On December 17, 2010, Bouazizi tried to stop a policewoman from stealing his fruit. The woman and some other officers then hit the vendor with a baton, pushed him to the ground, tried to steal his scale, and slapped him in the face. Fisher related Bouazizi’s pained response: “‘Why are you doing this to me?’ he cried.... ‘I’m a simple person, and I just want to work.’” After being told at city hall that he could not register a complaint about the incident, Bouazizi immolated himself in an anguished act of protest.2
Bouazizi’s suicide sparked widespread protests in Tunisia that toppled the country’s dictator, Zine el-Abidine Ben Ali, and then spread throughout the region. The next strongman to fall was Hosni Mubarak in Egypt, a country that, much like Tunisia, had failed to develop even rudimentary property law protections. In 2004, 92 percent of Egyptians held real estate without legal title, meaning virtually the entire economy lacked any common mechanism for selling, buying, or borrowing against landed property. According to Peruvian economist Hernando de Soto, author of The Mystery of Capital, this lawlessness created a terrifying state of nature in Egypt, with businesses and property owners living in constant fear that government officials or someone else would seize their property.3
This problem is hardly confined to the Middle East. From southeast Asia to sub-Saharan Africa, deficient property rights protections have bred corruption and economic stagnation. And even democratic government is no guaranteed cure for these problems. Following the collapse of Latin American dictatorships in the 1980s and the fall of Eastern European Communist regimes shortly thereafter, many Western observers were surprised at how slowly free enterprise spread. As de Soto explains, these states may have embraced capitalism, but they lacked its necessary legal underpinnings:The reason [capitalism] doesn’t work for the majority is because the system can only work with property rights. Markets and capitalism are about trading property rights. It’s about building capital or loans on property rights. What we’ve forgotten, because we’ve never examined the poor, we’ve sort of thought that the poor were a cultural problem, is that the poor don’t have property rights. They have things, but not the rights.
And when you don’t have the rights, you don’t have a piece of paper with which to go to market. You don’t have a legal system that undergirds that piece of paper and allows it to circulate in the market.4
One hopes that the Tunisian and Egyptian people will finally get the chance to choose their own leaders. But even if they are democratically elected, if those leaders fail to firmly secure private property rights, we should expect to see no end to the corruption, lawlessness, and lack of economic opportunity that provoked the rebellions against their predecessors.
CONTEMPORARY THREATS TO THE RULE OF LAW
Today, some of the biggest threats to our liberties derive from abuses of the rule of law—just as was the case in our Founders’ time, as shown in the grievances listed in the Declaration. Specifically, the rule of law faces three principal threats:• The corrupting influence that Big Government exerts on government officials themselves.
• The requirement in ObamaCare that all Americans purchase health insurance.
• The federal judiciary’s claim of judicial supremacy and its subjugation to radical secularism.
This chapter will explain each of these threats and why each marks a dramatic departure from the Founders’ understanding of the rule of law.
BIG GOVERNMENT’S CORRUPTION OF THE RULE OF LAW
The Founding Fathers had a precise term to describe the kind of backroom deal-making and vote-buying we witnessed in Congress during the passage of ObamaCare—“corruption.” The Founders used that word not only to describe outright criminal behavior, but also to refer to political acts that corrupt our constitutional system of checks and balances. They frequently accused the British Parliament of corruption, citing practices such as the Crown’s use of “placemen”—members of Parliament who also held royal appointments, or were granted lucrative pensions by the Crown, in exchange for supporting the king’s agenda.
In The Creation of the American Republic, Gordon Wood, a scholar of the American Revolution, describes the roots of the Founders’ conception of corruption:When the American Whigs described the English nation and government as eaten away by “corruption,” they were in fact using a technical term of political science, rooted in the writings of classical antiquity, made famous by Machiavelli, developed by the classical republicans of seventeenth-century England, and carried into the eighteenth century by nearly everyone who laid claim to knowing anything about politics. And for England it was a pervasive corruption, not only dissolving the original political principles by which the constitution was balanced, but, more alarming, sapping the very spirit of the people by which the constitution was ultimately sustained.5
Wood then describes the growing sentiment in colonial America that its mother country was corrupt. Despite the reforms of the Glorious Revolution [of 1688], the Crown had still found a way to “corrupt” the supposedly balanced English government:England, the Americans said over and over again, “once the land of liberty—the school of patriots—the nurse of heroes, has become the land of slavery—the school of parricides and the nurse of tyrants.” By the 1770’s the metaphors describing England’s course were all despairing: the nation was fast streaming toward a cataract, hanging on the edge of a precipice; the brightest lamp of liberty in all the world was dimming. Internal decay was the most common image. A poison had entered the nation and was turning the people and the government into “one mass of corruption.” On the eve of the Revolution the belief that England was “sunk in corruption” and “tottering on the brink of destruction” had become entrenched in the minds of disaffected Englishmen on both sides of the Atlantic.6
More generally, professor John Wallis at the University of Maryland explains that such corruption occurs when “a group of politicians deliberately create rents by limiting entry into valuable economic activities, through grants of monopoly, restrictive corporate charters, tariffs, quotas, regulations, and the like. These rents bind the interests of the recipients to the politicians who create the rents. The purpose is to build a coalition that can dominate the government.”7
The result, Wallis says, is the creation of “groups within the government whose interest ‘is that of men attached to the government; or to speak more properly, to the persons of those who govern; or, to speak more properly still, to the power profit, or protection they acquire by the favour of these persons, but enemies to the constitution.’”8
Congress today is mired in this sort of corruption, as its independence is compromised by politicians who no longer serve the people based on their independent judgment, but act instead to create rents, restrict economic activity with regulations, form constituencies who depend on their largess, and of course, “build a coalition that could dominate the government.” For example, let’s examine a mere partial record of the maneuvers undertaken to pass ObamaCare, some of which had to be abandoned after provoking a public outcry:• Louisiana senator Mary Landrieu’s vote for ObamaCare was secured after her state was granted an additional $300 million as a Medicaid “fix”—a transaction infamously known as the “Louisiana Purchase.” Following widespread criticism of the deal, Landrieu defiantly responded, “I am not going to be defensive.… And it’s not a $100 million fix. It’s a $300 million fix.”
• For his vote, Senator Ben Nelson secured an additional $100 million in Medicaid funding for Nebraska, now known as the Cornhusker Kickback.
• Senator Bill Nelson approved ObamaCare after demanding that Florida’s senior citizens be spared from the billions in cuts to the Medicare Advantage program that would affect seniors everywhere else. Nelson’s bribe is called Gator-Aid.
• In final negotiations to secure key votes in the House, unionized employees watered down higher taxes on their “Cadillac” health plans.
These are textbook examples of what the Founders called corruption—and we need to expo
se it, denounce it, and fight it just as passionately as the Founders did. Such corruption robs legislators of their freedom to follow their own conscience, listen to the will of the people, and protect the citizens’ liberties. Instead, they come to rely on their own power to direct special benefits and payments to favored recipients in exchange for the recipients’ political support. Crucially, the prevalence of these sordid transactions in Congress diminishes the rule of law, as politicians increasingly gear their activities toward passing laws that privilege their most powerful and influential supporters.
BIG GOVERNMENT’S CORRUPTION OF THE ENFORCEMENT OF LAWS
The enforcement of broad-based legislation like ObamaCare presents another major form of Big Government corruption of the rule of law. Today, elected lawmakers and judges no longer play the primary role in working out the details of the laws that regulate most aspects of American life. Since the Progressive Era, beginning at the turn of the twentieth century, many of these essential functions have been delegated to bureaucrats who are neither directly accountable to the American people nor insulated from politics.
These bureaucrats should be non-partisan technocrats who faithfully implement laws according to the directives of Congress. But too often, they abuse their discretion to effectively create their own laws. This is accomplished through increasingly intrusive means, including through regulations, interpretive notices, adjudications, bulletins, permits, licenses, waivers, and private letter rulings. In fact, administrative agencies have become so powerful, they are now widely referred to as a fourth branch of government.
For example, the Federal Trade Commission has been “empowered and directed” by Congress “to prevent . . . unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce” [15 U.S.C. § 45(a)(2)]. But Congress has left it to the FTC to promulgate regulations defining “unfair or deceptive acts or practices,” and the commission has produced pages of regulations identifying unfair practices in everything from blog posts (16 C.F.R. 255.5) to imitation leather (16 C.F.R. § 24.2).
In addition to making the rules, the FTC interprets and enforces them. If the FTC decides that a person or business is not following its regulations, it can initiate cease-and-desist proceedings against the person [15 U.S.C. § 45(b)]. The person is then required to appear at a hearing, where one FTC lawyer acts as a prosecutor and presents evidence against the accused to another FTC lawyer, who acts as an administrative law judge and decides whether the evidence is sufficient to establish that the FTC’s rules—written by another FTC lawyer—have been violated (16 C.F.R. §§ 3.2, 3.41). If the “judge” finds a violation, he may enter an order requiring the accused to cease and desist from any practices that are determined to be unfair (16 C.F.R. § 3.51). Violating a cease and desist order can result in civil penalties of up to $10,000 per day and additional penalties if the violation is intentional [15 U.S.C. 45(l)-(m)].
The “judge’s” decision can then be appealed to the FTC commissioners who decide the appeal by majority vote, like an administrative version of the Supreme Court (16 C.F.R. § 3.54). After completing this often lengthy administrative process, the accused can appeal the FTC’s decision to a real federal court, established under Article III of the Constitution, but the court’s review of the FTC’s decision is highly deferential and quite limited.
The FTC, like many administrative agencies, is thus a miniature government unto itself, with its own legislature, executive, and judiciary. The Constitution, of course, contains no provision for creating such mini-governments, and this is no accident. In Federalist no. 47 James Madison warned that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many … may justly be pronounced the very definition of tyranny.” The Constitution’s separation of powers was supposed to guard against precisely this kind of concentration of power.
Agency decision-making is often highly politicized. Agency heads are typically Washington insiders with good political connections, and are often positioning themselves to run for local or national political office or to become lobbyists. In order to advance their own political careers and also to protect their agency’s budget, senior agency bureaucrats are closely attuned to the needs of the president, Congress, lobbyists, and the rest of the Beltway scene. But they have no constituency among U.S. citizens, no direct accountability to voters, and little contact with the average American.
By giving these agencies such wide latitude to interpret and implement laws, Congress has essentially outsourced a significant part of its legislative authority, leaving the courts to decide whether to take a share of that power for themselves or leave it to the agencies. In doing so, Congress knows it can always reclaim this authority when it wishes. But the main reason Congress does this is, paradoxically, because it makes Congress more powerful.
Here’s how it works: the Founders intended lawmaking to be difficult, with proposed bills requiring the approval of three different entities—the House of Representatives, the Senate, and the president—to become law. This structure was designed to produce moderation and compromise—a system in which laws were adopted slowly and only in response to a widespread consensus in their favor.
By outsourcing the task of devising a law’s fine details, Congress creates more opportunity to pass new laws. That’s because the more detailed a proposed law is, the more people might find something in it they oppose. If enough details offend enough people, the bill doesn’t get passed. So legislators craft laws with vague language reflecting broad, popular principles. They punt the difficult part of lawmaking—working out the details in a way that is fair, sensible, and acceptable to a majority—to agencies.
Moreover, this process allows congressmen to avoid accountability. When a law proves unpopular, Congress calls a hearing to berate whichever unfortunate bureaucrat heads the agency that implements it. Congressmen then get to swoop in and save the public from the agency’s high-handedness—never mind that Congress gave the job to the agency in the first place.
The administrative state has dramatically expanded the federal government since the administrations of Theodore Roosevelt and Woodrow Wilson. Appropriating many of the powers previously reserved to Congress and the courts, the administrative state essentially makes the laws, interprets them, and enforces them—a significant and growing departure from the rule of law principle that has historically made our nation the freest and fairest in the world.
THE RULE OF LAW AND OBAMACARE
ObamaCare is a radical departure from our tradition of rule of law, which holds that Congress can only exercise those powers clearly enumerated in Article 1, Section 8 of the Constitution.
ObamaCare’s so-called “individual mandate,” which requires every American to procure “minimum essential [healthcare] coverage” or pay a financial penalty, is an unprecedented expansion of federal power. The government has assumed the authority to deem you a law-breaker if you don’t buy a specific product—health insurance—according to its decrees.
When a Democrat-controlled Congress approved ObamaCare, the bill’s supporters argued that the individual mandate was constitutionally justified under the Commerce Clause, a provision that gives Congress the power to “regulate Commerce … among the several States.” The Founders designed this clause to prevent American states from imposing tariffs on each other or engaging in other restrictive trade practices that would hamper the economy. But in the last century, Big Government advocates have misused this stipulation to justify federal regulation of energy, trucking, financial services, and assorted other activities that cross state lines.
ObamaCare takes this overly broad interpretation of the Commerce Clause to an absurd extreme.
If the government can coerce individuals—by threat of fines—to buy health insurance, what is stopping it from forcing Americans to buy other products? For example, energy supplies regularly cross state lines. What’s to stop the federal
government, in the interests of “national energy security,” from requiring every homeowner to purchase some percentage of his electricity from the kind of expensive renewable sources whose cultivation is a top priority of the Obama administration and congressional Democrats? Or consider General Motors. Having become deeply involved in GM’s operation, the federal government has a vested interest in the company’s success. So what is stopping it from requiring all Americans—under threat of penalty—to buy a GM car?
The specter of unrestrained federal power embodied in ObamaCare has provoked a sustained, nationwide backlash. Millions of Americans showed their disapproval during the 2010 elections, expelling the Democrats from their House majority, reducing their Senate majority, and increasing Republican representation in state legislatures by a record 680 seats (with the GOP gaining an additional twenty-five seats due to postelection party switching by former Democrats).
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