The United States was conceived and founded as a republic governed by laws, not men. James Madison wrote in Federalist #51, “If men were angels, no government would be necessary.” But as we know, men are not angels and the law is all we have. The idea of a country governed not by men but by law is an ancient one, but it reached its highest emphasis and appreciation among “free born Englishmen,” particularly those who migrated to the New World in the 17th and 18th centuries. The Englishman who would become American considered the law to be sacred and inherent as opposed to ephemeral and malleable. The idea that the law predated the men who would codify it was a radical notion first breached with Magna Carta in 1215. Prior to the Anglosphere exaltation of natural and inalienable rights, all the world was governed by some variant of recognizable authority: law of the monarch or law of the church. Usually a king’s law was tied intrinsically to God’s law or the law of the Church, but that was always a veneer that hid the truth that laws were made by men. An 18th century British colonial in America identified as a “free born Englishman” because of the English tradition of liberty and natural rights developed over five hundred years. It was this fealty to liberty coupled with a firm distrust of arbitrary law, along with a remarkable fluency in philosophy, history, politics and law itself that provided the American founders with the vision for our constitutional republic based on limited government.
The Declaration of Independence and the Constitution were not mere products of their time, arrived at on whims by the brilliant minds of Jefferson and Madison; they are documents perched at the zenith of Enlightenment ideals, meant to codify forever an ideal of individualism and self-government based on the common law. Even among these brilliant visionaries there were bitter disagreements though; Hamilton and Jefferson were notorious adversaries, and of course Hamilton was killed in a duel by Aaron Burr (Got Milk?), but there was rancor and demagoguery and fierce invective all around. For this reason, it was clear to most that the primacy of law had to be elevated over the whims of man. This is why Jefferson and Madison fought so hard for the Senate to be a place where minority rights are secure and even held sacred. Those of the Hamiltonian and Adams persuasion favored more majoritarian instruments of government, and Hamilton advocated for a more central, stronger federal government with a stronger executive branch than any limited government, diffuse power advocate could stomach. But Hamilton himself largely agreed with Madison that the institutions they were shaping should always be more important than the men inhabiting them. A fealty for rules in the various governing bodies would be the only way to ensure continuity of vision as well as protection of rights of the minority. All of the founders understood that the republic they were building was a fragile and radical experiment, which is why the public engaged in a years long debate over the drafting of the Constitution. That debate was carried out in a series of long newspaper editorials and pamphlets between the Federalists and anti-Federalists. The Federalist Papers, composed anonymously by Madison, Hamilton and John Jay, argued in support of ratifying the proposed Constitution, and in them they often cite the need for the law to be held as sacrosanct, since anything less leaves the law at the mercy of the whims of fallible man. The English tradition of the common law, including property rights, habeus corpus, peer jury trials, representative democracy and right to life and liberty, was the slow-evolving engine of freedom that culminated in the Declaration and Constitution. Our founders, brilliant and radical as they were, did not invent out of thin air the foundations for the one and only creedal country in the world. In fact they did not invent these principles at all. They were simply expanding on the freedoms and traditions they viewed as their birthright as free born Englishmen, and sought to install in the New World an updated and improved version of those traditions. The great Daniel Hannan has a new book (Inventing Freedom: How the English-Speaking Peoples Made the Modern World) about the sacred lineage of liberty that runs through the wider Anglosphere, and his thoughts on the unique and lasting influence of English liberty are genuinely inspiring.
William F. Buckley urged conservatives and libertarians in the 1950s to “stand athwart history yelling ‘stop!'” In a sense, this was an invocation to place obstacles in the way of progressives and their transparent desire to see America governed by men instead of by laws. Progressivism is inherently lawless because it recognizes no limiting principle on what it can achieve. It knows no constraints. Armed with emotionalism and a sense of moral righteousness, progressives care far less about what is legal than about what is right and good. This elevation of subjective values that consistently places the utilitarian “good” of the people over the natural rights and wants of the individual is in direct conflict with the more libertarian instincts that flow from the Anglophone conception of liberty. At its root, progressivism (especially in the UK and US) is in constant rebellion against the principles and traditions of its ancestors. Free market capitalism based on voluntary exchange, property rights, and a covenant that lifts the citizen above the State has proved to be the best system so far devised by human intelligence at eradicating global poverty and facilitating widespread prosperity. Since progressives reject free markets out of hand, due to either ignorance or indifference, they are left to root in the wilderness for more egalitarian economic and political systems. To date, their track record is, shall we say, less than stellar. Whether its Marxism, Socialism, Communism, Fascism, Totalitarianism, Social Democracy, Syndicalism or Monarchy, any system that deviates from a free market that exalts individualism over collectivism is mathematically, scientifically, fatefully destined to fail. And so in their perpetual lurching from one form of statist collectivism to another, the progressives have rallied around one crucial yet rarely uttered revelation: that they are above the law.
Just look at progressive behavior during the Obama era. Democrats rammed through a hilariously awful and stupid health care law using a shady and probably unconstitutional measure known as “reconciliation” to get the bill passed. President Obama made recess appointments to district court seats while the Senate was in pro-forma session. The DC Circuit Court of Appeals smacked that decision down as lawless, and the progressives simply shrugged and moved on. What did they move on to? Oh yes, the nuclear option, which completely eviscerates 225 years of tradition and comity in the Senate by breaking the rules in order to change the rules, using a bare majority “overrule of the chair” technicality to eliminate the filibuster, effectively forever. Obama’s foreign policy reflects a confused kid’s grappling with the difference between Budapest and Bucharest, but what’s crystal clear is his allergy to the rule of law. War in Libya, attempted war in Syria, indefinite detention, sweeping domestic surveillance and extralegal drone wars are pretty big examples of the Commander-in-Chief operating outside legal constraints, not to mention lying when confronted with each transgression. Progs flip the bird at legal constraints because to them, the end truly does justify the means. Once Teddy Roosevelt and Woodrow Wilson challenged the founding of the country, progressives were free to dream big and ignore the law, since any law that emanates from a flawed and immoral document is not a law to be taken seriously, the thinking goes. Any talk of a “living constitution” betrays the true progressive conceit: that our founding documents are invalid for their lack of “modern” values… and racism, of course.
Progressives covet power and control. By beginning with a premise that our republic is innately flawed, progressives feel empowered to use any means necessary to upend the status quo and bring about utopian change. The goal is to occupy as much of the federal bureaucracy and branches of government as possible, and to exploit them for progressive ends, regardless of established law, rule or precedent. With the executive, progressives enhance presidential power; with the legislative, they flout the rules and ram their agenda through Congress; with the judicial, they pack the courts and build up their cache of case law to fit their aims.
They are lawless because it suits them to be. Nothing is above the agenda. When you’re grounded not in principle or dogma but in the material achievement of tangible power, the law is a mere nuisance. The only way to reverse course in this country is to make the Constitution and our principled traditions of liberty and individual freedom cool again. I think individual liberty and free markets are pretty freaking cool, but they are not self-evidently so. Principles of liberty need to be reclaimed and renewed by the mass American electorate. No government or central planner can make that happen. Only the people can.