Of Rule by Experts and Rule by Law

February 22, 2022 Leave a comment

Photo by Adam Szuscik on Unsplash

In the 1990s I was part of a congressional delegation to Argentina, when the Argentine economy was growing strongly and steadily, and inflation was low, the currency convertible 1-for-1 with the dollar.  Trade barriers were being lowered, commerce was booming.  I recall asking Argentines what could possibly darken what seemed to be a bright future.  They were quick to reply:  “Here in Argentina we have no rule of law.  You can have no confidence in getting justice from the courts.”  Not long after, political shenanigans to reward one part of the electorate by a transfer of wealth from others threw the Argentine economy into turmoil.  Momentary good policy is a tough path to walk across bogs of inadequate legal safeguards.  Freedom has rested upon rule by law rather than rule by men.

Fundamentally, the American Revolution was an assertion of the rule of law.  Most of the Declaration of Independence is a litany of abuse by the English rulers.  The Revolution was intended to take power away from man and men and rest it upon laws and rights, soon to be secured by the world’s first written Constitution.

The Progressive Movement, which thrived over a century ago, was a retreat, aggressively stepping backwards to the rule of men as an impatient alternative to the rule of law:  the Rule of Experts.  Their new view—really a very old view dressed up in modern rhetoric—was that there are benevolent experts, to whom we can safely yield our governance, for such understand the process of modern government better than ordinary people do.

It sounds akin to the ancient theory of Divine Right of Kings, that the worldly monarchs are chosen by God and invested with greater wisdom and perspective than the average man and woman.  To their benevolent expertise and fatherly care was entrusted the governance of the rest of us.

Today’s benevolent experts are invested by their colleagues with varieties of credentials certifying their expertise.  Not very democratic, they make no secret of their impatience with the Congress and other constitutional brakes on arbitrary authority.

Just as not all men are always just, not all men are reliably wise.  The American Founders thought to address this problem by the separation of powers, dividing political authority among three branches in the Federal Government and the States.

The current regulatory program rests heavily on the notion that benevolent experts should be entrusted with authority for the big questions and increasingly smaller questions, too.  It has evolved by progressively engulfing the constitutional separation of powers, merging legislative and executive—and often judicial—authority in “independent” regulatory agencies headed by unelected officials.  The unelected federal regulator writes the details of mandatory regulations, charges violators, assesses guilt, and applies penalties.

Professedly efficient, it does not work well in practice.  First, the regulators are not dispassionate umpires, limited to calling the balls and strikes.  They are also players in the game, having their own set of particular interests and incentives that they take care of first.

Second, reliance on benevolent experts assumes what is an unproven, undemonstrated level of knowledge, insight, and forecasting skills.  Regulators are not dumber than the rest of the population, but they are no smarter either.  It is just that life is too complex and the society of the living is proving too much to be run by any designated group of humans and their computers.

A third flaw is mission creep.  Even if the tasks are too great or require too much knowledge, insight, foresight, and other skills in unachievable degree, the regulators still take them on, with each failure met with calls to increase resources and power of the agency.  

An example is the Federal Reserve (commonly called the “Fed”), created with a specific and rather narrow purpose, to make enough funding available for the banking system in times of financial stress.  Before long, the Fed gained control of monetary policy and the practice of controlling interest rates.  Later, it was tasked with promoting maximum employment.  In 2010 the Fed’s role in supervising banks was enlarged to supervising any financial business considered to be systemically significant.  Each augmentation has drawn the Fed away from its narrow, objective task. 

This expansion of authority affects every business and every home.  The Federal Reserve is the world’s biggest rigger of interest rates.  Its prolonged policy of keeping short-term rates at or slightly above zero has resulted in penalizing all savers and those who live off of their savings, transferring trillions of dollars of wealth to borrowers, the biggest borrower being the Federal Government.

A partial but simple solution toward strengthening the rule of law and reducing exposure to the caprice of men would be returning to elected representatives the making of laws.  It is a messy process, exactly the messy process that the Founders intended to preserve freedom from the encroachment of arbitrary and oppressive government.  The regulators, which are theoretically part of the executive branch, should be limited to the duty of implementing the laws that the elected and accountable representatives make. 

If Congress were required to write the rules and mandates, and delegate only the implementation, the mandates of government would be circumscribed by the exposure of a legislative body held directly accountable for what it has wrought.  It is easy for legislators to complain about bad regulatory decisions, but too often, these are decisions that Congress never should have delegated to regulators in the first place.

Filed under bureaucracy, Congress, Constitution, Declaration of Independence, Federal Reserve, freedom, interest rates, progressives, rule of law, Supreme Court Tagged with , , , , , , , , ,

Of Religion and Liberty

July 8, 2020 Leave a comment

Photo by Debby Hudson on Unsplash

In recent days the Supreme Court of the United States, in two related decisions, gave a welcome reaffirmation of the constitutional protection of the free exercise of religion.  The cases involved practical application of the principle First Amendment right.  One case, Little Sisters of the Poor v. Pennsylvania, involved the Obamacare Act and contraceptive insurance coverage.  The other, Our Lady of Guadalupe School v. Morrissey-Berru, concerned religious schools and their employment policies.  Both cases were decided by strong 7-2 votes. 

Readers will look to other forums and formats for the specifics of these interesting decisions.  I raise them as noteworthy inasmuch as governments in the last few months have acted unkindly toward religion and its exercise, much to the harm of people and the  jeopardy of their other rights protected in the First Amendment.

Not only is freedom of religion and the exercise thereof found in the First Amendment to the Constitution, it is the first freedom mentioned.  Free speech, freedom of the press, freedom peaceably to assemble, and the right to petition the government follow next, in that order.  This is not necessarily a ranking of importance of these five freedoms.  All are essential, but I would suggest that the latter four are strengthened by freedom of religion and will be put at risk without a vigorous regard for that freedom.

This is not hypothetical.  As an experiment to deal with the unknown effects of the coronavirus (SARS-CoV-2) many state governments (and the federal government to a lesser degree) engaged in an abrupt and progressive impairment of the constitutional rights of nearly all within their jurisdiction.  Of the five freedoms of the First Amendment, governments applied or tolerated the harshest limitations on religion and its practice.  Churches were closed, its members forbidden to meet together, even in small groups.  Administrations of religious rites considered sacred were blocked, even in application to the dying as well as the living.

In my congregation, in my church, we gather, we fellowship with one another, we sing together, we pray together, we teach each other, we provide service to one another, we follow the pattern of what Jesus Christ did and calls upon us to do in the practice of becoming kinder, more loving people.  Government restrictions have made that very hard to do, and are unable to replace it with anything.

One of the leaders of the church, David A. Bednar, an Apostle of The Church of Jesus Christ of Latter-day Saints, lately said this in remarks on the importance of religious practice:

Latter-day Saints are hardly alone in this need to gather. . . Our Catholic, Orthodox, Protestant, and Evangelical friends gather for mass, baptisms, confirmations, sermons, and myriad other religious purposes.  Our Jewish friends gather for worship in their synagogues.  Our Muslim friends gather in their mosques.  Our friends in the Buddhist, Sikh, and other faith traditions likewise have sacred places to gather and worship together. And because gathering lies at the very heart of religion, the right to gather lies at the very heart of religious freedom.

In the United States and elsewhere, in this experiment into which we were rapidly immersed, people “throughout the free world,” as David Bednar reminded, “learned firsthand what it means for government to directly prohibit the free exercise of religion.”

Science, including the science of self government, requires us to learn from our experiments.  What have we seen in the social laboratory within which we have been living?  While freedom of religion has been curtailed, other liberties have eroded.  Freedom of speech has been restricted; people have become very careful about speaking their minds, avoiding certain words, even limiting their associations with neighbors, and they do not like it.  Communication even on social media has been censored. 

Press freedom is no longer robust.  Media broadcasters are careful to avoid use of newly minted proscriptions of this or that phrase or word, with correspondents and announcers disappearing from their jobs almost overnight for violation of some new taboo.  People have become increasingly mistrustful of “the news.”

Many assemblies are prohibited.  Where allowed, numerical limits have been imposed on how many people can assemble in the same place.  More nettlesome, as is the usual case with the violation of rights, restrictions are applied and enforced unevenly, some favored and others not.

Governments, especially local governments, turn deaf ears to constituents raising concerns with the application of restrictions.  Arrangements for schools run by local governments are in confusion. 

Overall, people feel isolated, alone, helpless, and, for too many, hopeless.  They look for and find temporary relief in acts of rebellion, minor or otherwise.

This is where freedom of religion can be seen as important to the other freedoms.  Churches have often in western societies been a counterweight to government tyranny, which is why the governments of Europe tried for centuries to control them.  As the Red Army imposed its Iron Curtain across Eastern Europe, persecution and control of religion were a priority. 

The first amendment prohibits government control of religion, specifically to preserve freedom of the churches, which in America has also worked to accommodate variety of religious practice.  All of the churches, together, need the first amendment to thrive, as do their members.  No other human organizations are as organized, enduring, and meaningful to people.  Without vigorous, free religions, people are left alone to defend their other rights, with alternative organizations that at best are anemic by comparison.

In the words of David Bednar, “With goodwill and a little creativity, ways can almost always be found to fulfill both society’s needs and the imperative to protect religious freedom. . . . Never again can we allow government officials to treat the exercise of religion as simply nonessential.”

Filed under Constitution, free speech, freedom, Great Cessation, Jesus Christ, media, organized religion, religious freedom, rights, science, Supreme Court Tagged with , , , , , , , , , ,

Of the Meaning of “Still” and the State of the Union

May 7, 2014 Leave a comment

These thoughts, first published almost a year and a half ago, still seem pertinent today.

Notice how frequently these days when discussing the state of the American union, or any parts thereof, people rely upon the word “still.” That is a bad sign. When someone says, “I am still able to see my own doctor,” he or she implies that continued access is in doubt. Rather than reassuring, it insinuates caution and reveals anxiety. What do you hear when someone says, “At least I am still married”?

You do not commonly hear people using “still” in connection with things that they are sure of. If a baseball player boasts, “I can still hit the ball out of the park,” is he likely to be in his prime or in the twilight of his career?

Allow me to offer for your consideration a dozen recent objects of STILL in public discourse about the condition of the nation:

  • The United States is still the largest economy in the world.
  • The United States still has the strongest/best military in the world.
  • The dollar is still the world’s reserve currency.
  • The United States still is a free country.
  • America still is the land of opportunity.
  • The Supreme Court still can be counted on to defend the Constitution.
  • By hard work and best effort you still can become anything you want.
  • My children will still have a better life than I have had.
  • My children will still live in a bigger house than the one I grew up in.
  • In this country you can still get the best healthcare.
  • America still has the deepest, most liquid, and efficient financial markets.
  • At least the air you breathe is still free.

Undoubtedly, you can think of more for the list. Then, there are some things we do not hear people saying “still” about any more:

  • America is the best place to get an education.
  • Americans make the best cars.
  • I can freely speak my mind.
  • I can trust what I hear or read in the “news.”
  • You can count on the elections not being rigged.

I forbear going on. You can add more if you wish. There are some topics where the doubt is too palpable for people to venture “still” in their expressions.

If we leave the discussion at that, then we have a sad commentary on the sad state of the union. The expression of “still” in our conversation can reveal a desperate clinging to the past with a forlorn wish that things will work out for the future, without doing the good works to make the good future happen.

I would suggest, though, that “still” can also mean “not over,” or “not gone.” We need not settle for “still” and do nothing about it. That which we value can be reclaimed from assault and reinforced, the erosion stopped, the tide turned. After all, John Paul Jones is famous for winning a naval battle from the deck of his sinking—but still afloat—flagship, because he used it as a platform from which to regain what was lost. “I have not yet begun to fight!” is still part of the American heritage.

(First published February 10, 2013)

Filed under America, Constitution, courage, education, elections, environmentalism, exceptionalism, freedom, healthcare, money, rights, rule of law, Supreme Court, tyranny Tagged with , , , , , , , , , , , , ,