Of Rule by Experts and Rule by Law

 

Photo by Adam Szuscik on Unsplash

In the 1990s I was part of a congressional delegation to Argentina, when the Argentine economy was growing strongly and steadily, and inflation was low, the currency convertible 1-for-1 with the dollar.  Trade barriers were being lowered, commerce was booming.  I recall asking Argentines what could possibly darken what seemed to be a bright future.  They were quick to reply:  “Here in Argentina we have no rule of law.  You can have no confidence in getting justice from the courts.”  Not long after, political shenanigans to reward one part of the electorate by a transfer of wealth from others threw the Argentine economy into turmoil.  Momentary good policy is a tough path to walk across bogs of inadequate legal safeguards.  Freedom has rested upon rule by law rather than rule by men.

Fundamentally, the American Revolution was an assertion of the rule of law.  Most of the Declaration of Independence is a litany of abuse by the English rulers.  The Revolution was intended to take power away from man and men and rest it upon laws and rights, soon to be secured by the world’s first written Constitution.

The Progressive Movement, which thrived over a century ago, was a retreat, aggressively stepping backwards to the rule of men as an impatient alternative to the rule of law:  the Rule of Experts.  Their new view—really a very old view dressed up in modern rhetoric—was that there are benevolent experts, to whom we can safely yield our governance, for such understand the process of modern government better than ordinary people do.

It sounds akin to the ancient theory of Divine Right of Kings, that the worldly monarchs are chosen by God and invested with greater wisdom and perspective than the average man and woman.  To their benevolent expertise and fatherly care was entrusted the governance of the rest of us.

Today’s benevolent experts are invested by their colleagues with varieties of credentials certifying their expertise.  Not very democratic, they make no secret of their impatience with the Congress and other constitutional brakes on arbitrary authority.

Just as not all men are always just, not all men are reliably wise.  The American Founders thought to address this problem by the separation of powers, dividing political authority among three branches in the Federal Government and the States.

The current regulatory program rests heavily on the notion that benevolent experts should be entrusted with authority for the big questions and increasingly smaller questions, too.  It has evolved by progressively engulfing the constitutional separation of powers, merging legislative and executive—and often judicial—authority in “independent” regulatory agencies headed by unelected officials.  The unelected federal regulator writes the details of mandatory regulations, charges violators, assesses guilt, and applies penalties.

Professedly efficient, it does not work well in practice.  First, the regulators are not dispassionate umpires, limited to calling the balls and strikes.  They are also players in the game, having their own set of particular interests and incentives that they take care of first.

Second, reliance on benevolent experts assumes what is an unproven, undemonstrated level of knowledge, insight, and forecasting skills.  Regulators are not dumber than the rest of the population, but they are no smarter either.  It is just that life is too complex and the society of the living is proving too much to be run by any designated group of humans and their computers.

A third flaw is mission creep.  Even if the tasks are too great or require too much knowledge, insight, foresight, and other skills in unachievable degree, the regulators still take them on, with each failure met with calls to increase resources and power of the agency.  

An example is the Federal Reserve (commonly called the “Fed”), created with a specific and rather narrow purpose, to make enough funding available for the banking system in times of financial stress.  Before long, the Fed gained control of monetary policy and the practice of controlling interest rates.  Later, it was tasked with promoting maximum employment.  In 2010 the Fed’s role in supervising banks was enlarged to supervising any financial business considered to be systemically significant.  Each augmentation has drawn the Fed away from its narrow, objective task. 

This expansion of authority affects every business and every home.  The Federal Reserve is the world’s biggest rigger of interest rates.  Its prolonged policy of keeping short-term rates at or slightly above zero has resulted in penalizing all savers and those who live off of their savings, transferring trillions of dollars of wealth to borrowers, the biggest borrower being the Federal Government.

A partial but simple solution toward strengthening the rule of law and reducing exposure to the caprice of men would be returning to elected representatives the making of laws.  It is a messy process, exactly the messy process that the Founders intended to preserve freedom from the encroachment of arbitrary and oppressive government.  The regulators, which are theoretically part of the executive branch, should be limited to the duty of implementing the laws that the elected and accountable representatives make. 

If Congress were required to write the rules and mandates, and delegate only the implementation, the mandates of government would be circumscribed by the exposure of a legislative body held directly accountable for what it has wrought.  It is easy for legislators to complain about bad regulatory decisions, but too often, these are decisions that Congress never should have delegated to regulators in the first place.

Of Religion and Liberty

Photo by Debby Hudson on Unsplash

In recent days the Supreme Court of the United States, in two related decisions, gave a welcome reaffirmation of the constitutional protection of the free exercise of religion.  The cases involved practical application of the principle First Amendment right.  One case, Little Sisters of the Poor v. Pennsylvania, involved the Obamacare Act and contraceptive insurance coverage.  The other, Our Lady of Guadalupe School v. Morrissey-Berru, concerned religious schools and their employment policies.  Both cases were decided by strong 7-2 votes. 

Readers will look to other forums and formats for the specifics of these interesting decisions.  I raise them as noteworthy inasmuch as governments in the last few months have acted unkindly toward religion and its exercise, much to the harm of people and the  jeopardy of their other rights protected in the First Amendment.

Not only is freedom of religion and the exercise thereof found in the First Amendment to the Constitution, it is the first freedom mentioned.  Free speech, freedom of the press, freedom peaceably to assemble, and the right to petition the government follow next, in that order.  This is not necessarily a ranking of importance of these five freedoms.  All are essential, but I would suggest that the latter four are strengthened by freedom of religion and will be put at risk without a vigorous regard for that freedom.

This is not hypothetical.  As an experiment to deal with the unknown effects of the coronavirus (SARS-CoV-2) many state governments (and the federal government to a lesser degree) engaged in an abrupt and progressive impairment of the constitutional rights of nearly all within their jurisdiction.  Of the five freedoms of the First Amendment, governments applied or tolerated the harshest limitations on religion and its practice.  Churches were closed, its members forbidden to meet together, even in small groups.  Administrations of religious rites considered sacred were blocked, even in application to the dying as well as the living.

In my congregation, in my church, we gather, we fellowship with one another, we sing together, we pray together, we teach each other, we provide service to one another, we follow the pattern of what Jesus Christ did and calls upon us to do in the practice of becoming kinder, more loving people.  Government restrictions have made that very hard to do, and are unable to replace it with anything.

One of the leaders of the church, David A. Bednar, an Apostle of The Church of Jesus Christ of Latter-day Saints, lately said this in remarks on the importance of religious practice:

Latter-day Saints are hardly alone in this need to gather. . . Our Catholic, Orthodox, Protestant, and Evangelical friends gather for mass, baptisms, confirmations, sermons, and myriad other religious purposes.  Our Jewish friends gather for worship in their synagogues.  Our Muslim friends gather in their mosques.  Our friends in the Buddhist, Sikh, and other faith traditions likewise have sacred places to gather and worship together.

And because gathering lies at the very heart of religion, the right to gather lies at the very heart of religious freedom.

In the United States and elsewhere, in this experiment into which we were rapidly immersed, people “throughout the free world,” as David Bednar reminded, “learned firsthand what it means for government to directly prohibit the free exercise of religion.”

Science, including the science of self government, requires us to learn from our experiments.  What have we seen in the social laboratory within which we have been living?  While freedom of religion has been curtailed, other liberties have eroded.  Freedom of speech has been restricted; people have become very careful about speaking their minds, avoiding certain words, even limiting their associations with neighbors, and they do not like it.  Communication even on social media has been censored. 

Press freedom is no longer robust.  Media broadcasters are careful to avoid use of newly minted proscriptions of this or that phrase or word, with correspondents and announcers disappearing from their jobs almost overnight for violation of some new taboo.  People have become increasingly mistrustful of “the news.”

Many assemblies are prohibited.  Where allowed, numerical limits have been imposed on how many people can assemble in the same place.  More nettlesome, as is the usual case with the violation of rights, restrictions are applied and enforced unevenly, some favored and others not.

Governments, especially local governments, turn deaf ears to constituents raising concerns with the application of restrictions.  Arrangements for schools run by local governments are in confusion. 

Overall, people feel isolated, alone, helpless, and, for too many, hopeless.  They look for and find temporary relief in acts of rebellion, minor or otherwise.

This is where freedom of religion can be seen as important to the other freedoms.  Churches have often in western societies been a counterweight to government tyranny, which is why the governments of Europe tried for centuries to control them.  As the Red Army imposed its Iron Curtain across Eastern Europe, persecution and control of religion were a priority. 

The first amendment prohibits government control of religion, specifically to preserve freedom of the churches, which in America has also worked to accommodate variety of religious practice.  All of the churches, together, need the first amendment to thrive, as do their members.  No other human organizations are as organized, enduring, and meaningful to people.  Without vigorous, free religions, people are left alone to defend their other rights, with alternative organizations that at best are anemic by comparison.

In the words of David Bednar, “With goodwill and a little creativity, ways can almost always be found to fulfill both society’s needs and the imperative to protect religious freedom. . . . Never again can we allow government officials to treat the exercise of religion as simply nonessential.”

Of the Meaning of “Still” and the State of the Union

Notice how frequently these days when discussing the state of the American union, or any parts thereof, people rely upon the word “still.”  That is a bad sign.  When someone says, “I am still able to see my own doctor,” he or she implies that continued access is in doubt.  Rather than reassuring, it insinuates caution and reveals anxiety.  What do you hear when someone says, “At least I am still married”?

You do not commonly hear people using “still” in connection with things that they are sure of.  If a baseball player boasts, “I can still hit the ball out of the park,” is he likely to be in his prime or in the twilight of his career?

Allow me to offer for your consideration a dozen recent objects of STILL in public discourse about the condition of the nation:

·         The United States is still the largest economy in the world.

·         The United States still has the strongest/best military in the world.

·         The dollar is still the world’s reserve currency.

·         The United States still is a free country.

·         America still is the land of opportunity.

·         The Supreme Court still can be counted on to defend the Constitution.

·         By hard work and best effort you still can become anything you want.

·         My children will still have a better life than I have had.

·         My children will still live in a bigger house than the one I grew up in.

·         In this country you can still get the best healthcare.

·         America still has the deepest, most liquid, and efficient financial markets.

·         At least the air you breathe is still free.

Undoubtedly, you can think of more for the list.  Then, there are some things we do not hear people saying “still” about any more:

·         America is the best place to get an education.

·         Americans make the best cars.

·         I can freely speak my mind.

·         I can trust what I hear or read in the “news.”

·         You can count on the elections not being rigged.

I forbear going on.  You can add more if you wish.  There are some topics where the doubt is too palpable for people to venture “still” in their expressions.

If we leave the discussion at that, then we have a sad commentary on the sad state of the union.  The expression of “still” in our conversation can reveal a desperate clinging to the past with a forlorn wish that things will work out for the future, without doing the good works to make the good future happen.

I would suggest, though, that “still” can also mean “not over,” or “not gone.”  We need not settle for “still” and do nothing about it.  That which we value can be reclaimed from assault and reinforced, the erosion stopped, the tide turned.  After all, John Paul Jones is famous for winning a naval battle from the deck of his sinking—but still afloat—flagship, because he used it as a platform from which to regain what was lost.  “I have not yet begun to fight!” is still part of the American heritage.

Of the Constitution and the Ever-Fresh Idea of Freedom

It seems that the days of trial and testing of our Constitution are not over.  Perhaps they never will be until the Author of the Constitution returns to the earth.  The Obamacare statutes unfold as the time approaches when people will be required to buy government-designed health insurance whether they want it or not.  The Environmental Protection Agency continues to impose on industry rules that Congress refused to pass.  The new financial consumer czar, with no meaningful oversight or accountability, exercises his will to design financial services for all Americans, even though he was put in office by a recess appointment made when the Senate was not in recess (skipping the uncomfortable Senate confirmation process).  There is more, but these examples represent the challenge.

Under the inspiration of God, the Founders established the Constitution to protect, preserve, and indeed promote the rights of all to life, liberty, and the pursuit of happiness.  That is the legitimate purpose of government, as the Founders inscribed in the Declaration of Independence, considering it self-evident,

That to secure these Rights, Governments are instituted among Men, deriving their just powers from the Consent of the Governed,

that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

In this effort the Founders twice abolished and instituted new basic forms of government.  The first was to throw off their allegiance to the Crown of England and control by his Parliament.  The second was to exchange the loose and ineffective Articles of Confederation with the new Constitution.

The Constitution was and remains a revolutionary document.  With footings based solidly on the indestructible rights and worth of the individual members of the society, it was unlike anything anywhere on the earth at the time.  At the core of the Constitution, and affecting all of its members, are the overriding and animating principles of life, liberty, and the pursuit of happiness, constantly at war with and destructive of all forms of tyranny. 

Among the first fruits of the Constitution was the Bill of Rights, the first 10 amendments, all so wholly consistent with the Constitution that the only objection raised to them was that they were redundant to the basic text that they amended.  Maybe they were redundant, but time has proven the wisdom of spelling out these powerful and important rights of the individual.

They were soon challenged.  Once in government it is natural and expected that government leaders would become progressively intolerant of criticism and opposition.  Government “of the people” does not make government automatically friendly to the people and tolerant of their freedoms.  We see it today, every day.  In 1798 the Federalist Party leaders in government passed the Alien and Sedition Acts, inimical to the Constitution, in significant part to silence opposition voices from the new Democratic-Republican Party.  The Acts sought to declare criticism of public figures to be libelous, punishable by fines and imprisonment.  Under these unconstitutional statutes newspapermen were arrested and their newspapers stopped, among other outrages to liberty.    

Fortunately, the Constitution was not impotent to throw off this new effort to impose an old tyranny on the nation.  Thomas Jefferson led a popular revolt through the elections of 1800 to expel the Federalists from office, repeal these statutes, and launch a renewed spirit of governing focused on individual rights and liberties.

In succeeding years the inconsistency of human slavery with the principles of the Constitution grew increasingly acute, until in 1861 the leadership of most of the slave-holding states concluded that it would be impossible to maintain their “peculiar institution” if they remained governed by the Constitution.  They understood that they could maintain slavery or observe the Constitution, but not both.  Eventually, the spirit of freedom at the core of the Constitution would work to end slavery, by operation of the very constitutional system. 

Since the Union created by the Constitution would not allow the states to leave peacefully and take their slaves with them, the southern leadership invoked rebellion as the only way out.  Theirs, however, was a rebellion to invoke and support tyranny, and it failed.  The revolutionary American Constitution and the people on whom it rested won yet one more victory for freedom.  As Abraham Lincoln perceived, the war of the rebellion was a test of “whether that nation, or any nation so conceived and so dedicated, can long endure.”

That nation, conceived in constitutional liberty, did endure that test, but the tests never end.  There are ever those who believe that they have the privilege, the calling, the right, or even the duty, to impose their will and judgment on others in ways destructive of life, liberty, and the pursuit of happiness. 

Not every assault on freedom and the Constitution fails. There have been too many that have succeeded.  So far the Constitution and the people who uphold it have withstood these assaults, even if at great cost.  The Supreme Court’s outrageous Dred Scott decision and the foolish Kansas-Nebraska Act were last gasp efforts to perpetuate the tyranny of slavery, but in the end they sparked the birth of the Republican Party and fed the Civil War that removed slavery and extended the reach of the principles of the Declaration and Constitution.

Today as a nation we face the sputtering final efforts of the Franklin Roosevelt legacy to enthrone government as the source of solution to people’s problems—and to buy popularity with government-laundered largesse confiscated from a dwindling pool of taxpayers.  That is a hoary practice of kings and Caesars that buys time but no lasting success.  The money always runs out before the promises do. 

The question that remains for us and for our Constitution is how well will we as a people, and our Constitution as a system of government, weather the demise of the New Deal system.  Acute test of freedom approaches again, if not already here, when we will determine whether our “nation so conceived and so dedicated, can long endure.”  I have confidence that it will, and—in the words of Lincoln—that the American people will decide “that this nation, under God, shall have a new birth of freedom,” as it has in all of its greatest tests so far.

Of Government and Getting What We Deserve

There is a theory that I believe but I am not sure how to prove (this side of the final judgment) that over time people tend to get the government that they deserve.  This idea comes to mind when I hear complaints in the public media about the Congress.  You have certainly heard them.  They come in various flavors, but they are the same soda:

• Why can the Congress get nothing done?

• Congress is unable to rise above partisan politics.

• The people in Congress seem so out of touch with the rest of America.

• Congress avoids making tough decisions.

You could surely add to this list.  The underlying theme is that the Congress is not doing its job.

These comments are a frustrating alloy of truth and silliness.  There is a lot that is right and wrong with the current Congress.  Who put these men and women on Capitol Hill?  With the exception of a handful of Senators appointed by their governors to fill temporary vacancies, and the few dozen congressmen who by order of the Supreme Court must be elected in districts where there really is no democracy (I refer to those from districts mandated by the courts to provide only minority representation), all of these congressmen and Senators were elected—by the people whom they represent.

I mention that to refer to both sides of the coin.  We, the people, put those people there.  The other side is, we the people can send them home.  That is a weighty responsibility, one that we cannot discharge faithfully by just complaining.  We cannot do our legislators’ jobs for them and be involved in all of the minor details of all that they do, but we can and must hold them accountable for the sum of what they do and for the general tone and direction of their actions.  To be successful we need to have a clear idea of what we want our representatives to do and be well educated about what they are doing—not just what they are saying.

One of the sillier comments I hear is the suggestion that we should “throw them all out.”  Is that true?  Is every single congressman and Senator doing a bad job?  Even a basic review of congressional action should tell us that is not the case.  On nearly all of the most important issues there is in fact quite a divergence of views and actions.  Again, our inescapable job is to figure out what is the right policy and look carefully at how our elected representatives are conducting themselves with regard to it.  We should weed the garden, not plow it under.

There are many policies and many issues from which to choose.  Let me suggest two.  The first would be the Constitution.  What have been the actions of our own particular representatives with regard to supporting and defending the Constitution and the rule of law?  Our current President has been active in undermining the Constitution and disregarding the rule of law, so this is not a theoretical issue.  What have our representatives been doing to combat voter fraud, to make sure that the executive branch does not spend money that has not been appropriated by Congress, or to prevent bureaucrats from telling law abiding people how to spend their money, run their businesses, freely express their opinions, or observe their religion?  There have been many other assaults on the Constitution by people in Washington.  As voters, we should be mighty touchy about any of those efforts and reluctant to vote for people who do not share our sensitivity about the importance of the Constitution and our rights as citizens.

The second issue I would suggest is economic growth.  We will never really get out of this recession (that feels depressingly like the 1930s) unless we place a top priority on getting the economy growing.  We cannot solve our budget deficit and federal debt problems without economic growth.  People forget that the few years that we had a balanced budget in the 1990s did not come by government action.  Congress and President were in fact surprised by the surpluses.  They came about because the economy grew more strongly than expected.  We should support those legislators who act like they understand that economic growth creates jobs and that economic growth is created by private initiative.  We should support those legislators who consistently vote to remove barriers to business creation and innovation and defeat those who do not.  Those barriers include higher taxes and increasing government involvement in business decisions and operations.

All of this will take work on our part.  We cannot expect to have legislators who work for what is right and wise unless we do our work to find and support those who do.  There are many of them in the House of Representatives and in the Senate today.  We need more of them.

I believe that people eventually get the government that they deserve, and I yet believe that we deserve better than we have and that the time has come to get better.

Of Lawlessness and the Constitution of the United States

Trivia question for the day:  What is the smallest national legislature in the world?  If you answered, the Supreme Court of the United States of America, give yourself 25 points and a chance at the bonus question:  What is the highest law of the land?  If you answered, the Constitution of the United States of America, subtract 50 points from your score and shake hands with the moderator as you leave the contest in polite and condescending disgrace.

If you are a student of the history of the United States, particularly of its founding, and if you are in addition a constitutional scholar, including some experience reading the writings of the writers of the Constitution, you can take some solace in knowing that your second answer used to be right.  It was right for most of the first 100 years of the history of the United States, and remained right for another 50 years or so after that, although things were already changing in the late 1800s.

In the latter part of the 1800s the Progressive movement, and its fellow travelers the Positivist legal scholars, asserted its voice in America with the notion that law was not at all really connected to natural law as the Founders believed and intended.  In the Progressive/Positivist view, law was whatever lawmakers wanted it to be, and that extended to how the Constitution was to be interpreted.  The Constitution was a collection of written words, words whose meanings were to be interpreted by the new supreme legislature, the Supreme Court, to accommodate the Progressive/Positivist agenda.

The whole idea of a constitution is that there are some fundamental, basic laws that do not change, or that change only by the specific decision and action of super majorities of the population (super majorities to ensure that the rights of minorities are safeguarded).  To preserve their integrity those fundamental laws are written down and taught and embraced from generation to generation.  In the United States, it was on the basis of written constitutions that our nation came together, first the Articles of Confederation, and later the Constitution.

The Constitution of the United States begins with the words, “We the People”.  All of these were new, exceptional ideas.  The approach at the time in the rest of the world was, “You the People”, with a despot, monarch, or some small group of people governing the rest of the population.  In America things were different, and the Founders sought to enshrine and perpetuate that difference within strong bands of a written constitution and the division of governmental power prescribed  and preserved by the Constitution.

It does not seem so different or exceptional anymore.  It seems that today the law, constitutional or otherwise, can be changed or written by five out of nine unelected people in black robes issuing their decrees from a Greek temple in Washington, D.C.  The rest of the 313 million who make up We the People have no more say about it.  That is tolerable, and even desirable if these nine, or the five of the nine, limit themselves to enforcing the laws and Constitution that the people themselves have established through constitutional process.  It becomes intolerable when they just make it up, as they have been increasingly doing since the 1930s.  That is not law.  It is tyrannical lawlessness.

This is very real to the 313 million who are expected to follow the dictates of this tiny legislature.  Under the influence of the lawless behavior of the members of the Supreme Court and their failure to uphold the Constitution, lawlessness and lack of respect for the Constitution are spreading throughout the American system of government.  In very recent years we have witnessed a narrow majority in the Congress, violating its own procedures, pass legislation that obviously violated the Constitution. The executive branch, suspected by the nation’s Founders as ever prone to plans to oppress the people, has exerted an increasingly cavalier attitude toward the Constitution.

These lawless acts themselves are not trivial.  They were explicitly designed to restrict the freedoms of the people, whether with regard to their healthcare choices, how they conduct their financial affairs, or how they find, develop, and use energy—all pretty fundamental to the way that the people live their daily lives.  Under the rule of law we would look to the courts (among other places) to uphold the law and turn back unconstitutional and thus lawless efforts to take away the rights of the people.  Too often lately we look to the courts in vain.  It is far from a sure thing these days that the Court will come to the rescue of the Constitution and the freedoms it was written to protect, witness the suspense that precedes each new decision.

The recent Obamacare decision is the latest and most painful insult to “We the People” yet to come from the Supreme Legislature.  For now, the Five have said that the Commerce Clause of the Constitution cannot be used to force Americans to buy health insurance.  No need.  The Five decided that the taxing authority can be used to force people to do whatever our leaders in Washington want us to do—although they failed to indicate which taxing authority was used. 

The Founders were chary with the taxing authority that they extended to Washington, putting strong walls and tight rules around its exercise.  Remember, it took an amendment to the Constitution to allow an income tax.  Obamacare is not an income tax, or any of the other constitutionally allowed taxes.  Yet a tax it is, now decreed by the five of the nine Justices, that can be applied to anyone—and the anyone is mostly younger adults—who choose in the future not to buy health insurance.  The Five did not say what we might next be forced by taxes to do:  that is just a blank that they have left for people in Washington to fill.

In the days when the Constitution was the highest law of the land one of its great defenders, Daniel Webster, declared in a pleading before the Supreme Court that, “The power to tax is the power to destroy.”  The Chief Justice of that Court, John Marshall, quoted and enshrined that thought in his ruling, McCulloch v. Maryland.  Today that power is now available, at the will of the Five, to destroy the freedoms of the people, freedoms that the Constitution and the earliest Courts served to protect.