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Democracy in Decline: The Subversion of Rule of Law

A friend recently wrote me to offer a sharp formulation of a distinction I have often written about myself. Regular readers know that I am fond of distinguishing between “democracy”—a political arrangement in which the demos, the people, rule—and “Our Democracy™,” a counterfeit or masquerade of democracy in which not the people but an elite nomenklatura rule. To an increasing extent, I believe, the United States is gradually subsisting into the latter, with all the political, social, and moral deformations that such anxious oligarchical arrangements entail.

True enough, the United States was never really a democracy—a form of government, as James Madison observed in Federalist 10, that tended to be “as short in its life as it is violent in its death.” Rather, the United States was, from the beginning, a democratic republic. Ultimately, the people were sovereign—that was the point of the phrase “We the People.” But their sovereignty was mediated through the agency of representation. The point of my distinction, however, still holds. The Founders bequeathed us a democratic republic and a Constitution whose chief purpose was to define and limit the power of government. Their modern successors have inhabited that political dispensation, slyly perverting and emptying it out of its original signification while maintaining the names and rituals of the original.

If you believe that the words “perverting” and “emptying it out of its original signification” are extreme, I invite you to contemplate the tenth amendment to the U.S. Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” To what extent is the letter or spirit of that instruction followed today?

The answer is: not at all. What was originally a document designed to limit government and protect people from its coercive intervention has mutated into a reliquary containing the desiccated remains of a once-potent, now mostly quaint and antique admonition.

Which brings me back to my friend’s crisply formulated distinction. There are, he noted, two forms of law: rule of law and rule by law. The first, he wrote, the rule of law, “is based upon neutral rules that are in place and applicable to all without regard to political belief or status, economic class, religion, etc. That is or was the aim of classical liberal politics—to erect a limited system of laws applied to all as a foundation for liberty.” That’s precisely what the Framers intended to bequeath us.

The alternative, rule by law, describes the antithesis. Indeed, it is

a system of rules applied at the discretion of ruling elites, who exempt themselves and allies from those rules, and apply them to others on an arbitrary basis. The rule by law comes into play when the state has evolved into a large-scale enterprise and has formulated laws in scale and number that are capture citizens in a web of rules. In that circumstance, it is not difficulty to enforce rule by law, where the laws or rules can be applied politically or arbitrarily.

In one sense, what my friend describes here is the situation Tocqueville warned about in his famous paragraphs about “democratic despotism” in Democracy in America. How, Tocqueville asked, would despotism come to a modern democracy? It would not, as in despotisms of yore, tyrannize over the populace. Rather, it would enforce submission by promulgating conformity in a gentle, if smothering, way. And it would do this by casting over society an increasingly intricate network of rules and regulations that sap initiative. In Tocqueville’s famous image, the government becomes a vigilant shepherd and the people a flock of sheep.

Tocqueville understood the enervating dynamic of democratic despotism. But the actual behavior of the Committee that rules us—the government itself and the sprawling, onion-like knot of agencies that carry out the government’s will—show that Tocqueville underestimated the persistence and harshness of the tyrannical in his anatomy of this modern perversion of democracy.

If you doubt this, contemplate the treatment of modern enemies of the state, the January 6 protestors, for example, or the pro-life advocates who demonstrate against abortion, or the ex-Marine who is indicted for murder because he intervened to save his fellow subway riders from the attacks of a violent homeless man. When I tell you that the ex-Marine is white while the homeless man, who died after the Marine tackled him, is black, you have all the information you need to appreciate our modern two-tier justice system at work. You saw the same thing on display last week when a horde of illegal immigrants jumped and savagely beat two New York City policemen. The incident was filmed, as was the aftermath. The perpetrators were arrested but quickly released. They made angry, obscene gestures at the recording cameras and fled to California in order to enjoy the largess provided to criminals by Governor Gavin Newsom. And of course there is the example of Donald Trump: possibly the man most harassed by our laughably named “Department of Justice” in the history of the Republic.

These are some of the many signs and portents that signal the guttering of the rule of law and its replacement: rule by law. It is an autumnal sign—a sign of civilization at the end of its tether. Is there any remediation, and going back? Yes, it’s possible. But if I were a betting man, I wouldn’t advise counting on it.

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Notable Replies

  1. Tell us something we don’t know. And while there are many voices crying out in the wilderness, there aren’t many enough. As long as politicians and bureaucrats continue to benefit from unequal justice, this imbalance will continue.

    Not un-noticed by mere voters, we no longer have the power to take back the power we once had and lost. For the last sixty years an intricate web of gossamer threads have been woven about the ankles of citizens. It began with the Civil Rights Act on 1964. Intended as a means of corrective (and well deserved) justice, it also formed the beginnings of a new administrative state whose power grew far beyond anyone in Congress at the time ever imagined-----some beyond their wildest dreams, and some beyond their most fervid nightmares.

    Think about it. Suddenly the idea of crafting a nation around social justice became a reality. New departments were created out of thin air. In 1970 Richard Nixon created the Environmental Protection Agency. Slowly at first and then with gaining acceleration new Administrative Law was crafted that in the end-----established bureaucratic boondoggles that took the timeline of building any infrastructure from months to years and then from years to decades. Try building a nuclear power plant today, just try. Or, as a citizen, just try to fill in or drain a small section of “wetland” that is actually boggy a few weeks out of the year during the rainy spring or after a winter snowmelt.

    Or how about Jimmy Carter’s Department of Education established in 1979? Just for fun, chart national test scores from 1980 through today. Chuckle----a school having a 4 % mastery level in math is considered a rousing success today.

    The list goes on and on. Each started with good intentions. Each grew into an overbearing Karen agency.

    Engineering works through math. Social Engineering works through emotions. And while real engineers minutely parse the occasional disaster so that it never happens again, social engineers never admit they made a mistake in the first place. And if no mistakes are ever made, no one is held accountable. What is not checked, grows.

    Edited: Since my theme is what happened to us 60 years ago, I did not get into the nightmare of what occurred after 9/11-----the Patriot Act, the Department of Homeland Security, the expansion of the FISA Court, etc. Feel free to chime in on those as you wish.

  2. My dear but late friend was active in the Dutch underground during the Nazi occupation. He said it was actually not so bad at first because the Nazis got the government to become so much more efficient but slowly things changed. One soon needed a permit to open a business, permission to move within the country was needed, curfews began to be imposed. After D-Day the oppression became unbearable with no food and no freedoms and the public executions soon followed. The Netherlands was one of the last countries to be liberated and conditions worsened until May of 1945. I’m proud to have known him but his stories are still chilling.

  3. Is there any remediation, and going back? Yes, it’s possible. But if I were a betting man, I wouldn’t advise counting on it.

    First, I will paste part of my comment from another AG article this morning. Like Mr. Kimball, I do not see a going back. But, as Winston Churchill said, “If you’re going thru Hell, keep going”. We are in the crisis period of the fourth turning, and its going to last a bit longer–perhaps a decade or more. But there will be another time–another side. Thus, we must survive, adapt and overcome. But those who inflicted this on us must not survive; they must perish.

    All this stops when it is stopped as ruthlessly, mercilessly and gratuitously as possible. The other side refuses to abide by the rules and traditions of our democracy, while hypocritically invoking the words and phrases to insist they are. But as we all well know, there are no more laws, tradition is mocked, and the Constitution is a dead letter.

    If we want our country back then our response must be orders of magnitude disproportionate and overwhelming. Although massive, sustained civil disobedience would be preferable, I doubt it will budge the megalomaniacal tyrants who run this country. Hence, my first paragraph.

    Second, I watched a fascinating video by Bill Whittle yesterday and it should be required watching for anyone vigilantly watching our country descend into despotism and tyranny. While I don’t entirely agree with Mr. Whittle’s conclusion, it is something worth pondering. But his analysis is brilliant and worth bookmarking.

    Bill Whittle and Things to Come

  4. Max, I very much enjoyed the Whittle talk. Thanks for linking it. I could easily see the parts where you would be in agreement------and the parts where you probably disagreed. And while his prognostication was hopeful at the end, we STILL have to live and survive the interim. (That will be tough)

    As many have observed, we can’t vote our way out of this----at least not at the national level. I did get the idea, though, that Whittle believes we can vote (and enforce) our way out of this at the local levels. He might be right. I do believe major cities, as we currently understand them, truly are doomed. What will be left after the final falling will probably resemble something out of a Mad Max movie. The sane and law abiding will have left leaving the criminal elements to rule themselves in perpetual anarchy. They can have them.

    We country folk, as we take on the city refugees, will make sure they don’t repeat their same mistakes. Of that I’m convinced. First, because the weak minded of them will just gravitate to less bedraggled cities such as Austin and repeat the same failures there. We could not care less. Second, out here we live under an immutable natural law—the grocery store is 20 miles away. Uber can’t get you there. There may be only two plumbers in the county. If your toilet stops up, you’ll need to unstop it yourself. No one else is coming to the rescue.

    IOWs, those that can adapt will prosper. Those that can not will not.

  5. I would disagree with your friend’s assessment of the Nazi occupation - maybe the Nazis got the trains to run on time, but the Nazi also implemented Hitler’s “Final Solution” and rounded up Jews, homosexuals, and all others who opposed them, and imprisoned, killed outright, or sent these people to the Death Camps. We have Anne Frank’s Diary and her family’s experience of the evil intent of the Nazis.

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