The American ideal is that we are “a nation of laws, not of men,” as John Adams put it. The unpleasant reality is that the ruling class of any society – including ours – obeys only the laws it chooses to obey. Understanding this reality is essential to making progress toward the ideal.
The population of a country can persuade its ruling class to “choose to obey” its laws through various means, and not even the absolute monarchs of ancient times could casually disregard all of them. Even the more deranged emperors and “sun kings” had to take some steps to avoid antagonizing their entire aristocracy, and the aristocracy had some limits to the abuse it could impose on its citizens. Our modern democracy expects much greater respect for the law, and the rights of its citizens – but our ruling class continues to routinely disregard laws it finds inconvenient, and we have very limited means to compel their obedience.
Of course, there is always the punishment we can administer at the ballot box, but this is precisely what I mean by “limited means.” The rate of re-election for the House of Representatives hovers around 95%, and rarely drops below 90% . Senators enjoy high re-election rates as well, with the worst years of the modern era barely dipping below 80%. The most fabulously corrupt members of Congress have been there for decades. Jack Murtha has been doing his Jabba the Hutt routine in the House since 1974. William “Cold Cash” Jefferson served nine terms, and managed to get re-elected after the FBI raided his offices in 2006. The authors of the subprime disaster, Barney Frank and Chris Dodd, have been in office since the early 1980s, and both survived the financial meltdown of 2008, although Dodd’s future isn’t looking terribly rosy at the moment.
Electoral punishment isn’t much of a deterrent to lawlessness, because there are so many factors contributing to elections. Long-term congressional incumbents have little reason to fear that their power base will suddenly decide unethical behavior outweighs the huge amount of federal pork they bring home to their districts. You have probably heard the supporters of at least one corrupt politician defend them in precisely these terms. During the Clinton impeachment saga, we were repeatedly told that it would be primitive and narrow-minded of us to deprive the nation of Bill Clinton’s magnificent leadership because of a squalid little perjury, committed in the course of covering up a silly little sexual indiscretion.
Personal corruption is not the worst aspect of elite disregard for the law. The growth of the modern super-state has been assisted by the State’s increasing appetite for circumventing or disregarding legal restrictions on its power, most obviously the Constitution. Things have degenerated to the point where no one even bothers asking how President Obama’s trillion-dollar “stimulus” plans, nationalized health insurance, or industrial takeovers can be justified under the Constitution – which is not just a dead letter, but a ghostly outline in the dust where a dead letter used to be. When Texas governor Rick Perry spoke of invoking the Tenth Amendment to resist Obama’s federal power grabs, he was dismissed by the media as a hopeless eccentric, as is the Tea Party protest movement. The media very much sees itself as part of the ruling class, and they regard the notion of restraining government “progress” with antiquated laws, written by dead white males in powdered wigs, as ridiculous. Even when the State does find itself on uncomfortable legal terrain, it can always find a more agreeable climate in the penumbras and emanations of the Constitution. The Left has been describing the Constitution as a “living document” for many years, and all living things can be taught to perform tricks.
The entire process of crafting legislation reeks of lawlessness these days. How else to describe the spectacle of congressional representatives voting on legislation that isn’t fully written out yet, when they’ve scarcely bothered to read what little has been committed to paper? How else to describe an elite that designs vast, intrusive programs they have no intention of applying to themselves? The power of the modern government is limited only by the amount of popular support it can generate – or, more accurately, by how much it can control anger and resistance from its opponents. Public opinion polls now carry far more weight than Constitutional law, and with the support of the media, 60% approval is a license to do virtually anything.
A government that is not restrained by clear and unbreakable laws is both immoral and inefficient. How much time and money has been wasted debating, and defeating, Obama’s ridiculous health care proposal? If our republic paid proper respect to the wording and intent of its Constitution, this entire farce would have never gotten past the discussion stages, and we could be much closer to enacting truly meaningful and effective reforms that show proper respect to the freedom of our citizens and marketplace.
At some point, perhaps beginning in 2010, conservatives will have their chance to begin undoing the damage of the lawless socialism that has been engulfing the country for decades, and which has reached the point of absurdity under the current Administration. When that moment arrives, we should be realistic about the relationship between law and government. We often indulge in an idealistic belief that we can correct our government’s flaws by simply insisting on obedience to the Constitution. While this is a fine principle, it requires firm and specific laws to implement it. These laws should target the basic mechanisms that lead to government excess, nipping socialism in the bud by depriving it of the building blocks it requires. We will never have Robocop stalking the halls of Congress with the Bill of Rights flashing across his visor, switching into arrest mode at the first sign of Constitutional violations. If we accept that we will always have limited means to punish elected officials for abuse, then we can see that our efforts should be directed toward preventing them from committing the abuses in the first place.
It’s interesting to note that virtually the only restraint on government power to survive the last few decades intact is the two-term limit on the presidency, imposed through the 22nd Amendment in 1951. It is a simple law that has no penumbras or emanations, and the public would be outraged by any attempt to disregard it. Of course, like any law, it could be changed – and there are people who wish to repeal the 22nd Amendment – but changing a law is vastly more difficult than ignoring it, particularly when dealing with amendments to the Constitution. Equally strong term limits for Congress would go a long way toward draining the Washington cesspool, making individual politicians less attractive targets for graft, and preventing them from accumulating decades of power to insulate themselves from the consequences of their actions. In a similar vein, dramatic tax reform is the only reliable means of preventing Washington from believing it can appropriate unlimited funds to indulge its grand designs.
These reforms will not be easy to implement. They will require support from bold and principled leaders, who can make the public understand that government can only be controlled by limiting the tools it has to work with. If we continue to place our faith in elaborate laws and electoral consequences to manage what politicians do with those tools, we’ll keep ending up where we are now… for we will always be governed by a ruling class of lawyers who are very good at getting re-elected.