enters the Twentieth Century
Richard E. Sincere

(Charlottesville) — When the Virginia Supreme Court ruled in the otherwise obscure case of Martin v. Ziherl on January 14, it belatedly brought the Commonwealth into the 20th century.

How so? The court overturned a law dating to the early 19th century, which had not been enforced since 1847, banning sexual relations between two unmarried, consenting adults. It recognized that human beings living in Virginia have a liberty interest in protecting their private relationships from governmental interference.

While the case at hand addressed "fornication" performed by a heterosexual couple, the court made clear that, should a similar case come before it, involving two persons of the same sex and the state’s sodomy law (also known as the "Crimes Against Nature," or CAN, statute), it would overturn that law, too.

The Virginia court relied almost exclusively in its reasoning on the U.S. Supreme Court’s 2003 case, Lawrence v. Texas, which said a Texas law prohibiting sexual relations between persons of the same gender was unconstitutional.

Referring to the earlier federal case, Justice Elizabeth Lacy, writing for the court, stated: " ... this same liberty interest is invoked in this case when two unmarried adults make the choice to engage in the intimate sexual conduct proscribed by Code [Section] 18.2-344. Thus, as in Lawrence, the Commonwealth’s interests do not warrant such encroachment on personal liberty."

In so doing, the court swept away the rationale for a raft of laws that infringe on the rights of individuals – gay or straight, single or married – to engage in private, consensual, sexual conduct. (The ruling does not affect, the court said, "the Commonwealth’s police power regarding regulation of public fornication, prostitution, or other such crimes.")

The General Assembly has, on numerous occasions, considered legislation that would have had the same effect – repealing archaic laws that have no place in a liberty-loving society. Each time the state legislators had an opportunity to modernize the Virginia code’s sections dealing with sexual conduct, they let it pass by. Thus it was up to the state Supreme Court to act.

Lest certain ideologues accuse the court of "judicial activism" and of being out of synch with public opinion, two points are in order:

First, the Court’s opinion was squarely in line with precedent set by the U.S. Supreme Court. Thus, it respected the principle of stare decisis. (According to Bouvier’s Law Dictionary, "stare decisis" means "To abide or adhere to decided cases," adding in explanation, "It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from.")

Second, the Court’s ruling reflects public opinion rather than contradicts it.

In January 2001, Rasmussen Research, an independent polling organization, conducted a statewide survey of Virginia voters to determine knowledge and attitudes about Virginia’s CAN statute and related issues. Among its findings were:

* When asked "Should it be against the law for an unmarried man and an unmarried woman to have sex in the state of Virginia?" 71.1 percent of respondents answered "no", including 67.4 percent of self-identified Republicans (those voters one would most expect to answer "yes.")

* When asked "Should it be against the law for a married couple to have oral sex in the privacy of their own home?" 81.7 percent said "no" (including 78.9 percent of Republicans).

* When asked "Currently, according to Virginia law, it is illegal for consenting adults to have oral sex in the state of Virginia; a proposal has been made to eliminate the Virginia law; should the Virginia law be eliminated?" 65.2 percent answered "yes", including 61.4 percent of Republicans.

General Assembly members have often maintained, off-the-record, that they are wary of changing Virginia’s laws regulating private sexual conduct, because they think they will have hell to pay on election day if they do so. But they have nothing to fear. The Rasmussen poll also asked how voters would cast their ballots for legislators who support repeal of such laws. Overall, 82.9 percent of Virginians said that they would either be more likely to vote for such legislators, or it would have no impact on their vote.

Now, some might argue that a four-year-old opinion survey may not accurately reflect the current attitudes of Virginia voters. That may be true. But it would be up to the naysayers to provide concrete, scientifically valid evidence that proves it wrong.

The court’s decision is cause for celebration by all Virginians, as it has removed one more layer of government intrusiveness from our lives. We are freer today than we were on January 13, unencumbered by unconstitutional laws that strike at the heart of our most personal liberties. At the dawn of the 21st century, Virginia is finally reconciled to the 20th.

* * * * * * * * * * * * * * * * * *

Richard Sincere is author of The Politics of Sentiment. His political and cultural commentary can be found at www.RickSincere.com.



Be sure to visit my CafePress store for gifts and novelty items!
Read my blog on Kindle!