The true test of civilization is, not the census, nor the size of cities, nor the crops — no, but the kind of man the country turns out.
— Ralph Waldo Emerson
In case any reader still clings to the platitude that the American political system is based on the proposition that ours is “a society of laws, and not of men,” I urge you to pay close attention to the events of recent years. Political behavior does not exist in abstractions, such as the “state,” or the “government,” or a “constitution,” but is activity engaged in by such men and women who find the machinery of state power a useful device for accomplishing ends that they value. Those who desire to control others through access to the tools of violence that define the state, have rationales to convince their intended victims of the “rightness” of their rule. From explanations such as “God’s will” to the “divine right of kings,” the authority of some to enjoy coercive power over others — along with their subjects’ duty of obedience — is so engrained into the minds of people as to seem as self-evident as the forces of gravity.
The humanistic sentiments of the Enlightenment helped transform these autocratic assumptions about the source of political authority, substituting as a rationale for the state the myth of a “social contract.” Formal constitutions were written, presuming to create a state by contract, in the collective name of “We the people.” In the American version, political authority was to be disbursed among three major branches, with the legislative branch to enjoy sovereign power; a proposition that would make it difficult — if not impossible — for an individual to enjoy unchecked authority. Coupled with the illusion that the exercise of power could be restrained by words written on parchment, it was believed that reasonable persons could therefore trust state power. That some of the most repressive actions of the Soviet Union were conducted under a written constitution loosely modeled on the American one, should disabuse anyone of the thought that governmental powers could be restrained by words.
Such an arrangement sounds reassuring — except to those who have bothered to read the document or the cases decided under it. Though the Constitution contains numerous words, two passages in Article I, Section 8 are sufficient to confirm its unrestrained power given to the state. One passage at the beginning of this section provides that “The Congress shall have Power … to provide for the common Defence and general Welfare of the United States.” This power is elaborated upon by the concluding words to this section that Congress shall have the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Suppose I were to be given the authority “to make all laws which shall be necessary and proper” in order to promote your “general welfare”? What limits would such words place on me? What immunity from the exercise of my powers would you retain to avoid any governance I might exercise over you? It was just such questions that led Britain’s Lord Thomas Macaulay to declare, in 1857, “Your Constitution is all sail and no anchor.” “Ahh,” you might respond, “but this Constitution contains a ‘Bill of Rights’ that limits governmental authority.” In the event of a conflict between what a government official orders, and an individual’s defense that such would violate a protected liberty, how — and by whom — would such differences be resolved? Whose authority would prevail? Article VI tells us that “This Constitution, and … the Laws … made in Pursuance thereof … shall be the supreme Law of the Land,” but fails to identify who shall be empowered to interpret or enforce that. Neither does Article III, which establishes “The judicial Power of the United States.” When, in the 1803 Supreme Court case of Marbury v. Madison, the Court simply usurped the power of judicial review of the actions of other branches of government — there being nothing in Article III that even remotely expressed such an intention by the framers — it took upon itself the status of the sovereign of political authority.
The Constitution, itself, should remind us that “laws” do not exist in a vacuum, but are the products of human action which, in turn, is behavior driven by people pursuing their self-interests. With legislation created by a political system that enjoys a monopoly on the legal use of force, it is clear that laws are but the means by which some people pursue their ends at the expense of others.
From the very creation of the national government, to how its different branches would act, there has always been a fuzziness as to the meaning of words used in the Constitution. This is due to the fundamental nature of all words. Being abstractions, their application to real-world events inherently depends upon their interpretation. When the Supreme Court tells us that it will have such authority, it is telling us that the government thus created by this document will be the interpreter of its own supposed “limited powers.”
Under these powers of interpretation that the government has taken to itself, the Supreme Court has provided a consistent pattern of interpreting congressional and executive authority quite broadly, while giving narrow interpretations to Bill of Rights provisions. The aforementioned “necessary and proper” clause has been construed to mean little more than “convenience,” while the supposed defense of individual liberties are often constrained by such words as “free speech (or religion) does not include …” The Supreme Court has also permitted Congress to create those branches of government known as “administrative agencies” (e.g., the FDA, FCC, DEA, NLRB, SEC, etc.); entities with which most Americans must contend. This regulatory system has been premised upon agency officials having an “expertise” in the subject-matter to be regulated (such “expertise” arising from professional connections with the companies to be regulated!). In a so-called “democratic” political system, unelected federal judges and unelected agency officials enjoy the exercise of powers to which they are answerable to no one but each other!
With such usurpations of political authority generating little objection from the boobeoisie, it comes as no surprise that presidents and state governors would be attracted to the practice by issuing “executive orders.” What easier way to avoid pressures associated with the legislative process than to be your own legislator? Democracy is such a troublesome system, what with “Joe Sixpack” — a term used by the statists to dismiss the interests and concerns of those they pretend to represent — being able to influence Congress to vote in accordance with policies that differ from the ends sought by their masters. The first nine US presidents issued a total of 40 executive orders, while the Roosevelt boys added 4,809 of their own! During the Reagan through Obama years, 1,478 executive orders were fashioned. Fully aware of the difficulties he would have in getting Congress to cooperate with him by violating the Second Amendment, President Obama tried to circumvent this constitutionally-protected liberty by fashioning his own gun control executive orders. Donald Trump, following the examples of his predecessors, is just getting started with his additions.
At the state level, a few governors have also been getting into the executive order practice. In 2007, then Governor Rick Perry issued a decree mandating Texas girls to be given the HPV vaccine (Gardasil). That his order was tainted not just by the involuntary nature of his edict, but by his political connections with the pharmaceutical firm that produced the vaccine, led to his order being rescinded. More recently, Ohio Governor John Kasich issued an executive order prohibiting opiate prescriptions that lasted for more than seven days. The state licensing of physicians has long been premised on the assumption that only professionally-trained doctors should be able to treat patients and prescribe medical drugs and treatments. As neither Perry nor Kasich was licensed to practice medicine in their respective states, their mandated prescriptions would violate the same laws that prohibit barbers from performing tonsillectomies, or school teachers from engaging in brain surgery. While unlicensed medical practitioners are prohibited from making medical decisions for patients, it has long been the case that, if a physician wanted to employ a given procedure with a patient, he or she would first check with the insurance carrier to determine if such a procedure would be covered. If the insurance company clerk were to conclude that it would not be covered, the doctor would likely change his proposed treatment. In such a case, the clerk — not the physician — would effectively have the final say regarding medical decision-making. If presidents and governors are entitled to make such decisions on the basis of some hidden, presumed powers, what other political figures might get into the game? Will mayors, government-school superintendents, post-office officials, or police chiefs be the next to mandate prescriptions for other people? In the words of that erstwhile comedian, Jimmy Durante, “everybody wants to get into the act!”
As the self-serving nature of realpolitik becomes increasingly evident to more people, such bromides as society being governed “by laws, not men” becomes more difficult for intelligent minds to listen to with a straight face. In the same way that observed reality did away with the idea of an earth-centered universe, humanity may be in the early stages of dismissing the political illusions upon which we have been conditioned to celebrate our mutual commitments to our self-destruction.
Butler Shaffer is Professor Emeritus at Southwestern University School of Law. He is the author of In Restraint of Trade: The Business Campaign Against Competition, 1918–1938 and Boundaries of Order. Contact Butler Shaffer