Rule of Law
I have recently read Francis Fukuyama’s two volume history of governance, covering the last 5,000 years of our history as a species (The Origins of Political Order and Political Order and Political Decay). Tough slog; very dense material. I had to read the first volume twice. The second volume was easier, because I had grasped his framework and was more familiar with the history he was interpreting. I learned more about the nature of governance in those 1,100 pages than in 4 years as a Poly Sci major and a year of graduate school.
To GROSSLY simplify his thesis, he posits that our aim should be government that has three essentials:
- Rule of law
- Consent of the governed
- A professional, non-partisan bureaucracy
The United States of America managed to approximate this condition by the early part of the 20th century. We had a basic law (the Constitution of 1789), which had endured for over a century. Many of our local elections were rigged, but national elections, despite some local irregularities, seem to have accurately reflected the will of the people who bothered to show up at polling places. And, thanks to civil service reforms, we had mostly professional bureaucrats at the national level, in almost all states, and in many cities. At the Federal level, we had a popularly elected legislature to compromise its way to laws that could be challenged as to their conformity with the Constitution. We had a chief executive to implement the legislation; judges to apply the law to specific cases; and bureaucrats to implement the policy. In my view, we are in the process of throwing away these blessings.
I’ll add, in passing, that you may regard the last national election as an exception, due to interference by the Russians. As yet, we have no proof that any votes were changed as a result, much less enough votes to have changed the outcome in any of the states which provided Trump his margin of victory. My guess is that we will eventually find that Russian gangsters, maybe at Putin’s direction, but certainly in search of his favor and protection, hacked parts of the electoral process. My guess is that their aim was to heap scorn on the American system of democracy, to cast doubts about its efficacy. If that was the aim, they succeeded spectacularly.
A good many politicians on the left side of the political spectrum, and their enablers in the judiciary, regard the Constitution as “living” document. Meaning that the writings of the Founding Fathers (aristocrats all, and slaveholders among them) are irrelevant for current circumstances and current sensibilities. This view goes all the way back to Woodrow Wilson, the co-father along with Theodore Roosevelt, of the Progressive movement, who openly referred to the Constitution as obsolete, and an impediment to modern government. The Founding Fathers did not regard their work as eternal and provided for amendments. The problem for living document proponents is that the changes they want could not glean the required votes–2/3 of Congress and 3/5 of the state legislatures. Easier to shop for judge who will do the work.
President Trump’s executive order about entry into our country by residents of six Middle East countries is a shining example. Existing law is very clear. The law in question has stood the test of time and judicial scrutiny as to its constitutionality. It has been invoked by several occupants of the Oval Office. The President may prevent entry into the country of any group he feels is a threat–national security, epidemic disease, etc. Trump’s first effort was sloppily drawn, full of legal defects. The ACLU was able to venue shop it in a heartbeat. The second order was drawn with an eye to addressing the defects. The latest round of judicial response had been, in effect, to say that the words appear to be legal, but we know what is in the President’s evil heart. His campaign rhetoric was repugnant, so the order is illegal. If that is rule of law, I misunderstand the term.
My second shining example would be CFPB (The Bureau of Elizabeth Warren). However laudable its purpose (and there are certainly some fraudsters in the financial sector), the organization is extralegal. Its budget is not set by Congress, and it is not subject to congressional oversight. The only control the President has is appointment of a director for a fixed term who, as a practical matter, is very difficult to remove. This sort of unchecked power, along with the agency’s ideological preferences, led to a jihad against car dealers for allegedly discriminatory lending practices. The discrimination was established by using surnames and zip codes (since it is illegal to record race on a loan application) to determine which borrowers were black, brown or white. That system was found be wildly inaccurate when challenged in court. Too bad. If I had a loan on one of our cars, I could have got a rebate.
A much bigger problem is executive orders. The Constitution says ALL laws are to be created by the legislature. The President’s job is to administer the laws, not make them. The original intent of the practice of issuing executive orders was to clean up minor problems in order to avoid the cumbersome process of amending legislation. That pretense is long gone. Many executive orders are de-facto legislation. The problem is that they can be undone by the next President. They resemble royal decrees that can be overturned by the next king. The mortal danger of that system is that succession becomes a matter of life and death. The identity of the next king, and the judges he appoints to affirm his orders, takes on huge significance. Of such conflict are civil wars made. Without rule of law, consent of the governed takes on some ugly ramifications. The current king will not leave because he fears the next king will jail or kill him.
Finally, we have the corruption of the bureaucracy. Congress has contributed to the problem by abdicating its legislative duties. The legislation it passes is often an explicit invitation to bureaucrats to write rules and regulations that have the force of law. All done with virtually no transparency. Lobbyists and special interest groups wallow in the process, but the public is seldom involved, or even aware of what is going on. Some ideologically inclined bureaucracies have taken full advantage of their new powers. For example, the EPA works the system to a fair thee well. One EPA administrator was caught using a back channel email account to communicate with activists, and had to quietly fade into the sunset, paying zero price for clearly illegal activity. EPA personnel attend conferences with environmental activists. They reach nodding agreement on a policy to be implemented or species to be protected or mine to be shut down. The activists then file suit in a friendly court to compel the desired outcome. After some modest legal posturing, a “settlement” is reached and we quietly sing Kumbia.
The presidency of Donald Trump should be a wakeup call to the entire political spectrum. Progressive presidents and bureaucrats may be effective at moving us toward a Progressive paradise by means of orders and regulations and settlements, but the next monarch can tear it all apart. Laws should be passed by Congress, not agencies. The solution to any obsolete section of the Constitution should be to seek support for an Amendment. Executive Orders are out of order. Any bureaucrat engaged in political behavior or ideological advocacy should be fired. Lois Learner ought to go to jail, not because she was a Democratic partisan, but because she was a partisan on the civil service payroll. Public sector unions should not be allowed to contribute to political campaigns or political parties.
The final chapter of Fukuyama’s history warns us that it is very hard to get to good governance and very easy to piss it away. I believe we are in danger of doing that very thing. Rule of law is a jewel worth hoarding.
