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Just Another Irony of Our Liberalism

‎It is a great irony that the Founders of our nation set up a system that deliberately prevented the masses of people from influencing policy directly, and that we have worked so hard over the past hundred-and-fifty years or so to subvert that scheme in favor of greater democracy -- because, in fact, we have incorrectly taken it on board that democracy is the only morally just position, and greater democracy is practically synonymous with higher morality -- only to land ourselves in a position where more people than ever can vote, but most of the actual decisions are made by small numbers of unelected bureaucratic "experts".

Put differently: While reforming our government to give the masses electoral power, we have deformed it to hand actual power off to the chosen few.  

While U.S.-centric, I believe the comment applies to many other nations as well. Tell me otherwise in the comments, if you like.

Comments (13)

Another irony is that democracy causes people to tolerate abuses that they'd never tolerate in an alternative system. Kings have been beheaded for things less practically tyrannical (toward the masses) than what we frequently tolerate today.

I'm not sure that the _reason_ that the vote has been expanded to ever-greater numbers of people is that most Americans think democracy is the only moral form of government. Though, in fact, most Americans do think that. But usually there has been some reason or other (however weak) given for expanding the vote in that direction. Hence, the Vietnam War was used to push for lowering the voting age to 18. After all, I suppose one could believe (incorrectly, I would add) that democracy is the only just form of government while at the same time believing that the only citizens who should vote in said democracy should be people over the age of, I dunno, thirty-five.

The irony you note is completely correct, however. And I think an argument can be made that the rule-making powers of the bureaus and agencies are unconstitutional. In fact, the founders probably would have thought them unconstitutional because the founders intended to make Congress (however elected) responsible for the laws created. Our federal bureaucracy represents an abdication of duty on the part of the legislative branch. And that's _aside_ from the issue of federalism--whether these areas are properly federal government issues at all--which adds yet a further layer of unconstitutionality.

First, our Founding Fathers hated democracy. They did NOT create a pure democracy. They created a psuedo-republic. Say the pledge of allegiance "...and to the Republic, for which it stands". What is a Republic?

Second, you had to be a propertied person to vote. They purposely restricted voting to ONLY those that had property. Third, the Senate was voted by State Legislatures--not by the people. President Andrew Jackson gave the vote to all men thus destroying what little aspects of republicanism remained. In 1913, suffrage was given to women and the Senate was changed that people now could elect senators. That destroyed the last vestiges of mixed government.

Before discussing anything on politics---one has to be familiar with our classical heritage or at least an armchair classicist. Socrates and Plato both excoriated democracy and said tyranny arises solely from democracy. I commend Erik von Kuenhelt-Leddihn's book, "Liberty or Equality" where he shows that most intelligentsia reject democracy. Both Plato and Aristotle teach that democracy is the bad form of government. It was and always shall be.

For a clear understanding of what a true republic is and how the definition of it has changed during the Renaissance, and the proofs from which I speak about, I point to my work:
The Classical definition of a republic

It explains all facets of republicanism, classical and modern. One can compare what the FFofA did and what is traditional republicanism. There are over 150 references.

You are correct that an elite operate a democracy. A democracy can never truly exist. (Because it is against the Laws of Nature.)

Hi Lindsay. You know I'm not arguing against your points 1 and 2, right?

Lydia, you're right: I was noting an irony, not suggesting a cause-and-effect relationship.

I was just thinking of the use of "because" where you said

"we have worked so hard over the past hundred-and-fifty years or so to subvert that scheme in favor of greater democracy -- because, in fact, we have incorrectly taken it on board that democracy is the only morally just position, and greater democracy is practically synonymous with higher morality..."

It's actually an interesting question as to what role has been played in the determination in U.S. history in the 20th century to extend the franchise to more and more classes of people by the abstract commitment to pure democracy as the highest political good. I certainly wouldn't deny that there has been some connection.

I get that now. Yes. I am clarifying the issues you kept secret.

Why we are pushing democracy in this country is:

"Democracy is the road to socialism." Karl Marx

"Democracy is indispensable to socialism." Vladimir Ilyich Lenin

"Modern Socialism is inseperable from political democracy." Elements of Socialism, pg 337.

"The view that democracy and Socialism are inwardly related spread far and wide in the decades which preceded the Bolshevist revolution. Many came to believe that democracy and Socialism meant the same thing, and that democracy without Socialism or Socialism without democracy would not be possible." Socialism, Ludwig von Mises, pg 67.

Adolf Hitler saw this as a young man in Vienna when he encountered Social Democracy:

"The Western democracy of today is the forerunner of Marxism which without it would not be thinkable." (Mein Kampf, pg 78. Manheim translation, Mariner paperback)

Democracy is the vehicle for Marxism. America is now a Marxist country. Woodrow Wilson sent our troops to Europe to make the world "Safe for democracy". (that means Marxism)

only to land ourselves in a position where more people than ever can vote, but most of the actual decisions are made by small numbers of unelected bureaucratic "experts".

I don't know exactly what you are thinking of here. In my estimation, the real power tends to sit in the hands of the policy makers, which consists of (in different senses but still real), (a) the President and certain ones of his staff (not, typically, his cabinet, but his chief of staff and 2 or 3 closest advisers), the leading 15 or so members of Congress who more or less control the agenda and the critical committees, (and, thus, the top committee staffers as well), the lobbyists who have the ears of those 15 or so top members of Congress, and the core media people who can manipulate vast swaths of the rest of the media to sit up and bark when told. Oh, and judges who decide how laws are to be interpreted. None of these are bureaucrats properly speaking.

As a second rung, and completely at the disposal / whim of the group above, there are a much larger group of bureaucrats who put into place rules for carrying into practice the policies made by those higher up. These are (mostly) civil servants or military lackeys of policy handed to them. Civil servants who make regulations and lower down activities (forms, procedures, etc) almost never intentionally push out from the existing laws without fairly clear approval from their masters above.

I have had to watch the regulatory process in action, where a group of civil servants will start with a new law passed by Congress, and build it up into a set of clearly delineated set of minute practical applications for carrying out that law. Where the law itself is not particularly "political" (i.e. the subject is relatively bi-partisan and in no way a political hot potato), so far as I have seen the civil servants bend over backwards to make the law "work" in a coherent, functioning process, while they try to establish procedures, forms, and set forth examples that explain exactly how to stay within the law and what things won't fall within the law. Even when the law is, itself, pretty poorly written, the rule makers try to make it work well. (And when Congress hands them a very badly designed law, the civil servants will attempt to put it into practice while at the same time requesting a "technical correction" from Congress). After they put together a proposed regulation, they publish it and invite comments for corrections, errors, stupidity, etc. So people (including the average joe) can say "that's not what the law said" or "that's not carrying out what Congress meant" if they want, and that becomes part of the permanent record. I have made a number of comments and requested changes, some of which were adopted in the final regulations.

That's what I have seen in not-very-political areas. I have not observed the process in the more politically charged matters - like the HHS rules for the Obamacare act.

What gets the typical civil service rule-making into problems is that they make rules SO DARN PICAYUNE. And this, as far as I can tell, is mostly because (a) people try to wiggle their way around the clear intent of various laws with oddball (often tricky) practices, and (b) Courts decide cases in relatively irrational ways, and they are trying to head off either or both of these. There are so many different laws, with so many potentially conflicting parts to them already, that every time Congress makes a new law on a subject it has a rather significant likelihood of accidentally running roughshod over some tangential regulatory rule that they didn't actually intend to dislodge, unless Congress writes it with tons of their own picky little details to carve out this, that, and the other exception to whatever new idea they have. And then the civil servants have to write new regulations to incorporate all those new carve-outs with new examples, new forms, new procedures, etc. And all those details create a labyrinth of nonsense to the average person.

The problem is a vicious cycle: Congress is making FAR TOO MANY laws, with FAR TOO MANY areas under federal control, and far too many details in such laws. The Executive branch is making far to many picky little regulations and procedures for a healthy system, and the courts decide far too many cases on the basis of trying to create some cute (but ultimately fraudulent) so-called "consistency" with the law they have been dealt and the outcome they want (which they think is just, and because they think it just, they think the law must somehow provide for it), And Congress and the executive branch react to the actions of the others with yet MORE laws, rules, and procedures.

Try this, Tony: If we voted for people who framed laws to which citizens are held, we could at least say that we wield power through the representatives who represent our direct interests. Instead, we are only voting for people who hand off responsibility to a rule-making organization -- the EPA, Homeland Security, the SEC, the DOEnergy, the DOEducation, HHS, ad nauseam -- which is a very important layer of abstraction removed from the power that controls our lives.


I think it's interesting to reflect that the founders were *not* advocates of direct, pure, popular democracy and yet I think we can say with some confidence that they would be horrified by our regime of intrusive, unelected bureaucracy. One wonders whether they would be most horrified by the level of intrusiveness of the rules, the fact that Congress isn't having to make and "own" the rules directly, or the fact that so many of the rules are being made at the federal level in direct contravention of the 10th amendment. Probably all three.

I'm going with "all three" on that one.


I'm so glad you are onboard -- suddenly there is an embarrassment of riches at W4!!!

Wheeler's back!!!

Who could ask for more!!!

Seriously though, I love this little post and I just wanted to add to Tony's and Lydia's comments about the 'Administrative State': one of the most important books on this subject came out this year and I haven't had a chance to get to it yet but it has received very favorable reviews and I've read other stuff by this author (Philip Hamburger). Here is an excellent review of the book and overview of Hamburger's argument:


And here is just a taste of the review:

His fundamental thesis is that administrative law is profoundly antithetical to any conception of law, not just the conception of law articulated in the U.S. Constitution. The crisis is not simply a constitutional crisis. It is a crisis of law itself. We risk moving from a nation governed by law to a nation of absolutism—the very absolutism that it took centuries for Britain and America to shed.

Specifically, Hamburger argues that the rise of binding administrative power represents the recurrence of extralegal, supralegal, and consolidated power. Administrative law is extralegal because it is a binding power exercised outside the law. That is, it binds citizens not through the laws and the orders of the courts, “but through other sorts of commands and orders” such as administrative legislation and adjudication.

Administrative law is supralegal because these administrative commands and orders are considered to be above the law, and therefore not subject to the scrutiny of judicial review. Despite the fact that judges “have an office or duty that requires them to exercise their own, independent judgment,” they have accepted the legitimacy of extralegal administrative power and even constructed a regime of judicial deference around it. By substituting appeals from administrative proceedings for adjudication through the courts themselves, “the judges have come to participate in the administrative regime, and they thereby have been drawn into circumstances that invite deference” to administrative agencies. The result is “an entire jurisprudence of deference” in administrative law, Hamburger argues, and “not even James I got such consistent deference to his proclamations, regulations, interpretations, and adjudications” as agencies get today.

Hamburger’s argument contains a twist on previous accounts of the administrative state: in his view, the administrative state is not a new phenomenon but the return of a very old one. He alerts us to “the danger that the government already has returned to the preconstitutional past.” While “the details of absolute power in England may at first seem merely historical, it gradually will become apparent that they are disturbingly like the details of contemporary American administrative power.” Much of the first half of the book explains how developments in American administrative law parallel the British Crown’s assertion of prerogative powers in the centuries prior to the American Revolution.

One way to understand this argument is to revisit the Declaration of Independence, and read the often-overlooked indictments that comprise the middle of the document. The very charges brought by the Americans against the British in July 1776 are replicated, Hamburger argues, by contemporary administrative power.

“Giving his Assent to their Acts of Pretended Legislation”

Hamburger argues that “contemporary administrative legislation returns to an extralegal regime of lawmaking. Like the old prerogative bodies, administrative agencies act outside the law, the legislature, and the legislative process to impose binding rules and interpretations. The agencies thereby return to extralegal governance, which is precisely what constitutional law developed in the seventeenth century to prevent.”

Although they are euphemistically called “rules,” many agency rules are legally binding on citizens and have the same force and effect as laws passed by Congress. Calling a law by another name makes it no less a law. Agencies’ rules, to borrow from the Declaration, are “acts of pretended legislation.”

Instead, we are only voting for people who hand off responsibility to a rule-making organization

Jake, I know how we are doing it now because I have seen it up front. What I don't have much perspective on is whether we used to do it differently. Back in 1830 or 1850, did the Bureau of whatever not make regulations that "implemented" laws into more particularity and detail? That's the activity we are debating, yes?

we wield power through the representatives who represent our direct interests.

I think that in theory the bureaus are restrained by 2 forces: the first is that their rules are subject to Congressional oversight, so the people who make the laws are supposed to be able to tell them "that's not what we said". The second is that the rule-making process includes public draft and comment period so "the people" can weigh in directly.

In practice, neither of these is really all that effective a restraint simply because of the sheer number of rules already in place and the number of new ones coming down the pike all the time. Also because most of the egregiously off-kilter rules do, in fact, push an agenda that a sizable portion of "the people" actually want pushed, for whatever reason. But I am not sure Congress itself really does have a good mechanism for telling the administrative department "you are not implementing what we wanted" whether that implementation is by regulation, new forms, sub-departments with their own agendas, etc. I mean, Congress can write a new law, or it can withhold an appropriation, but that's about it. The latter (again in theory) is a powerful mechanism, but I get the sense that it is like a nuclear option: sure you can use it, but it amounts to all-out war and don't expect to get ANYTHING done in government for the next 2 years (or more).

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