Rule of law >> democracy

There is a pernicious notion that the essential quality of the American system of government is democracy. This is a very basic misunderstanding, and one that seems to be ingrained early. In my case I picked it up as a child, so early than I’m not even sure when.

But it’s nonsense. Democracy, also sometimes called more forthrightly “majority rule”, is the idea that 51% of the people have the right to impose their will on the other 49%. We know instinctively that this is wrong.

ASIDE: I’m considering democracy under its narrow meaning here. It’s true that democracy (or “liberal democracy”) sometimes is used to refer to whole collection of ideas, not just majority rule. But in that case I am arguing that using “democracy” as an umbrella term is inapt.

The essence of the American system is liberty. Democracy is but a means to an end. As Heinlein’s Jubal Harshaw put it (paraphrasing): democracy is a poor system; the only thing to be said in its favor is the other systems are worse. Since haven’t figured out a realistic way for society to survive without government, putting its management into as broad hands as possible impedes it becoming a tyranny.

Impedes, but does not prevent. Democracy is just one mechanism we use to protect our liberty; others are the rule of law, separation of powers, checks and balances, and a bill of rights. Democracy is probably the least important of these.

The most important is the rule of law. Friedrich Hayek explains it this way (in his brilliant sixth chapter of the Road to Serfdom):

Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge. . .

While every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action.

The rule of law says that people can live their lives, run their businesses, raise their families, in a system whose rules are known to them in advance. The government will not interfere capriciously.

In the American system of government, laws are made, interpreted, and carried out by three distinct branches. The laws are changed only with difficulty (by the legislature), they are interpreted consistently (by a judicial system bound by precedent), and they are “faithfully executed” (by the executive).

Alas, this system has gone off the rails. When the legislative and executive powers are in the same hands, the potential for capricious interference increases dramatically. Once the Constitution was interpreted under the nondelegation doctrine (which dates back at least to 1689), which provided that the legislative power could not be delegated. However, in 1928 the Supreme Court ruled in Hampton v. United States that legislative power could be delegated, provided the law provided an “intelligible principle” to guide the executive branch.

The intelligible principle needn’t be particularly detailed either. Laws have almost never been struck down due to unconstitutional delegation, and in 1989 the Supreme Court made the low standard explicit in Mistretta v. United States, stating:

Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.

Today, Congress “delineates the general policy”, while executive-branch bureaucrats make all the rules that govern our lives. That it does so capriciously cannot be denied. For example, when the EPA decides that carbon dioxide is dangerous, it gains the power to shut down coal-fired power plants, and anyone who invested money under the old rules is simply out of luck. And the EPA did so on its own; there was no legislative action, indeed, Congress considered the question and chose not to act.

Very recently, however, the problem has gotten much worse. President Obama has now arrogated for himself the power to decline to carry out portions of the law he doesn’t want to carry out, even in the absence of any delegation of power to do so. This is in direct violation of the Constitution’s provision that the president “shall take Care that the Laws be faithfully executed.”

He has done so by refusing to enforce the Defense of Marriage Act (justified by his claim that it was unconstitutional, which the Supreme Court later backed), refusing to enforce immigration law for certain classes of illegal immigrants (justified by prosecutorial discretion), and declining to carry out certain provisions of Obamacare (justified by nothing whatsoever).

To be clear: some or all of these may well be good policy. That is entirely beside the point; they are not the law. Under the rule of law, the government is “bound by rules fixed and announced beforehand,” regardless of how the executive might judge their wisdom from moment to moment.

Today we have democracy (mostly), but without the rule of law, democracy merely gives us an elected tyrant.

POSTSCRIPT: A number of people have written elegantly on the dangerous implications of Obama’s arrogation of the power to ignore the law: Michael McConnell, John Yoo, and George Will. Andrew Klavan has recently written about the problems with democracy in another context.

UPDATE: Another example, Obama is unilaterally changing drug laws. Again, I agree as a matter of policy, but that’s not the point. He should push for the law to be changed, but he won’t do that. Respecting the rule of law would require political effort.

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