Sunday, July 1, 2018

Distrust of Government

Minute Man

I’ve written before1 about how for the past four centuries America, and the New World in general, simply by existing became an escape valve for Europe’s population of disenchanted individualists. And now, by extension, we have become the magnet for people from all over the world who want more freedom, greater opportunity, and a better life. This drive for freedom and what my mother used to call “inde-goddamn-pendence” is not just a casual or passing attitude, it’s written into our genes from ancestors who voted with their feet long ago—or maybe in just the previous generation.

Our founding fathers, the authors of the American Revolution, also known as the American War for Independence, had a profound distrust of government. It wasn’t just distrust of a distant and unresponsive king and parliament, “taxation without representation,” and the economic strictures and political disadvantages imposed on the thirteen colonies because they were, after all, possessions and not the same as English counties and boroughs with direct representation in Parliament and ancient rights under English law. It wasn’t a bad experience or two with the occupying force of British redcoats, having to quarter them in civilian homes, or enduring the Boston massacre, and later having to fight a war in which the might of the British nation—or as much as it could spare at the time—came down on ragtag bands of freedom fighters and a woefully underfunded and ill-equipped Continental army.

The distrust was in large part the heritage of dissenters, deportees, transportees, indentured servants—and later freed slaves—who had seen the iron rule of law at work in the hands of men grown too well-stuffed and powerful to care about their neighbor’s plight. Of people who wanted a place less crowded, less restricted, less governed, in which they could live where and how they wanted. A large measure of this dissatisfaction was also religious—carried by people with different ideas who were escaping an established Church of England that poorly tolerated unconventional practices and viewpoints—and gave rise to local congregations and enclaves of Puritans, Calvinists, Quakers, the Anabaptist Amish, and later the Mormons or Latter Day Saints. But the distrust went beyond religion to any established institution that would impose that iron rule with no easy or direct line of escape for the freethinker.

Distrust of government as an institution is written into the U.S. Constitution. The basic structure is arranged to provide those famous “checks and balances.” The Congress, however structured and elected, can only write the laws. The President, however supported by cabinet and other administrative positions, can only enforce the laws as written. And the Supreme Court, whose members are nominated by the President but must be confirmed by Congress, can only rule on the soundness of the law in practice, once someone has brought a case contesting its actual application. No one branch of government is meant to be all powerful or able to take action except in the context of the other two.

Today, as in the past, various Presidents have sought to bypass Congress through “executive orders.” While the Constitution makes no specific reference to executive orders, they are usually justified as part of the broad powers that the Constitution gives the President as chief executive and Commander in Chief. Still, they are not meant to supersede the power of Congress to make law.

Similarly, the Constitution has no provision for the vast federal bureaucracy that has grown up around the President’s cabinet posts and its various departments like Agriculture, Commerce, Education, Energy, Health and Human Services, Housing and Urban Development, Interior, Labor, Transportation, and so on. Defense and Homeland Security would appear to be the only posts necessary to the President’s role as head of the armed forces. State and the Treasury would also appear necessary to the chief executive’s function as representative to other nations of the world. But the rest of the cabinet has grown up over the years—mostly during the 20th century—to become interpreters and implementers of the laws passed by Congress.

These days we have the spectacle of laws passed with ever more pages of detail, requiring ever more interpretation by the executive branch. Simple laws that can fit on a page or two and be easily read and understood by the average citizen are a thing of the past. Our country’s book of administrative law, the Code of Federal Regulations, as published in the Federal Register, now adds about 80,000 pages a year. It’s a commonplace thought that everyone, without doing anything out of the ordinary or intentionally criminal, is guilty of something under current federal law. All the more to put the average citizen in his or her place.

I believe the founding fathers would regret this state of affairs.

In part their distrust of government was based on the founders’ own experience with what they called “factions,” which today we would call “parties” or “partisanship.” Not only is each branch of government set as a check and balance on the other two as a matter of design but also as a prevention against one group gaining control of the levers of power and using them without fear of obstruction, impediment, or retaliation. The members of Congress are—or were—supposed to be impermanent, serving for terms of two or six years, and capable of being voted out if they failed to do the job the public wanted. The President nominates members of the cabinet but they must be confirmed by Congress, as are the heads of major bureaucracies like the Central Intelligence Agency. The U.S. Civil Service, representing non-appointed, non-military civilian government employees, was only established by law in 1871. But these positions have traditionally been and are supposed to be filled by competitive hiring based on personal merit—and not, as in the conspicuous case of corruption in New York’s Tammany Hall, as a reward for partisan support.

The founders’ respected majority opinion, but they also looked out for the rights of the minority. People and political positions that lose a legislative battle by a vote of 49% to 51% are not to be automatically ground under, hunted down, or led to the guillotine.2 And important votes, such as overriding a President’s veto, have to be settled by more than a simple majority. The Constitution also allows each body to set its own rules for operation, and the Senate early on—that is, from about the 1850s—allowed minority objectors to a piece of legislation to filibuster it, or hold the floor and delay the vote for as long as their legs and their breath held out.

And finally, the Constitution’s own Article VII allows for its ratification by the states. That is, the new government under the Constitution could not simply impose itself on states that did not want to be ruled by this document. They had to choose to abide by its conditions.

Distrust of government is thickly strewn through the Bill of Rights, too. These first ten amendments to the Constitution were proposed after the battles for ratification in the late 1780s and specified federal guarantees to individual citizens. The people could speak their minds and worship how they pleased; defend themselves against tyranny; refuse to house soldiers except as prescribed by law; be secure in their persons, houses, papers, and effects from unreasonable searches and seizures; be free from double jeopardy and self-incrimination; enjoy the right to a speedy public trial before an impartial jury and to confront their accuser; be free of excessive bails and fines, and from cruel and unusual punishments; and enjoy all the rights and powers not enumerated in the Constitution.

The Bill of Rights staked out the ground where the new government could operate—quite narrowly, in fact, when compared with the old laws of Europe. These rights were designed to say that people, on their own as individuals and without the consent of a king or parliament, or even of their own elected government, had worth and stature. It was really meant to be a government of, by, and for the people, and not government for its own sake or as a convenience to those who held temporary power.

In short, the founders considered a national government, state government, or any formal control over the freedom of the individual as a necessary evil—not as a good thing in and of itself.

There are people and parties in this country today who would like to bring back the old European ideals: that the government grants rights and sets limits for the individual; that the products of an orderly society should be uniformly shared, even if that means giving up individual freedoms; that the average person is too willful, reckless, or stupid to make reasonable, intelligent decisions for him- or herself; and that to protect the rest of society, the “best and brightest” must step forward to direct the common citizen.3 These people want a more orderly, controlled—and controlling—state to define the limits of human existence.

And there are people and parties in this country today who say to that: “Been there. Done that. No thanks.”

1. See We Get the Smart Ones from November 28, 2010.

2. Thomas Jefferson, in his 1801 inaugural address, interpreted the Constitution thus: “All … will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect and to violate would be oppression.”

3. This was the essence of Plato’s “philosopher kings” in The Republic. But remember that Plato and his crowd were admirers of the rigid Spartan regime, which was a closely held oligarchy and not an open society of equal individuals. His ideas were notable in Athens not because they were revered but because they were antithetical to Athenian democracy. Or else why was Plato’s annoying mentor and protagonist Socrates forced to drink poison?

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