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Democratic Party Annoyances: The Constitution, The Rule of Law, and Other Liabilities

It all started off so well!  The government was tiny, generally well behaved, and didn’t leave messes around the house.  It was focused on those things everyone could agree on like making sure we could defend the country if the need arose, ensuring there was a uniform system of justice for all, and generally protecting the rights of citizens as expressed in the Bill of Rights.  For a long time, it continued, with a few digressions to do what we asked it to do, but somewhere along the line, things took a bad turn.

One of the digressions occurred early in our Republic with the Whiskey Rebellion.  Farmers of western Pennsylvania, tired of the high cost of transporting corn to the markets in eastern Pennsylvania, turned to producing whiskey from their corn – a much more condensed and higher value product.

The federal government acting under direction of the Secretary of the Treasury Alexander Hamilton, imposed an excise tax on whiskey – the first levied on a domestic product.  The tax discriminated against the small producers in the west, leading them to protest its unfairness.  This was also the first time the government attempted a form of social engineering by imposing a “sin tax” on a product considered harmful.  The rebellion grew to the point that George Washington, president at the time, had to use Federal troops to suppress it.  This set an early, and not necessarily good precedent.

There were a few other significant bumps along the road.  About seventy years after the formation of our Republic and adoption of its Constitution, some of the states decided they wanted out.  It was assumed that our union was a voluntary association, so they expected no problem leaving – sort of a no-fault divorce.  Unfortunately for everyone, the government had other ideas.  Four years and 620,000 casualties later, the issue was decided – better for the kids to stay together.

A weed of an idea

A few people, though, got the idea that the government had a lot of concentrated power, although most had little idea of what to do with it, or even if it should be used in any circumstances outside of an emergency.  They didn’t yet have the idea of never letting a good crisis go to waste.

The country spent most of the next forty years putting itself back together and expanding into newly acquired territory.  On the whole, it was a time of great opportunity, unrivaled personal freedom, and prosperity.  It was not to last.

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The balance of power

The situation was still fluid.  There wasn’t much opportunity to expand the scope of government, nor was there any particular interest.  By and large, people had better things to do with their time, and by moving into the western territories, many were already voting with their feet, so there wasn’t much point anyway.  What good is power if you don’t have a captive audience for it?

Congress was still writing its own bills, actually debating them to  evaluate their merits, and without a major bureaucracy, there was no-one to implement any significant regulations anyway.  The Federal government largely depended on the state and local governments to provide whatever was needed by way of government operations.  They didn’t even have much in the way of taxes, so the power of the purse was virtually non-existent.  The Constitution was secure and respected as a good and sufficient basis for our nation, with a nice balance of power between individual citizens, states, and a limited federal government.

A worm in the apple

Behind the scenes, though, all was not well.  The prosperity resulting from the westward expansion was followed around the turn of the century by a major economic collapse that gave us the music of Ragtime, and later the story behind the movie “Cinderella Man“.

Not only were times difficult in the US, but the rest of the world was in turmoil as well.  WWI started in 1914, although tensions had been building in the Balkans since as early as the 1870s.  In late 1917 came the October Revolution with the Communist overthrow of the Russian Czars.   Among the intellectual communities was the feeling that democracy and capitalism had outlived their usefulness, and that Communism, Socialism, or some other form of centralized planning and control was necessary to address the complexities of modern societies and their governance.

An elitist in the White House

On the home front, in 1912 we elected Woodrow Wilson as the 28th president.  A staunch Progressive Democrat, he grew up in the South during the American Civil War, and served as the president of Princeton University before his election.  As a Political Science PhD, he was well versed in the political theories of the time.

During his term, he was responsible for the Federal Reserve Act, as well as the Revenue Act of 1913 that created the income tax system we enjoy to this day.  He also was responsible for expansion of the federal bureaucracy, believing that modern society was too complex for ordinary people to properly manage.  He was instrumental in founding the predecessor to today’s United Nations.  Strongly racist as most Democrats of his day were, he segregated the federal civil service, believing that blacks were incompetent.  His actions served to severely damage the progress blacks had been making for the previous fifty years since the Civil War.

A fundamental transformation

It was largely during the presidency of Wilson, that the philosophy of our government began to change from that of an institution that existed to serve and protect the citizenry, to one that managed and controlled the people.  Believing that government was too complex to be understood by the common man, and that it should be beneficially managed by people who had thoroughly studied the relevant disciplines and who were experts in their fields, his empowerment  of a federal bureaucracy was a first step in the transformation

The second step was the expansion of delegated authority. The original idea behind delegation was that Congress was too occupied with important matters like getting re-elected to bother with filling in the details of the laws they passed.  That task was conveniently delegated to the new bureaucracies who were supposedly to stay within the limits of the Congressional laws that provided clear intent (sometimes).  That worked for several years, as evidenced by the slow growth of the federal bureaucracy up to the time of the Great Depression.

It took a Democrat

It was the job of another radical Democrat, Franklin Delano Roosevelt, or FDR, to recognize and employ the power of a Federal bureaucracy to effect the fundamental transformation of a government from one that served the people to one that controlled the people.  Returning to the Constitution, that document was written on the assumption that governments were instituted to serve their citizens, and that as a consequence, it needed to be kept small and manageable.

FDR was not the first, but was one of the most flagrant violators of the laws and principles set forth in the Constitution.  Acting on the idea that government could solve the problems that the government had caused, he created numerous new programs which required new agencies and more government power, all justified as necessary to “fix” the economic problems of the Great Depression.  Many of his actions were challenged, and struck down by the Supreme Court as unconstitutional, at least until he threatened to expand and pack the Court with his appointees, at which point the Court meekly sat down and shut up.  Sound familiar?

Further erosion of the Constitution has proceeded Democrat president by Democrat president, with even a Republican or two thrown in as some sort of Patriot Act, until we arrive at our current situation.  We now have an administration actively hostile to our Constitution, thoroughly convinced that it is at best an inconvenience and more an active block to the actions they feel they need to take to shape the country according to their vision.

Shifting ground

The purpose of this rather lengthy history was to show how our understanding of the role of government has changed over the past 250+ years.  Starting with the idea enshrined in our Declaration of Independence,

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,”

and the purpose stated in the Preamble of our Constitution,

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

we have progressed to the idea that governments are instituted among men to direct and control their actions to serve whatever purposes the government deems appropriate.

The Great Transformation

We have transitioned from the Constitution as Supreme Law of the Land, to the Constitution as a set of obsolete ideas and suggestions no longer relevant to our modern complex society; from a fixed beacon for us to use to navigate the waters of civil society, to an ever-shifting Sargasso to be avoided as conditions warrant.  We have gone from a government constrained to provide critical services to its citizens to one that feels empowered to use the coercive power of the State to mold society as a potter molds clay according to whatever fashionable concepts of the day direct.

The bureaucratic state is predicated on the assumption that the citizenry of the country is incapable of managing such a complex country as the US, and a centralized bureaucracy of skilled and dedicated bureaucrats is needed for proper management.  It is time and past time to question the validity of that assumption.

A modern consequence

We observe today a great divide in our populace, with two sides in adamant opposition.  Whether one labels the sides Left or Right, Democrat or Republican, Liberal or Conservative, the division can be traced directly to the transition in the understanding of the purpose of government, as described above.  What could we reasonably expect when we have transitioned to a government that believes it has the right, and even the obligation, to use its power of coercion to enforce ideology driven directives on the populace?  How could it be different if one group in power sought to force its beliefs on a major portion of the population that wanted little more than to be left alone?

We now have roughly half the population that holds the Constitution as the Supreme Law of the land , not to be violated, and believes that government has grossly overstepped its authority, going far beyond its simple duties that were originally intended for it.  We have another half that believes that it should be the function of government to impose popular fads on its citizens – fads pertaining to gender, climate, race, justice, religion, rights, speech, economics, and a host of other matters.  What could be more dividing?

The Rule of Law

All this brings us to the second major topic – the Rule of Law.  The two topics are closely linked, but still distinct.  For millennia, rulers of many different sorts have recognized that arbitrary rule is counterproductive, even though it appears highly attractive to those who would employ it. Four thousand years ago, king Hammurabi had his laws carved onto a boulder and set in the center of the city for all to read. He knew that he could not expect his subjects to be held accountable if they were unaware of the law.  To do otherwise would lead to civil disruption and rebellion.  Likewise, his judges could not make fair judgment unless the law was known.  He recognized that equal justice under law was essential to a stable and peaceful society.

The Christian heritage of our founders informed our own laws, several of them based on the Law of Moses from about the same period of Hammurabi.  In addition, many of the harsh laws found in the Old Testament were tempered and moderated by the teachings of Jesus in the New Testament of the Bible. Our Founders studied the history of law, from those early laws through the developments of ancient Greece, of Roman Law, and finally, English Law, which was itself based on all those sources, and used what they learned to craft the best structure they could, where by best we mean fair, just, and minimally restrictive.

A need for consistency

Whatever the source, the need to have the law consistent and known was a central requirement.  Arbitrary and whimsical law was recognized as a sure route to social unrest and the destruction of a country. The English Magna Carta was a major milestone in the rule of law, affirming the need for consistency of law as well as common knowledge.  Our Constitution was an attempt to codify the fundamental laws of the land both in concise form, and in the language used at the time so it could be readily understood and applied.

A second requirement, less appreciated, is that the law be known.  While it is commonly recognized that ignorance of the law does not excuse a crime, there is the unstated requirement that the law be knowable.  This has been satisfied by publishing the text of laws in various publicly accessible documents.  For the Federal government, the basic publication is the Federal Register.  The Register lists all laws, proposed laws, regulations, notices, executive orders, and miscellaneous items.  It lists all the laws and regulations we are expected to know and obey, and since it is published, there can be no excuse that a law or regulation was not known.  Or can there be?

Is it possible to know the law today?

While the Register contains lots of things besides final regulations and laws, a second publication, the Code of Federal Regulations (CFR) lists only those final laws and regulations we are expected to know and obey.  Simplifies matters, doesn’t it?  A handy website from George Washington University provides some useful statistics to help us understand what is expected of us.

In 2019, the last year shown, there were only 185,984 pages published in the CFR – an easy weekend read.  Of course, we were expected to read them all to see if any of them applied to anything we were doing and to be sure we were in compliance.  In addition, we have another three years to catch up on.  Happy reading!

Drowning in paper

In order to really know what was required of us, we would have to go back to 1938 to begin reading in order to know what prior regulations apply to us, as well as to determine which ones might have changed or been revised.  The total number of pages we would have to review is only about 7,130,542, give or take a few.  Remember that bureaucracy we wrote of earlier?  Do you wonder now what they were busy doing?

We have been and are paying an army of bureaucrats to think up new rules and regulations with which we are expected to comply.  What? You haven’t kept up with your reading?  Naughty, naughty!   And those are only the Federal rules.  Every state now has their own body of rules which we are expected to know and with which we must comply.

We need to remember that ultimately, the purpose of a bureaucracy is to employ bureaucrats.  All else is secondary.

plus ça change, plus c’est la même chose

Given that the rules and regulations are literally changing daily, it becomes an impossible task to know what rules apply to us.  The French quote from Jean-Baptiste Alphonse Karr above gives an appropriate perspective.  Mark Twain said something similar, back before we had a significant bureaucracy when he wrote “No man’s life, liberty, or property are safe while the legislature is in session.”. To that we now have to add “…or during any federal workday.”  This is the foundation on which our Deep State is built.

The current situation must be considered to be a fundamental betrayal of the concept of the rule of law.  If the law cannot be known, it can only be applied in a haphazard and arbitrary manner such that no-one can conduct themselves with any assurance that their actions are legal.

Rule of Law today

Many have noted the two tier legal system that applies today.  The Left, as embodied in the Democratic party, seems particularly oriented to using their power to excuse transgressions of their own, while prosecuting those of their opposition.  For them, the Rule of Law means that as a rule, the law only applies to Republicans, conservatives, and anyone who annoys them.

Given all the rules and regulations to choose from it is easy to find some rule that any individual is breaking, convict them, and punish them.  If they are friends of the Left, leniency can be shown, understanding that there was likely no intent to break a rule they probably didn’t know existed.  On the other hand, an opponent can be punished to the full extent of the prescribed penalties, with no leniency shown, because they should have known better.  After all, the rules were published, so they have no excuse.  Just look at the treatment of the January 6 “insurrectionists”, and BLM rioters, and Antifa.

Desire for control and power seems to be baked into the Democrat DNA.  Whether such Machtlust arises as a consequence of being a Democrat, or whether the condition predisposes an affinity for the Democratic party is largely an academic issue.

Where do we go from here?

It is clear that the situation is not stable.  If we wish to continue as a Nation and as a people, we must change our view of the role of government, returning to something more like a basic services model.  Using the coercive power of government to impose an ideology on an unwilling populace is a sure recipe for disaster as we can see in the deep divisions that exist in our society today.

Trump, among others, was right.  We must drain the swamp.  Yes, the swamp creatures will fight back, and it will likely be a long and painful struggle, but we need to realize that the Administrative State is a failed model of government.  Wherever it has been implemented, and under whatever name, it has failed.  Byzantium lent its name to the condition that results when bureaucracy rules.

We now have much better understanding of how complex systems work, and especially how distributed systems of localized control are much more stable and robust than centralized control systems, and offer much greater individual freedom.

While centralized systems have great appeal with their apparent efficiency, reduction of waste, and ability to focus effort on seemingly worthwhile objectives and goals, they are actually quite fragile and vulnerable to what would otherwise be minor disturbances.  Remember that our original system survived one of the greatest threats a nation can experience – a civil war, and survived intact.

We now have fourth and even fifth-generation bureaucrats, where institutional and personal knowledge of how to manipulate and control Congress, the Presidency, and the populace have been passed down and refined from generation to generation.

The bureaucracy, succumbing to the corrosive effects of power, has become contemptuous of the citizenry they ostensibly serve, coming to see them as inferiors to be manipulated, sheep to be herded and shorn, existing solely to support the bureaucrats in the style to which they have become accustomed.

The condition is not unique to us.  The administrative pandemic has spread across the globe infecting governments everywhere.  Fortunately, many people are now realizing its danger and are seeking a cure.  We are not alone.

By David Robb

David Robb is a regular contributor to The Blue State Conservative and a practicing scientist who has been working in industry for over 50 years. One of his specialties is asking awkward questions. A large part of his work over the years has involved making complex scientific issues clear and understandable to non-specialists. Sometimes he even succeeds.

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The views and opinions expressed in this article are solely those of the author and do not necessarily represent those of The Blue State Conservative. The BSC is not responsible for, and does not verify the accuracy of, any information presented.

Notice: This article may contain commentary that reflects the author’s opinion.

Image by Wynn Pointaux from Pixabay