We’ve taken our post, ‘Revolution Within the Form – Review and Commentary’ and disaggregated it. It was too long and tortuous as extracted from the source material, so we took it apart into more cohesive modules. However, as with all blog posts, these modules were posted in reverse order so that they would be in order when read later. This post links these posts for those who saw them issued in reverse order.
Do Not Look for a Revolution – Garet Garrett and his views on our loss of the American Republic to empire, his so-called ‘revolution within the form.’
Our Government’s Erosion – Garet Garrett’s synecdoche, centered on the Constitution’s phrase, “The Congress shall have power to declare war,” for the erosion of the American republic and transformation into empire.
We also attempted to get these published in a national blog, but they weren’t appropriate to their needs. Hopefully these smaller articles will get wider distribution and reading. Garrett foresaw what many did not seventy years ago. Some, however, did. The difference of course is that he said something about it. He was forgotten.
Scene at the Signing of the Constitution of the United States, Howard Chandler Christy (January 10, 1873 – March 3, 1952), Public Domain in the US
There are those who still think they are holding the pass against a revolution that may be coming up the road. But they are gazing in the wrong direction. The revolution is behind them. It went by in the Night of Depression, singing songs to freedom.
He quotes Aristotle’s Politics, “one thing takes the place of another, so that the ancient laws will remain, while the power will be in the hands of those who have brought about revolution in the state.”
People do not easily change but love their own ancient customs; and it is by small degrees only that one thing takes the place of another; so that the ancient laws will remain, while the power will be in the hands of those who have brought about a revolution in the state.
The extent to which the original precepts and intentions of constitutional, representative, limited government, in the republican form, have been eroded away by argument and dialectic is a separate subject, long and ominous, and belongs to a treatise on political science.
…When the process of erosion has gone on until there is no saying what the supreme law of the land is at a given time, then the Constitution begins to be flouted by executive will, with something like impunity. The instances may not be crucial at first and all the more dangerous for that reason. As one is condoned another follows and they become progressive…
As we see every day, the revolution is not over. However, Garrett’s point is that the revolution started in the early Twentieth Century. Keep in mind that the original source article was published in 1952, seventy years ago.
The extent to which the original precepts and intentions of constitutional, representative, limited government, in the republican form, have been eroded away by argument and dialectic is a separate subject, long and ominous, and belongs to a treatise on political science.
…When the process of erosion has gone on until there is no saying what the supreme law of the land is at a given time, then the Constitution begins to be flouted by executive will, with something like impunity. The instances may not be crucial at first and all the more dangerous for that reason. As one is condoned another follows and they become progressive…
Garrett describes a representative instance of the whole erosive process,
…There was one thing a President could never do. There was one sentence of the Constitution that could not fall, so long as the Republic lived.
The Constitution says: “The Congress shall have power to declare war.”
…Congress could be trusted never to do it but by will of the people. And that was the innermost safeguard of the republic. The decision whether or not to go to war was in the hands of the people – or so they believed. No man could make it for them…
He writes that this constitutional principle was circumvented, an example of the progressive ‘revolution within the form,’
President Truman, alone and without either the consent or knowledge of Congress, had declared war on the Korean aggressor, seven thousand miles away, Congress condoned his usurpation of its exclusive constitutional power. More than that, his political supporters in Congress argued that in the modern case that sentence in the Constitution conferring upon Congress the sole power to declare war was obsolete.
Mark you, the words had not been erased; they still existed in form. Only, they had become obsolete. And why obsolete? Because war may now begin suddenly, with bombs falling out of the sky, and we might perish while waiting for Congress to declare war.
The reasoning is puerile. [Firstly,] the Korean War, which made the precedent, did not begin that way; secondly, Congress was in session at the time, so that the delay could not have been more than a few hours, provided Congress had been willing to declare war; and, thirdly, the President as Commander-in-Chief of the armed forces of the Republic may in a legal manner act defensively before a declaration of war has been made. It is bound to be made if the nation has been attacked…
A few months later Mr. Truman sent American troops to Europe to join an international army, and did it not only without a law, without even consulting Congress, but challenged the power of Congress to stop him. Congress made all of the necessary sounds of anger and then poulticed its dignity with a resolution saying it was all right for that one time, since anyhow it had been done, but that hereafter it would expect to be consulted.
But the damage had been done. The congress no longer held this constitutional power, de facto. All that was left was for the executive branch to declare it de jure. Garrett writes,
At that time the Foreign Relations Committee of the Senate asked the State Department to set forth in writing what might be called the position of Executive Government.
The State Department obligingly responded with a document entitled, “Powers of the President to Send Troops Outside of the United States, February 28, 1951.” For the information of the United States Senate, it said: “As this discussion of the respective powers of the President and Congress has made clear, constitutional doctrine has been largely molded by practical necessities. Use of the congressional power to declare war, for example, has fallen into abeyance because wars are no longer declared in advance.”
…If constitutional doctrine is molded by necessity, what is a written Constitution for?
Garrett states that the modus operandi for every revolutionary act undertaken by the Wilson, FDR, and Truman administrations, in the context of his example,
Thus, an argument that seemed at first to rest upon puerile reasoning turned out to be deep and cunning. The immediate use of it was to defend the unconstitutional Korean precedent, namely, the declaration of war as an act of the President’s own will. Yet it was not invented for that purpose alone. It stands as a forecast of executive intentions, a manifestation of the executive mind, a mortal challenge to the parliamentary principle…
If you think about recent history, this method of operation is used to this day at all levels of government. Imagine teaching these things in civics class.
If you may have Empire with or without a constitution, even within the form of a republican constitution, and if also you may have Empire with or without an emperor, then how may the true marks of Empire be distinguished with certainty? What are they?
Garrett lists six of these marks,
1) The executive power of government shall be dominant. – What Empire needs above all in government is an executive power that can make immediate decisions, such as a decision in the middle of the night by the President to declare war on the aggressor… The Federal income-tax law of 1914 gave the government unlimited access to wealth…not for revenue only but…for redistribution of the national wealth. Congress…principal function was to enact and [fund] them. The part of the Supreme Court was to make everything square with the Constitution by a liberal reinterpretation of its language… For all the years before when you spoke of the executive power of government you meant only the power to execute and administer the laws. Henceforth it would mean the power to [rule].
No longer did the Congress of the United States speak for the people, but the President did, as head of the Executive Government. Garrett writes, “Thus the man who happens to be the embodiment of the executive principle stands between the Congress and the people and assumes the right to express [the people’s] will.”
Examining the second mark of empire, Garrett writes,
2) Domestic policy becomes subordinate to foreign policy. – It needs hardly to be argued that as we convert the nation into a garrison state to build the most terrible war machine that has ever been imagined on earth, every domestic policy is bound to be conditioned by our foreign policy… We are no longer able to choose between peace and war. We have embraced perpetual war…
The third mark of empire is this,
3) Ascendancy of the military mind, to such a point…that the civilian mind is intimidated. – War becomes an instrument of domestic policy. Among the control mechanisms on the government’s panel board now is a dial marked War. It may be set to increase or decrease the tempo of military expenditures, as the planners decide that what the economy needs is a little more inflation or a little less – but of course never any deflation. And whereas it was foreseen that when Executive Government is resolved to control the economy it will come to have a vested interest in the power of inflation, so now we perceive that it will come also to have a kind of proprietary interest in the institution of perpetual war…
He then identifies a historic structural aspect of empire,
4) [It acquires] a system of satellite nations. – We speak of our own satellites as allies and friends or as freedom loving nations. Nevertheless, satellite is the right word. The meaning of it is the hired guard… For any one of them to involve us in war it is necessary only for the Executive Power at Washington to decide that its defense is somehow essential to the security of the United States…
…Any candidate for office who trifles with its basic conviction will be scourged. The basic conviction is simple. We cannot stand alone. A capitalistic economy, though it possesses half the industrial power of the whole world, cannot defend its own hemisphere. It may be able to save the world; alone it cannot save itself. It must have allies. Fortunately, it is able to buy them, bribe them, arm them, feed and clothe them; it may cost us more than we can afford, yet we must have them or perish. This voice of fear is the voice of government.
This hired guard becomes a source of both boasting and fear for empire. Garrett says,
5) [It is in thrall to a combination] of [boasting] and fear. – As we assume unlimited political liabilities all over the world…there is only scorn for the one who says: “We are not infinite. Let us calculate our utmost power of performance, weigh it against what we are proposing to do, and see if the scales will balance.” The [boastful] answer is: “We do not know what our utmost is. What we will to do, that we can do. Let us resolve to do what is necessary. Necessity will create the means.”
Conversely, the fear. Fear of the barbarian. Fear of standing alone. A time comes when the guard itself, that is, your system of satellites, is a source of fear. Satellites are often willful and the more you rely upon them the more willful and demanding they are… How will they behave when the test comes? …If they falter or fail, what will become of the weapons with which we have supplied them? What if they were surrendered or captured and turned against us? The possibility of having to face its own weapons on a foreign field is one of the nightmares of Empire…
The last mark of empire, Garrett writes, is that the time comes when,
6) [It] finds itself a prisoner of history. – …A Republic is not obliged to act upon the world, either to change or instruct it. Empire, on the other hand, must put forth its power… It is our turn: to assume the responsibilities of moral leadership in the world; to maintain a balance of power against the forces of evil everywhere – in Europe and Asia and Africa, in the Atlantic and in the Pacific, by air and by sea…; to keep the peace of the world; to save civilization; and to serve mankind.
…Always the banners of Empire proclaim that the ends in view sanctify the means. The ironies, sublime and pathetic, are two. The first one is that Empire believes what it says on its banner; the second is that the word for the ultimate end is invariably Peace. Peace by grace of force. One must see that on the road to Empire there is soon a point from which there is no turning back…
Summing up his description of empire, Garrett writes,
Between government in the republican meaning, that is, constitutional, representative, limited government, on the one hand, and Empire, on the other hand, there is mortal enmity. Either one must forbid the other or one will destroy the other. That we know. Yet never has the choice been put to a vote of the people.
The country has been committed to the course of Empire by Executive Government, one step at a time, with slogans, concealments, equivocations, a propaganda of fear, and in every crisis an appeal for unity, lest we present to the world the aspect of a divided nation, until at last it may be proclaimed that events have made the decision and it is irrevocable. Thus, now to alter the course is impossible.
Who says it is impossible? The President says it; the State Department says it; all globalists and one-worlders are saying it.
Garrett wrote these things seventy years ago. Having had a brief respite from new perpetual wars, we are right back at it. What comes to my mind is the scripture, “They have healed the wound of my people lightly, saying, ‘Peace, peace,’ when there is no peace.” Jeremiah 6:14, English Standard Version.
What Empire needs above all in government is an executive power that can make immediate decisions, such as a decision in the middle of the night by the President to declare war on the aggressor…
The Federal income-tax law of 1914 gave the government unlimited access to wealth and, moreover, power for the first time to levy taxes not for revenue only but for social purposes, …for redistribution of the national wealth.
Congress received from the White House laws that were marked “must.” Its principal function was to enact and [fund] them. The part of the Supreme Court was to make everything square with the Constitution by a liberal reinterpretation of its language.
The word executive came to have its new connotation. For all the years before when you spoke of the executive power of government you meant only the power to execute and administer the laws. Henceforth it would mean the power to [rule].
Garrett concludes, “The result is Bureau Government, administered by bureaucrats who are not elected by the people…” He then examines the ways that executive power expands.
(1) By delegation. That is when the Congress delegates one or more of its constitutional powers to the President and authorizes him to exercise them.
(2) By reinterpretation of the language of the Constitution. That is done by a sympathetic Supreme Court.
(3) By innovation. That is when, in this changing world, the President does things that are not specifically forbidden by the Constitution because the founders never thought of them.
(4) By the appearance in the sphere of Executive Government of what are called administrative agencies, with power to issue rules and regulations that have the force of law.
(5) By usurpation. That is when the President willfully confronts Congress with what in statecraft is called the fait accompli – a thing already done – which Congress cannot repudiate without exposing the American government to the ridicule of nations…
(6) Lastly, the powers of Executive Government are bound to increase as the country becomes more and more involved in foreign affairs. This is true because, both traditionally and by the terms of the Constitution, the province of foreign affairs is one that belongs in a very special sense to the President.
Examining the administrative state more deeply, Garrett writes,
These [administrative] agencies have built up a large body of administrative law which people are obliged to obey. And not only do they make their own laws; they enforce their own laws, acting as prosecutor, jury and judge; and appeal from their decisions to the regular courts is difficult because the regular courts are obliged to take their findings of fact as final. Thus, the constitutional separation of the three governmental powers, namely, the legislative, the executive and the judicial, is entirely lost.
Garret wrote this seventy years ago. Sadly, generations of conservative opinion makers seem to have made their fortunes from this kind of material. Garrett was conveniently forgotten. The administrative state has only grown larger these many years.
Do not ask whether or not it is possible [to alter our course]. Ask yourself this: if it were possible, what would it take? How could the people restore the Republic if they would? Or, before that, how could they recover their Constitutional sovereign right to choose for themselves?
When you have put it that way you are bound to turn and look at the lost terrain. What are the positions, forgotten or surrendered, that would have to be recaptured?
He then lists the hills that must be retaken if the republic is to be reestablished.
The first hill is “a state of mind,”
To recover the habit of decision the people must learn again to think for themselves; and this would require a kind of self-awakening, as from a wee small alarm in the depths.
The second is “renewed public debate of foreign policy.” Citing a speech given to the National Women’s Democratic Club on November 20, 1951, by President Truman, Garrett quotes,
You remember what happened in 1920. When the people voted for Harding, that meant a tremendous change in the course the United States was following. It meant that we turned our backs on the new-born League of Nations… I think most people now recognize that the country chose the wrong course in 1920… Since I have been President, I have sought to steer a straight course of handling foreign policy matters on the sole basis of the national interest. The people I have chosen to fill the major positions concerned with foreign policy have been picked solely on merit, without regard to party labels. I want to keep it that way. I want to keep our foreign policy out of domestic politics.
Garrett then analyzes Truman’s remarks,
So far had the American mind been conditioned by the infatuate phrase, bi-partisan foreign policy, that extraordinary statement was vacantly received. What was the President saying? He was saying that because, in his opinion, the people once voted wrong on foreign policy, they ought not to vote on it at all anymore. Let them leave it to the President. It follows logically that the people have no longer anything to say about war and peace.
On this [hill], where foreign policy once more shall be debated by the people who may have to die for it, let the wind be cold and merciless. Let those be nakedly exposed to it who have brought the country to this impasse.
The next hill that must be retaken is the “public purse,” once controlled by the people through congress, and now by the unelected Government Executive through (or, sometimes, in spite of) the president. He writes,
Until the people have recovered [the public purse] they cannot tame Executive Government. Passing laws to control or restrain it is of no avail whatever. The only way to reason with it is to cut it off at the pockets… No matter how badly the people may manage the public purse it cannot control them, whereas, in the hands of the government, control of the purse becomes the single most powerful instrument of executive policy touching the lives of the people.
Finally, the highest hill Garrett identifies, is the cost to save the republic that each citizen must pay, which he names “the Peak of Fortitude.”
What you have to face is that the cost of saving the Republic may be extremely high. It could be relatively as high as the cost of setting it up in the first place, [two hundred forty-seven] years ago, when love of political liberty was a mighty passion, and people were willing to die for it.
When the economy has for a long time been moving by jet propulsion, the higher the faster, on the fuel of perpetual war and planned inflation, the time comes when you have to choose whether to go on and on and dissolve in the stratosphere or decelerate. But deceleration will cause a terrific shock. Who will say, “Now!”? Who is willing to face the grim and dangerous realities of deflation and depression?
…No doubt the people know they can have their Republic back if they want it enough to fight for it and to pay the price. The only point is that no leader has yet appeared with the courage to make them choose.
To restore the republic, two things must happen. First, we must repent of our luxury and moral indifference and function as free and responsible citizens again. And second, we must pray that the hand of God removes the administrative state with its rules and regulations and installs responsible citizens in reconstituted city, state, and federal governments.
During this time of turmoil and strife, we do well to abide by the command,
“Do not call [confederacy] all that this people calls [confederacy], and do not fear what they fear, nor be in dread. But the Lord of hosts, him you shall honor as holy. Let him be your fear and let him be your dread. Isaiah 8:12-13 (English Standard Version and Geneva Bible)
Over the past three months, we have examined the struggle for our nation’s future. Though you might think the battle is between left versus right, wealthy versus poor, or is some sort of racial conflict, you would be wrong. The battle is between those who serve Man and those who serve God. Consider carefully, though, not everyone who serves is one of the faithful; many, if not most, are indifferent and go along to get along.
Those who would subject others to some human idea of perfection, either by persuasion or by force, worship Man. Their sacrifice consists of other men, women, and children. Those who acknowledge that no human idea is worthy of their service acknowledge, at least to some extent, that the God of the Bible is sovereign and that they live under His rule. God’s sacrifice is His only begotten Son given for you.
Conservatives, as a whole, have not done the hard work to stem the century long tide that has grown to overwhelming strength. Some claim the Age of Enlightenment is to blame. Many know it started in a garden, likely in the near east.
The following nine links and associated introductory paragraphs document our study in chronological order:
Daniel McCarthy, writing in First Things, describes our current pollical and economic troubles in the article, “A New Conservative Agenda, A Governing Philosophy for the twenty First Century.” He contends that our bipartisan credentialed class’s plan is to ensure its own privileges while placating the service class with divisive identity politics.
For those who are no longer productive, the elite offer “palliative liberalism;” a package of economic measures that stops just “short of restoring inherent dignity and power to work.” The elite class’s economic and cultural interests are “well-served by a completely atomized America, one in which states have not seceded, but individuals have…” (read more)
Administrative law is thought to be a recent threat to the American republic because it appeared in the last 120 years. Considered essential for decades by our leaders to handle the challenges of a complex and modern civilization, it was supposedly unforeseen by the framers of the U.S. Constitution.
Instead, Philip Hamburger proves that this corruption of our republic is very old. In his article, “The History and Danger of Administrative Law,” he says administrative law is the reinstitution of prerogative or absolute power of kings, now enforced by unelected bureaucrats. Hamburger says, “Rather than a modern necessity, it is a latter-day version of a recurring threat—a threat inherent in human nature and in the temptations of power.” It is potentially the end of representative democracy… (read more)
In his Claremont Review of Books article, “The Left Side of History,” Allen C. Guelzo reviews Bradley Watson‘s book Progressivism: The Strange History of a Radical Idea. According to Guelzo, “Watson has crafted, not so much a historical genealogy of Progressivism, as its historiography.” However, what I found interesting was Guelzo’s description of the descent of American Thought from colonial idealism into post-civil war despair and twentieth century destruction… (read more)
…Marini observes that Moreno “judges historical and political changes in light of an unchanging standard of the public good, or justice, an idea inherent in the founding documents, the Declaration of Independence and the Constitution.”
Summarizing one of our recent posts, Moreno says, “The United States is ruled by an establishment nowhere mentioned in the U.S. Constitution… Once a federal republic, we have become a centralized bureaucracy run by an unelected administrative class [that] combines legislative, executive, and judicial functions that the Constitution separated.” This transformation into a bureaucratic state has undercut federalism and the separation of powers. He also says that the congress, executive, and judicial branches are complicit with the states in the destruction of our constitutional republic… (read more)
John Marini, in his article “Abandoning the Constitution,” compares two views on the United States Constitution and whether your rights as citizens are God given and unalienable or merely granted to you (or withheld) by an unelected and therefore unaccountable bureaucracy. Progressivism’s hand in the latter view is apparent. It intends to mold its clients into whatever History demands as determined by experts. In the former view, you determine your life’s course in partnership with your fellow citizens and God’s providence.
Marini uses Thomas Paine‘s writings as representative of a majority of the founders’ views. Paine wrote in his book The Rights of Man,
A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to a government, and a government is only the [creation] of a constitution. The constitution of a country is not the act of its government, but of the people constituting its government… (read more)
Some argue that Happiness, in the context of our Declaration of Independence, means material happiness (e.g., property.) Some argue for emotional happiness. Yet others would argue that the word means more (e.g., free assembly, free speech, free exercise of religion, etc.)
…Today’s post contends that ‘Happiness’ means most of these possibilities. However, it means one more than the others. But we must not exclude any of these at our peril. Along the way, we’ll examine the words: Unalienable, Pursuit, Life, Liberty, and Consent, too.
Our sources are essays written by James R. Rogers and a commencement address given by Aleksandr Solzhenitsyn. Rogers, in a series of essays for Law and Liberty, defines Happiness along with the other important words to renew our understanding of our obligations to this nation and our fellow citizens. Solzhenitsyn, in his Harvard University Commencement Address, praises our nation’s founding principles and decries our fall from them. Let us examine the aforementioned words… (read more)
Edwin J. Erler, in his essay, “The United States in Crisis,” excerpted from his book, The United States in Crisis: Citizenship, Immigration and the Nation-State, says that the progressive goal for the United States of America is to surrender its national sovereignty and governance to a world government led by unelected administrative experts.
Rather than being American citizens, we would become citizens of the world. As world citizens, we would be governed by experts who know what we need better than we can ourselves. In their administration, these experts would be unhindered by the “consent of the governed.”
Actually, without representation, we would be clients of a vast, impenetrable, worldwide bureaucracy. We would be coerced to surrender our liberty for a numbing equality. We would be subjects of an unremitting tyranny. This is the logical outcome of the progressive project that we have documented in recent posts. Let’s examine Erler’s argument… (read more)
The United States of America may be losing its freedoms faster than we expected. What should those who profess Christ as Lord and Savior do?
G. K. Beale, in his introduction to his book, Revelation – A Shorter Commentary, tells us several important things for the times ahead.
…Whether we “Build Back Better” or “Keep America Great,” God is sovereign and will lead His people through the trials ahead. Our duty is to witness openly and not compromise with the world in the face of suffering. (read more)
I could summarize the views of those who urge, in the face of an undesirable end game, a renewed “monasticism” or a headlong rush to embrace administrative rule, but I will not; it is tedious and unfruitful. Instead, I propose we consider something much harder to do even as our liberties slip away. We must build back the institutions that we allowed, over the past century, to be coopted and destroyed by those who hate life, liberty, and the pursuit of happiness and favor, instead, purported “freedom and equality.”
…Today, we review arguments from several essayists who recognize it is past time for words; now we must act even if we don’t succeed in our lifetime. Matthew J. Peterson considers the crucial influence of our governing institutions upon us. Jeff Giesea urges us to envision what a problem-solving nation and a competent leadership would look like. The Editors at the American Mind give us the pep talk we need, urging us to restore and build the institutions closest to us. Spencer Klavan explains how we’ve failed to hold our future leaders accountable, what remedies we can immediately deploy, and what we must do for the future. Finally, Bruce Frohnen, citing T. S. Eliot, shows us the price to be paid for the destruction of our religion and culture, our very way of life… (read more)
A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to a government, and a government is only the [creation] of a constitution. The constitution of a country is not the act of its government, but of the people constituting its government.
[A constitution] is the body of elements, to which you can refer, and quote article by article; and which contains the principles on which the government shall be established, the manner in which it shall be organized, the powers it shall have, the mode of elections, the duration of Parliaments, or by what other name such bodies may be called; the powers which the executive part of the government shall have; and in [summary], everything that relates to the complete organization of a civil government, and the principles on which it shall act, and by which it shall be bound.
A constitution, therefore, is to a government what the laws made afterwards by that government are to a [judiciary court]. The [judiciary court] does not make the laws, neither can it alter them; it only acts in conformity to the laws made: and the government is in like manner governed by the constitution.
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. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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.
Marini, summarizing Paine, says, “[These are not binding agreements] of government with the people. It is the people who assign government its role, which is the protection of [the people’s] individual rights; when it fails to do so, it must be altered or abolished…It is the people who established a constitution. It was the Constitution, or the [binding agreement] of the people, which instituted and limited the power of government, by subordinating governmental institutions to the authority of a written constitution (and separating the powers of the branches of government).”
There are no fixed or eternal principles that govern,
The state and its component parts are organic [and] involved in a struggle for never-ending growth,
Democratic openness and experimentalism…are the fertilizer of the organic state,
The state and its components exist only in History,
Some individuals stand outside this process…an elite class, possessed of intelligence as a method,
Franklin Delano Roosevelt, in his September 1932 “Commonwealth Club Address,” portrayed the U.S. Constitution as a ‘living’ document with no permanent principles of governance and exchanged the sovereignty of the people for that of the government. He wrote:
The Declaration of Independence discusses the problem of Government in terms of a contract. Government is a relation of give and take, a contract, perforce, if we would follow the thinking out of which it grew.
Under such a contract, rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights.
The task of statesmanship has always been the re-definition of these rights in terms of a changing and growing social order. New conditions impose new requirements upon Government and those who conduct Government.
This subtle sleight of hand was not well received at the time, but never-the-less discloses the illogic foisted upon the American people. Roosevelt proclaims government sovereignty over that of the people and puts government, and its agents, in charge of the people’s economic and societal wellbeing without limits. Roosevelt insisted:
The issue of government has always been whether individual men and women will have to serve some system of government or economics, or whether a system of government and economics exists to serve individual men and women.
Marini rejoinders Roosevelt thusly,
Understood in this way, the economic (and social) system must come under the control of government before it can serve the people. And government must, of necessity, become the arbiter of rights, both economic and political. The will of the people must be established by government before it can be put into effect by the technical expertise of its bureaucracy. At that point, politics must give way to administration.
Roosevelt’s progressive “bargain” does away with God’s provision of the people’s rights and replaces it with the administrative state as the source and defender of their rights.
After illuminating the bifurcation between conservative and progressive understandings of government as represented by Paine’s and Roosevelt’s writings, respectively, Marini goes deeper. He says the progressive view and its embodiment, the administrative state, prevail in America’s governance.
Progressivism does not subject itself to natural or rational limits nor is it understood in terms of immutable truths as the foundation of rights and happiness. An evolving concept of freedom establishes the intellectual and moral foundation of each historical epoch. Society’s problem becomes reconciliation of conflicting individuals’ wills in all life’s activities to achieve equality of freedom of will.
In this regime, society’s principles are knowable through empirical measurement and analysis. This is known as positivist social science. It discovers epochal principles which are encoded in evolving law. The government is constituted in these mutable laws.
For what is most important about left- and right-wing jurisprudence today is not that they are of the right or of the left, but that they are “result oriented.” Their so-called principles are not in their premises, but in their conclusions.
They differ in the particulars of their “value judgments,” but not in the subjectivity of that which they propose as the ground of constitutional law. Calling their subjective preferences “traditional morality” [or original intent] on the one hand, or “human dignity” on the other, does not make their preferences any more than “value judgments,” or less subjective. If the basis of law is believed to be subjective, however, then the basis of law is believed to be will, not reason.
The goal or perfection of the law, according to the whole tradition of western civilization, is that it should be, in Aristotle’s words, “reason unaffected by desire.” This is what law means according to the natural rights and natural law teaching of the Declaration of Independence. But law that rests upon nothing but “value judgments” is desire unaffected by reason.
Roscoe Pound, who became Harvard Law School dean in 1916, insisted that “the science of law is a science of social engineering having to do with that part of the whole field which may be achieved by the ordering of human relations through the action of politically organized society.”
To Jaffa and Pound, Marini says,
In denying the authority of reason, law itself, in the service of will, came to be understood in terms of social reconstruction. When coupled with the method of positive science, the State and its government provide the possibility of the ongoing transformation of society and man.
Social sciences and positivist law replaced theology and reason as the foundation for expertise to carry out the will of the people. Marini concludes, “But for this to work, the people and their representatives would have to give up their reason so as to enable the social scientists to carry out their will. In short, they must give up the right to rule themselves.”
The administrative state consolidated itself after Lyndon Johnson’s Great Society. The congress gave up legislation born of deliberation for oversight of the executive branch administrative agencies it creates. The Judiciary then determines policy resulting from executive branch agency controversies. The people no longer find representation within the unelected administrative bureaucracy.
When our founders thought about law, they often thought along the lines of John Locke, who described law as a community’s “settled standing rules, indifferent, and the same to all parties,” emphasizing that to be legitimate a statute must be “received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies” between citizens.
Speaking of the rules that the administrative state encrusts upon modern congressional directives, Kesler says,
They operate not by setting up fences to protect each man’s liberty. They start not from equal rights but from equal (and often unequal) privileges, the favors or benefits that government may bestow on or withhold from its clients. The whole point is to empower government officials, usually unelected and unaccountable bureaucrats, to bless or curse your petitions as they see fit, guided, of course, by their expertness in a law so vast, so intricate, and so capricious that it could justify a hundred different outcomes in the same case.
Discussing the ramifications, Kesler says,
Faster than one might think, a government of equal laws turns into a regime of arbitrary privilege. A “privilege” is literally a private law. When law ceases to be a common “standard of right and wrong” and a “common measure to decide all controversies,” then the rule of law ceases to be republican and becomes despotic. Freedom itself ceases to be a right and becomes a gift, or the fruit of a corrupt bargain, because in such degraded regimes those who are close to and connected with the ruling class have special privileges.
Thus, Kesler reveals the sordid underbody of progressive administration.
Summing up, the administrative state exercises the science of law, i.e., “value judgments” or desire unaffected by reason, to social engineer the populace. The people must give up their reason to enable social scientists to carry out their will. That is, they must give up the right to rule themselves. Freedom itself ceases to be a right and becomes a gift, the fruit of a corrupt bargain, because only those who are close to and/or connected with the ruling class have special privileges.
To these things, Marini says,
In these ways, [the administrative state] subverts the aspiration for the fundamental ideal of government, that which makes human community possible, the desire for justice. As James Madison noted, “Justice is the [goal] of government. It is the [goal] of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.” When justice ceases to be the [goal] of government, the natural rights guaranteed by the Constitution, and liberty itself, become ever more precarious.
Nonetheless, all is not well within the administrative state. It seems that all modern bureaucratic governments are faced with the paradox of being less able to govern, the more completely they try to administer the social and economic details of life in society.
Justice, in its broadest sense, is the principle that people receive that which they deserve.
As Amity Shlaes shows in her cautionary Great Society: A New History, those trillions [of dollars expended by the 1964 War on Poverty] only made matters worse. As the clamor swells to compound LBJ’s mistake, Shlaes provides a sobering postmortem, dissecting how and why, when government presumes to reshape society, the result is likely to be gory.
This is the regime we are living in now. It seems that the progressives wish to level American society via, among other means, mostly peaceful protests (and the violence that is implied by this euphemism.) Do not let them. Vote for your children’s liberty and self-governance. Vote early if you can reliably.
Marini observes that Moreno “judges historical and political changes in light of an unchanging standard of the public good, or justice, an idea inherent in the founding documents, the Declaration of Independence and the Constitution.”
Summarizing one of our recent posts, Moreno says, “The United States is ruled by an establishment nowhere mentioned in the U.S. Constitution… Once a federal republic, we have become a centralized bureaucracy run by an unelected administrative class [that] combines legislative, executive, and judicial functions that the Constitution separated.” This transformation into a bureaucratic state has undercut federalism and the separation of powers. He also says that the congress, executive, and judicial branches are complicit with the states in the destruction of our constitutional republic.
Marini describes Moreno’s short account of the “four waves of the administrative state” this way,
The first (1900–1930), on behalf of an expansive national public sector, was spearheaded by activist presidential leadership within both parties. In the second (1930–1945), the New Deal established “the state as an entitlement-provider rather than a rights-protector.” The third wave (1945–1975), the “Great Society and the New Social Regulation” led “by a resurgent judiciary,” centralized administrative power on behalf of civil rights and the national regulation of social and economic problems. Finally, the fourth wave (1975–2010) revealed that the constitutional branches and political parties were unable to limit administrative rule…
The almost unbroken ascendancy of the administrative state in the last half of the 20th century undermined the political dynamic that made the separation of powers work… [and] it had become clear by the end of the century that administration had become the heart of modern government, almost impervious to political control.
In the Introduction to the book, Weber: Political Writings, the editor suggests that Weber believed that not only would we be subject to a bureaucratic “benevolent feudalism,” but to a stagnant ‘socialist’ society led by an elite interested only in rent seeking.
According to Marini, Weber wondered in despair, “what have we to set against this machinery, in order to preserve a remnant of humanity from this parceling-out of the soul, from this exclusive rule of bureaucratic life ideals?”
The progressive idea, simply put, is that the principled American constitutionalism of fixed natural rights and limited and dispersed powers must be overturned and replaced by an organic, evolutionary model of the Constitution that facilitates the authority of experts dedicated to the expansion of the public sphere and political control, especially at the national level.
The notion of organic change derives from Darwin. However, why are fixed principles overturned in the first place?
It was Machiavelli who established innovation (i.e., introducing change to laws and institutions) as a rule for governance.
The prince, [Machiavelli] said, must act “according to the times,” but in such a way as to change those times. To be successful a prince must be a new prince, one who doesn’t accept the status quo.
Even an established prince must take account of his rivals and enemies and not wait for them to displace him but move ahead of them “proactively,” as we would say, virtuously, as [Machiavelli] said. The new prince must strive to set the trend and make everyone else depend on him, so that he doesn’t merely follow the trend.
Is this piece of Machiavelli’s mind beginning to feel familiar to our modern eye and ear? Here, in the constant need for novelty and acquisition—our freedom in combat with our necessity—we have the germ of our modern politics, our business, our intellectuals, our arts, our morals.
Marini then observes, “If it has become impossible to preserve tradition of any kind, “rational” rule is modern man’s fate…It would appear that bureaucracy is the inevitable but also the inhuman result of revolutionary modernity.”
What set apart the American revolution from all others, but especially the French revolution, was its maintenance of continuity with England’s moral, religious, and intellectual heritage. The American revolution was a renewal of proven institutions, a re-constitution of government. The Constitution’s authors, our nation’s Founders, enshrined principles derived from reason, nature, and revelation in our founding documents.
These documents acknowledge that the people are created equal and endowed by their Creator with unalienable rights of life, liberty, and pursuit of happiness. These same people entrusted government with a portion of their rights in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty for themselves and their posterity.
Abandonment of these principles for a levelingidée fixe which reduces all Americans to servants of a self-elect class of leaders, is, unfortunately, what is in-process now. To this situation, Marini says, “the long-term political success of administrative rule would require delegitimizing the founding’s principles in order to establish the legitimacy of the administrative, née rational, state. That has yet to occur.”
Finally, John Marini concludes his review with this concern,
The verdict on America is not yet in, but as long as democracy includes the capacity to choose new leaders and transform political institutions, the rule by bureaucrat kings, however well organized and intended, remains precarious. If, on the other hand, the path of least resistance is to enjoy the benefits of rational rule rather than reestablish political rule, then only “the pitiless crowbar of events,” in Aleksandr Solzhenitsyn’s words, can reawaken the desire for freedom and self-government.
Echoing Marini’s concern, consider whether we will succumb to “bread and circuses” or obey the commandment:
“You shall not hate your brother in your heart, but you shall reason frankly with your neighbor, lest you incur sin because of him. You shall not take vengeance or bear a grudge against the sons of your own people, but you shall love your neighbor as yourself…” Leviticus 19:17-18ESV
and restore representative government through our ballot. You decide.
Administrative law is thought to be a recent threat to the American republic because it appeared in the last 120 years. Considered essential for decades by our leaders to handle the challenges of a complex and modern civilization, it was supposedly unforeseen by the framers of the U.S. Constitution.
Instead, Philip Hamburger proves that this corruption of our republic is very old. In his article, “The History and Danger of Administrative Law,” he says administrative law is the reinstitution of prerogative or absolute power of kings, now enforced by unelected bureaucrats. Hamburger says, “Rather than a modern necessity, it is a latter-day version of a recurring threat—a threat inherent in human nature and in the temptations of power.” It is potentially the end of representative democracy.
As many of us know, the U.S. Constitution authorizes three government powers—legislative power entrusted to Congress, executive power entrusted to the president and his subordinates, and judicial power entrusted to the courts.
Acts of administrative law or administrative power are binding or constraining edicts by the executive branch that replace Congress’s binding legislative power and the Judiciary’s legal adjudications.
Prerogative power
Hamburger uses England’s history to exhibit the prerogative power of kings. English kings were expected to govern through the laws of Parliament and rulings of law courts. However, those same kings acted on their own when they wanted to evade those laws and rulings. Such evasions were the exercise of prerogative power. The following table compares these two means of rule.
Rule Through Law
Prerogative Power
Kings constrained their subjects through statutes passed by Parliament
They constrained subjects through proclamations or decrees—similar to our rules or regulations
Kings repealed old statutes by obtaining new statutes
They issued dispensations and suspensions— similar to our waivers
Kings enforced the law through the law courts
They enforced their commands through their prerogative courts (e.g., King’s Council, Star Chamber, High Commission) — similar to our administrative courts
English judges used their independent judgment to resolve legal disputes
Kings expected judges to defer to their own decrees and to the holdings and interpretations of their extra-legal prerogative courts
Parliament had the power to make laws, the law courts had the power to adjudicate, and the king had the power to exercise force
Kings or their prerogative courts exercised all government powers, overriding these divisions (e.g., the Star Chamber issued regulations, and prosecuted and adjudicated infractions.)
Defenders of England’s prerogative power boldly described it as absolute power. Necessity, a king’s justification for prerogative power, was said to be not bound by law.
Never-the-less, prerogative power was opposed. In 1215, England’s barons codified in the Magna Carta that no free man could be summoned or imprisoned extralegally, the King must use processes of law as then defined.
In 1354 and 1368, Parliament enacted due process statutes to protect men from arbitrary questioning by the king’s council.
In 1610, judges opined that royal proclamations were unlawful and void when King James made law via proclamations. When the king demanded judicial deference to his interpretations of law, these judges refused.
In 1641, Parliament abolished the king’s Star Chamber and High Commission which engaged in extra-legal lawmaking and adjudication.
As English constitutional law developed, it prohibited extra-legal (i.e., outside the law,) supra-legal (i.e., above the law,) or consolidated (i.e., joint legislative, executive, and judicial) power.
These attributes are compared as exercised in England and America in the table below.
Absolutism Comes to America
Early Americans had experienced England’s prerogative power that sidestepped law and overruled legal rights. The framers barred absolute power by making the U.S. Constitution the source of all government power. Notwithstanding, absolute power has reasserted itself in liberal democracies including America.
While England and America defeated absolute power early-on, it found fertile ground in 17th and 18th century Prussia where it grew as bureaucratic administrative power. In the 19th century, Prussia vaunted their efficient bureaucracy that evaded constitutional law and rights.
American intellectuals flocked to Germany to study this new governmental innovation. During this time, American Progressives, disappointed with elected, deliberative legislatures poor speed and quality of results sought to impose administrative power as a matter of pragmatism and necessity.
In the 1920s, Progressives openly acknowledged the similarity between regulations issued by American administrative officers and binding proclamations issued by pre-modern English kings. However, they suppressed this discussion because it undermined their claims about administrative power’s modernity and lawfulness.
Thus, America reestablished absolute power in contravention of the Constitution. This matured over the past 120 years into what we see today.
Definition
England
America
Extra-legal power is exercised outside the law
It bound the public through edicts and proclamations, not laws and statues
Binds not through statutes but through regulations and not through court decisions but through agency adjudications
Supra-legal power is exercised above the law
Kings expected judges to defer to it instead of exercising their own independent judgment.
Judges defer to administrative power instead of employing independent judgment
Consolidated power joins legislative, executive, and judicial power
Kings or their prerogative courts operated this way
Administrative agencies consolidate power without due process rights
In conclusion, Hamburger states,
…The United States Constitution expressly bars the delegation of legislative power. The Constitution’s very first substantive words are, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The word “all” was not placed there by accident. The Framers understood that delegation had been a problem in English constitutional history, and the word “all” was placed there precisely to bar it.
…Administrativeadjudication evades almost all of the procedural rights guaranteed under the Constitution. It subjects Americans to adjudication without real judges, without juries, without grand juries, without full protection against self-incrimination, and so forth. Like the old prerogative courts, administrative courts substitute inquisitorial process for the due process of law… Administrative adjudication thus becomes an open avenue for evasion of the Bill of Rights.
Every alphabet executive agency exercises administrative power. Though agency bureaucrats are unelected, and therefore, unaccountable to the American people, some are unaccountable to the Congress and the President (e.g., Consumer Financial Protection Bureau (CFPB).)
Congress, having abdicated their constitutional deliberative and legislative responsibilities, now exercises “executive oversight” through establishment of, appropriation for, and investigation of these agencies. The constitutional Judiciary has abdicated its responsibility to interpret the law and now defers to agency decisions (e.g., Chevron deference.) offering little or no relief to the American people as the agencies exercise consolidated power.
We, as a nation, stand on the precipice of a dictatorship initiated 120 years ago. Its establishment will be our “Augustus” moment, when Romans realized that their republic had been transformed into a dictatorship.
I urge you to vote for the candidate who has cut regulations, reduced administrative power, and promises to do more for the benefit of the American people than any candidate in many decades.
Mandated Memoranda 