Friday, July 27, 2012

Cutting Down Every Law in England (and Altering the Deal)

The Man for All Seasons, from "A Man For All Seasons," relevant as ever.
Let me begin this post with an apology, on behalf of both of the proprietors of this blog: the Sons apologize for not updating this blog of late as much as one these days must. I have been particularly busy with running lately, and the Elder Son has concerns of his own to which has had to attend. But we are back now, and hope to begin this weekend making up for our absence.

One of the major downsides of missing a few days of blogging, I have found out, is that the news cycle moves ahead of you. And in the Age of Obama, that means that the President has found even more ways to expand executive power at the expense of the other branches, particularly Congress, since the Elder Son's post below. Even for those of us who follow this sort of thing closely, the President is making it hard to keep up--which might just be the point.

An executive order signed just the other day creating a special office to improve education for African-Americans serves as just one example. As was noted below, even if this is a justifiable end--I certainly think it is, but the Democratic Party's binding relationship with teachers' unions makes it impossible for Democrats to solve--executive fiat is not the means provided by the American system of government for this sort of problem. But since President Obama's first campaign slogan ("We Can't Wait") explicitly professed contempt for the impediments of a legislative branch partially controlled by another party, we shouldn't be surprised.

The typical conservative response to Obama's expansions of executive power has been a version of Thomas More's response to the naive William Roper in "A Man For All Seasons" (video here):
"William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"
In short, conservatives argue that Obama's executive unilateralism is creating a dangerous precedent not just for his presidency, but for all future presidencies. I agree with this wholeheartedly, but would like to take it a few steps further. I would argue that the sort of discretionary power Obama has chosen to wield in this pre-electoral period not only serves as bad precedent, but also that it rejects centuries of inherited wisdom. What follows is a gross oversimplification, but the point still stands.

For much of the period of time from the collapse of the Roman Empire to the Renaissance, known in the popular imagination as the Middle Ages, there was essentially none of what we today take for granted as "civilization." Defenseless peasants sought protection from lords to defend against marauding bands, and in exchange became serfs, tied to the land they inhabited. As unfair as this arrangement may seem to modern eyes, it actually provided not only protection for the serfs, but also contained the germ of contractual, I-give-you-some-liberty-you-give-me-some-security governance which we also take for granted today.

This process could only really take root, interestingly, when powerful monarchs began to take charge of well-defined nation states in the few hundred years before the Renaissance. But these monarchs, at least in Britain, were not all-powerful. In 1215, the Magna Carta that nobles forced King John to sign began a long process of political development that ultimately culminated in a definite, well-rooted set of restrictions on the power of the British monarch--he could not simply do whatever he wanted, whenever he wanted, how he wanted to do it. From this, the relatively young idea of a "rule of law" emerged--that is, a culture of well-defined, agreed-upon, and widely-disseminated legal certainty. Throw property rights, a culture of industriousness, and access to natural resources into this mix, and you've got the recipe for the Industrial Revolution, which, despite its shortcomings, has done more to raise the living conditions and standards of a greater amount of people than any single event in history other than perhaps when man first learned to grow crops.

Now, I do not wish to argue that the President's actions herald a return to the Middle Ages, or even to the Renaissance. The point of that short history lesson was to demonstrate the importance of a predictable legal climate for the creation and maintenance of prosperity on a wide-scale--for the first time in history, people could be reasonably sure that the government would not arbitrarily and unjustly seize property, at least not without just compensation. While Obama and his bevy of regulatory agencies aren't doing that (yet), given the sort of uncertainty that Obama himself and his regulatory agencies have injected into the marketplace, is it any wonder that the economy stubbornly muddles along at 1.5% growth?

But I would like to take this idea even a few more steps--fortunately, no history lessons. Most conservatives make the argument that Obama's widening of the executive purview serves as bad precedent, but also opens the possibility for, say, a President Romney to repeal Obamacare on his own authority should Congress prove unwilling. But what if the point of all these executive orders, all these "internal memoranda," is to ensure victory in 2012 as part of a wider scheme to make a Republican representing mainstream conservatism simply unelectable? Had I grown up in another political era, than I would reject that theory as an unsubstantiated conspiracy, but when each of these executive orders seems designed to appeal to a specific part of the Democratic base--contraception mandates for single women, loosening welfare-to-work requirements for recipients of government largesse, etc--then I get suspicious.

What frightens the Sons of Cincinnatus perhaps most about all of this, however, is that Congress either isn't or can't really do much about it. The Founders may have intended for there to be "energy in the executive" as a means of redressing many of the problems with the Articles of Confederation, but that the checks and balances would work, that no one part of the government could overwhelm the other two, was a tacit assumption therein. Here's Federalist No. 51 (all the Federalist papers were written in defense of the Constitution; this one deals with conflicts among different parts of government).
"Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

Without this, the rule of one substitutes the rule of law, and we shall have no choice but to pray to some accountable authority somewhere that he does not alter the deal any further:

                                 

Indeed, if the legislative ambition does not counteract executive ambition, if the executive refuses to play fairly, then what isn't possible in the Age of Obama?

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