Old regimes and new

Where do the rules and norms for organizing societies come from? Conceptually, from two directions. They either emerge organically, by trial and error over time, or they come from the minds and hands of a small group of people who think them up and write them down at a particular moment in history.

France exemplified both traditions, one after the other. In the centuries before 1789, the French people produced a monarchy that grew more and more absolute, supported by an aristocracy and a clergy that each had their own intricate sets of rules. This ancien régime derived its credibility from its very age, bolstered by appeals to an interpretation of God that was even older. The system didn't work equally well for everyone, but it worked well enough to have lasted for many centuries.

Then, in 1789, the French decided to make a change. They junked the old system, quite violently, and created a new one. The designers were an evolving set of men, eventually reducing to a single individual, Napoleon Bonaparte, who rewrote the laws that governed nearly all aspects of French life. The Code Napoleon represented one of the most ambitious undertakings in human history, the distillation of social interactions into a single set of rules conceptually divorced from the past. 

Much of the old regime remained, especially in practical aspects of French life. Farmers still farmed. Men and women still got together and had children. They still spoke French and ate baguettes and other things French people had eaten for centuries. But when their activities created problems that had to be resolved, their formal appeals were no longer to precedents generations old but to the new code book. The novel system worked well enough that France still lives under it to a large extent today.

America's break from the past was less violent and less complete. Until 1776 English colonists in North America lived under the laws and norms that had evolved in England over a millennium or so. But America's Continental Congress decided to break with the past and create a new country, or rather thirteen new ones. The states wrote constitutions establishing governments for themselves, and those governments passed laws that provided legal and social frameworks for the activities of their inhabitants. The thirteen states together created a collective government under the Articles of Confederation; when this proved unsatisfactory, they wrote a new Constitution that took effect in 1789. The coincidence with the start of the French Revolution was not accidental; many of the French were inspired by the American example in throwing off the old to create something new.

Yet even in creating their new thing, the Americans consciously imported parts of the old. To maintain continuity in their courts, and to keep their legal training and practices from becoming instantly obsolete, the lawyers who wrote the constitutions and the laws declared the heritage of the English common law still in effect in their new country.

America's volte-face was even more successful than the French. France is currently on its Fifth Republic, after several instances of backsliding; America is on its first, or first and a half counting the Articles of Confederation.

Yet the American system, perhaps more than the French system, demonstrates that what is new becomes old. The American republic is approaching its 250th anniversary. In that quarter millennium, the institutions and practices created at the beginning have become encrusted with experience. We choose our presidents according to the Constitution, but we've added rituals and expectations that are almost as binding as those in the founding charter. Political parties recruit candidates and sift them. Donors screen and fund them. Journalists and pundits rate them. And different kinds of people vote for them than the founders intended. Congress passes laws as the Constitution specifies, but far more of governing is actually carried out by appointed officials of the executive branch than anyone expected in 1789. Federal laws touch individuals more directly and consistently than was the case at the beginning, when the states were presumed to be the principal interface between the people and the government.

A few of the founders recognized that this would happen. Thomas Jefferson thought laws should automatically repeal after twenty years or so. Each generation should be governed by itself, not by generations past. 

TJ’s sunset scheme never caught on, partly because it was too much trouble to rewrite the laws, and partly for the reason he thought it should be done, namely that any status quo tends to ossify with the development of constituencies that benefit from that status quo. Jefferson was a great fan of the French Revolution; he was thrilled by the overthrow of the old regime and didn't want to see a new old regime take its place. Even less did he want one to emerge in America.

But it has. If it doesn't have the faults of the old regime, it has its own. No regime is perfect. Henry Kissinger, the most apt student of history to become America’s secretary of state, understood the situation. On assuming office, Kissinger said, with what from him passed for a twinkle in the eye: “We will not repeat the mistakes of our predecessors. We will make our own mistakes.”