The true
test of civilization is, not the census, nor the size of cities, nor the
crops – no, but the kind of man the country turns out.
– Ralph Waldo Emerson
In case any reader still clings to the platitude that the
American political system is based on the proposition that ours is “a society
of laws, and not of men,” I urge you to pay close attention to the events of
recent years. Political behavior does not exist in abstractions, such as the
“state,” or the “government,” or a “constitution,” but is activity engaged in
by such men and women who find the machinery of state power a useful device for
accomplishing ends that they value. Those who desire to control others through
access to the tools of violence that define the state, have rationales to
convince their intended victims of the “rightness” of their rule. From
explanations such as “God’s will” to the “divine right of kings,” the authority
of some to enjoy coercive power over others – along with their subjects’ duty
of obedience – is so engrained into the minds of people as to seem as
self-evident as the forces of gravity.
The
humanistic sentiments of the Enlightenment helped transform these autocratic
assumptions about the source of political authority, substituting as a
rationale for the state the myth of a “social contract.” Formal constitutions
were written, presuming to create a state by contract, in the collective name
of “We the people.” In the American version, political authority was to be
disbursed among three major branches, with the legislative branch to enjoy
sovereign power; a proposition that would make it difficult – if not impossible
– for an individual to enjoy unchecked authority. Coupled with the illusion
that the exercise of power could be restrained by words written on parchment,
it was believed that reasonable persons could therefore trust state power. That
some of the most repressive actions of the Soviet Union were conducted under a
written constitution loosely modeled on the American one, should disabuse
anyone of the thought that governmental powers could be restrained by words.
Such an arrangement sounds reassuring – except to those who have
bothered to read the document or the cases decided under it. Though the
Constitution contains numerous words, two passages in Article I, Section 8 are
sufficient to confirm its unrestrained power given to the state. One passage at
the beginning of this section provides that “The Congress shall have Power. . .
to provide for the common Defence and general Welfare of the United States.”
This power is elaborated upon by the concluding words to this section that
Congress shall have the power “To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.”
Suppose I
were to be given the authority “to make all laws which shall be necessary and
proper” in order to promote your “general welfare?” What limits would such
words place on me? What immunity from the exercise of my powers would you
retain to avoid any governance I might exercise over you? It was just such
questions that led Britain’s Lord Thomas Macaulay to declare, in 1857, “Your
Constitution is all sail and no anchor.” “Ahh,” you might respond, “but this
Constitution contains a ‘Bill of Rights’ that limits governmental authority.”
In the event of a conflict between what a government official orders, and an
individual’s defense that such would violate a protected liberty, how – and by
whom – would such differences be resolved? Whose authority would prevail?
Article VI tells us that “This Constitution, and . . . the Laws . . . made in
Pursuance thereof . . . shall be the supreme Law of the Land,” but fails to
identify who shall be empowered to interpret or enforce that. Neither does
Article III, which establishes “The judicial Power of the United States.” When,
in the 1803 Supreme Court case of Marbury v. Madison, the
Court simply usurped the power of judicial review of the actions of other
branches of government – there being nothing in Article III that even remotely
expressed such an intention by the framers – it took upon itself the status of
the sovereign of political authority.
The
Constitution, itself, should remind us that “laws” do not exist in a vacuum,
but are the products of human action which, in turn, is behavior driven by
people pursuing their self-interests. With legislation created by a political
system that enjoys a monopoly on the legal use of force, it is clear that laws
are but the means by which some people pursue their ends at the expense of
others.
From the
very creation of the national government, to how its different branches would
act, there has always been a fuzziness as to the meaning of words used in the
Constitution. This is due to the fundamental nature of all words. Being abstractions, their application
to real-world events inherently depends upon their interpretation. When the Supreme Court tells us
that it will have such authority, it is telling us that
the government thus created by this document will be
the interpreter of its own supposed “limited powers.”
Under
these powers of interpretation that the government has taken to itself, the
Supreme Court has provided a consistent pattern of interpreting congressional
and executive authority quite broadly, while
giving narrow interpretations to Bill of Rights
provisions. The aforementioned “necessary and proper” clause has been construed
to mean little more than “convenience,” while the supposed defense of
individual liberties are often constrained by such words as “free speech (or
religion) does not include. . .” The Supreme Court has also permitted Congress
to create those branches of government known as “administrative agencies”
(e.g., the FDA, FCC, DEA, NLRB, SEC, etc.); entities with which most Americans
must contend. This regulatory system has been premised upon agency officials
having an “expertise” in the subject-matter to be regulated (such “expertise”
arising from professional connections with the companies to be regulated!). In
a so-called “democratic” political system, unelected federal judges and
unelected agency officials enjoy the exercise of powers to which they are
answerable to no one but each other!
With such
usurpations of political authority generating little objection from the
boobeoisie, it comes as no surprise that presidents and state governors would
be attracted to the practice by issuing “executive orders.” What easier way to
avoid pressures associated with the legislative process than to be your own
legislator? Democracy is such a troublesome system, what with “Joe Sixpack” – a
term used by the statists to dismiss the interests and concerns of those they
pretend to represent – being able to influence Congress to vote in accordance
with policies that differ from the ends sought by their masters. The first nine
U.S. presidents issued a total of 40 executive orders, while the Roosevelt boys
added 4,809 of their own! During the Reagan through Obama years, 1,478
executive orders were fashioned. Fully aware of the difficulties he would have
in getting Congress to cooperate with him by violating the Second Amendment,
President Obama tried to circumvent this constitutionally-protected liberty by
fashioning his own gun control executive
orders. Donald Trump, following the examples of his predecessors, is just
getting started with his additions.
At the
state level, a few governors have also been getting into the executive order
practice. In 2007, then Governor Rick Perry issued a decree mandating Texas
girls to be given the HPV vaccine (Gardasil). That his order was tainted not
just by the involuntary nature of his edict, but by his political connections
with the pharmaceutical firm that produced the vaccine, led to his order being
rescinded. More recently, Ohio Governor John Kasich issued an executive order
prohibiting opiate prescriptions that lasted for more than seven days. The
state licensing of physicians has long been premised on the assumption that
only professionally-trained doctors should be able to treat patients and
prescribe medical drugs and treatments. As neither Perry nor Kasich was
licensed to practice medicine in their respective states, their mandated
prescriptions would violate the same laws that prohibit barbers from performing
tonsillectomies, or school teachers from engaging in brain surgery. While
unlicensed medical practitioners are prohibited from making medical decisions
for patients, it has long been the case that, if a physician wanted to employ a
given procedure with a patient, he or she would first check with the insurance
carrier to determine if such a procedure would be covered. If the insurance
company clerk were to conclude that it would not be covered, the doctor would
likely change his proposed treatment. In such a case, the clerk – not the physician – would effectively have
the final say regarding medical decision-making. If presidents and governors
are entitled to make such decisions on the basis of some hidden, presumed
powers, what other political figures might get into the game? Will mayors,
government-school superintendents, post-office officials, or police chiefs be
the next to mandate prescriptions for other people? In the words of that
erstwhile comedian, Jimmy Durante, “everybody wants to get into the act!”
As the self-serving nature of realpolitik becomes increasingly
evident to more people, such bromides as society being governed “by laws, not
men” becomes more difficult for intelligent minds to listen to with a straight
face. In the same way that observed reality did away with the idea of an
earth-centered universe, humanity may be in the early stages of dismissing the
political illusions upon which we have been conditioned to celebrate our mutual
commitments to our self-destruction.
Butler
Shaffer [send
him e-mail] is Professor Emeritus at Southwestern University School
of Law. He is the author of the newly-released In Restraint of Trade: The Business Campaign Against
Competition, 1918–1938, Calculated Chaos: Institutional Threats to Peace and Human
Survival, and Boundaries of Order. His latest book is The Wizards of Ozymandias.
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