Of Free Speech and Insensitivity Training

There is a poignant scene in “Lawrence of Arabia”, a movie with many poignant scenes, in which Lawrence demonstrates to a fellow officer how to snuff out a candle. He pinches the flame with his fingers. The other officer gives it a try but jerks back his hand when his fingers are scorched.

“That hurts,” the officer complains. Lawrence replies, “Certainly it hurts. The trick is not minding that it hurts.”

There is a lesson there, particularly important for a society that has become hypersensitive to injury, real or imagined. Hurt may come from something as small as a look—or failure to look. It may come from an article of clothing, either worn or neglected. Lately flags have been targeted as sources of personal and even societal pain. Hurt may come from something as small as a word. Indeed, I think that most often today and in our society, both words and our sensitivity to words have become sharpened.

If we are to preserve freedom of speech—in all its important varieties—we need to develop some insensitivity, as in not minding when it hurts. Freedom of speech only matters when someone hears something he does not like. The choice then is intolerance and silence or freedom and not minding the hurt.

Another way to look at it is that we most desire freedom of speech when we are the speaker. From the point of view of listener, we may have mixed emotions. We may like what we say, but when we do not like what we hear do we wish to silence the speaker, or do we accept the options of free speech, to turn away or to endure another’s unpleasant rodomontade?

Freedom of speech was made part of the First Amendment, because rulers and monarchs were at pains to inflict genuine physical hurt whenever they took offense at the words of their subjects. The First Amendment’s protection of free speech was needed to protect people using words that hurt people in government, that offended people in power.

Even though enshrined in the Constitution, freedom of speech has to be won by each generation, because it is constantly in jeopardy. Americans are nearly unanimous in their support of freedom of speech when it is speech that they like, speech that reinforces their own views, and especially speech that praises and flatters. We do not particularly need the Constitution to protect that kind of speech. Speech that is unpopular, speech that goes against the grain, speech that is obnoxious to our opinions, speech that challenges our beliefs, that is the speech the Founders fought to protect. Most of human progress has come from that kind of speech. It is speech that is worth protecting today and that many try to silence.

President Obama and his political friends are fond of declaring that “the debate is over,” whether referring to Obamacare, the Dodd-Frank Act, climate change, same-sex marriage, or other important issues of significant disagreement. I expect that soon we will hear President Obama, Secretary of State Kerry, and other administration spokesmen insist that the debate is over with regard to the nuclear deal with Iran. In a free republic, can the debate ever really be over?

This is nothing new; it is a continuation of a very old struggle. Despots great and petty since early ages have exercised what power they might to silence ideas and expressions they did not want to hear, or did not want others to hear. The gallows, flames, and torture chambers of yesteryear are matched today by bullets, bombs, and bayonets from radical Islam and totalitarian governments. In the West, where constitutions solemnly embrace free speech, voices are silenced by public ridicule, elaborate and intrusive regulations on what can and cannot be said and when and where—reinforced by government fines, restrictions, confiscations, and jail time.

I recently visited my son at his new job at a large factory. He was very careful to spell out to me a lengthy list of subjects I should not bring up, whether from fear of his colleagues, company policies, or federal, state, and local regulations. I have been given similar training at my place of work.

When I was young I was taught to be courteous and not seek to offend. I was also taught to be slow to take offence. Do children today repeat the rhyme I heard as a child? “Sticks and stones may break my bones, but names can never hurt me.” I wonder. Or are our children taught today that there is great reward in being the sensitized “victim” of someone else’s “offensive” words? Where do we find freedom in that?

Of Humanism and Religious Freedom

Can a creed that claims to be non-religious be itself a religion? Is the professed irreligion of the leading social elites not only a religion but America’s state religion, reinforced by Federal, state, and local governments?

Consider a typical school commencement ceremony, whether college or high school. A speaker declares that we must leave all talk of God behind, toss into the dustbin the dogmas of religion that divide us, and embrace a view of life that brings people together in a common cause of humanity, a village of fellow passengers on this tiny planet as it wends its course through the universe. At another similar commencement ceremony a different speaker declares that we should rise above the hates and lusts of mankind and embrace the love of God, join together in our common heritage as children of the family of God, learning to live with each other here that we may all the better live with our Heavenly Father in the eternities. Which of these, today, is likely to receive the greater applause and public commendation? Which of these speakers, on the other hand, is more likely to be censored and not even permitted to present his views, perhaps under threat of a lawsuit? Or, to make the question easier to answer, which is more likely to receive favorable coverage in the media?

Expressions of skepticism about God and His existence are embraced, praised, and rewarded in contemporary American society. Declarations of faith in God meet anything from patronizing smiles, to hostility, to punitive sanctions under the prevailing culture. The predominant American society, while professing to be neutral about religion, has some very strong opinions about religion and its expression.

In a land of constitutional free speech, that allows no state religion, this should seem an odd discussion, a throwback to history. Cursory familiarity with the historical chronicle would bring to mind other places and times when an incautious word on religion could earn a speaker severe punishment, not excluding cruel execution. Deviation from the local religion was certainly risky business anciently. We also may recall tales of the Spanish Inquisition and the bloody controversies of the Protestant Reformation, as well as the perennial anti-Semitism that has followed the House of Israel throughout its Diaspora. Social revolutions have dealt harshly with religion, from the French revolution to every communist regime, while clumsily endeavoring to create new secular religions (that failed miserably to engage adherents).

The malodorous plant of state religion followed the colonists to America, but it had trouble taking root, particularly among the English colonies. The freedom of wide open spaces, and the need for an armed populace, made oppressive government difficult to maintain. Thomas Jefferson considered the establishment of legal guaranties of religious freedom in Virginia to be among his life’s most important achievements (the other being the founding of the University of Virginia). The principle of that law was later made a part of the United States Constitution with the adoption of the First Amendment.

The public outcry from media and politicians (with little echo from the general populace) over recent efforts of states to reinforce freedom of religion against encroachments by regulatory dicta and court edicts strongly suggests that there is one—and only one—protected national religion in the United States today. It needs no protection offered by these state laws, because its tenets are the motivating heart of the government actions threatening all of the other religions. It goes by many names—as do many broad religions—and includes a variety of sects, also not uncommon among religions. For facility of discussion, I will refer to just one of its appellations, Humanism.

The religion of Humanism has a core belief—shared by all of its sects and denominations—that man is the measure of everything. Man decides what is truth, what is good, what is real. Yes, that is more than a bit narcissistic, which is probably the key to its attraction, particularly among the intelligentsia and the elites. The chief corollary to this main tenet is that God does not matter, whether you believe in Him or not (some Humanist sects tolerate a belief in God or some sort of Supreme Being for reasons of nostalgia and to broaden popular acceptance).

Humanism has an elaborate set of dogmas, commandments, taboos, and rituals. It has its own liturgical language, which is required to be used, for example, in all doctoral dissertations—especially those in the social sciences, though its linguistic hegemony is now reaching to hard sciences as well—and in more colloquial versions observed by all media outlets, especially broadcast journalism. Humanism has its sacred texts along with its college of revered and beatified Humanists of yore.

I was going to write that Humanism has its own seminaries, but, frankly, that includes nearly all colleges and universities in the nation. The clergy of Humanism is largely self-appointed, though it has intricate, Byzantine hierarchies, with no one at the top for long, though all presume to speak for everyone. The clergy are supported by varieties of orders of acolytes and sycophants, the gathering of disciples a key method of rising in Humanism’s hierarchy, and the loss of disciples a sure path to disfavor and obscurity.

While most religions preach exceptionalism, exclusivity, or preeminence, whether in faith or favor with God, Humanism may be the most intolerant of all. Being the state religion, it uses the full power of legislatures, regulators, law enforcement agencies, and the courts to advance its cause and bring in to line people who disagree with its tenets and prescriptions, who violate any of its taboos—particularly who utter any of its taboo words—or who remark on the foibles of its revered demigods. Significantly, any practice by any other religion that interferes with Humanism must yield to Humanist demands, not excluding the profligate use of federal, state, and local moneys to fund its projects, prescriptions, and priests.

Therein lies the explanation for both the desire of various state legislatures to reaffirm religious freedom and the inveterate and fierce hostility to these efforts from the media and a bevy of national celebrities. Freedom of religious belief and practice is a threat only to an established national religion, erecting obstacles to forced conformity with the state church. Failure of efforts to reaffirm the protections of the First Amendment will result in an increasingly intimidating society, constraining intellectual freedom and unauthorized religious observance to a degree unseen in the United States since 1787.

In a letter to Dr. Benjamin Rush, September 23, 1800, Thomas Jefferson wrote, “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.” Those words are the most prominent inscription in the Jefferson Memorial. Jefferson might get into trouble saying such a thing at a modern commencement ceremony at the University of Virginia.

Of Blasphemy and Racism

Blasphemy! Heresy! Treason! Racism! All loaded words, used less to convey meaning than for their effect as weapons. Few weapons in history have been as powerful. They have killed thousands, perhaps millions, and silenced many more. “Sticks and stones may break my bones, but names will never hurt me.” These will. They are intended to.

Consider “blasphemy.” It is a common hammer of religious leaders who are doubtful of their deity’s ability to defend himself. These nervous clerics and acolytes step in to threaten and, where they can, inflict the harshest penalties against any and all they accuse of “blasphemy,” which usually means saying anything that the listeners consider untoward or disrespectful vis-à-vis their deity. The harshness of the penalties, and the vagueness of what qualifies as an infraction, create a terror that intimidates both speech and action among others, which is the basic purpose of the label. The religious leaders of Judea during the days of Jesus’ mortal ministry repeatedly tried to silence Him by hurling “blasphemy” at Him. On the day of His death, they cried blasphemy to stir up the anger of the population—although they used another word, “treason,” when addressing the Roman authorities. Several dozen nations today (with little opposition from the U.S. State Department or other executive branch officials) are seeking to make blasphemy a globally recognized crime, at least when touching upon Islam or its sensitivities.

“Heresy” has similar uses. Rather than a crime of the impious, it is invoked in pious disagreements about whom or what is sacred. The Spanish Inquisition comes readily to mind. The accusation seems to be most commonly employed by those who lack confidence in the convincing power of their doctrines when faced with competing ones. “Heresy” is intended to close ears, “heretic” to silence speakers, both intended to end the debate.

Next we come to “treason,” which can be a real phenomenon and a genuine crime against the nation or people, and when proved and the traitor caught usually answered with stern—if not brutal—penalties. Genuine treason puts the nation or community at risk by exposing weaknesses to enemies.

In former times, as well as in nations governed by authoritarian regimes, “treason” has been invoked, however, less to label traitors to the state and the society as to subdue opponents to the supreme leader. Kings, emperors, czars, dictators, and others of the ilk sit nervously on their thrones—and for good reason. They lack legitimacy yet enjoy immense power (or its illusion), which lures other would-be despots. Nearly every one of the Roman emperors, for example, met death at human hands. The Soviet Union never had a legitimate transfer of power from one boss to the next. Tyrants, therefore, have little tolerance for opposition and are credulous of every rumor of resistance. That makes accusations of “treason” powerful tools of terror for scoundrels in such societies to employ to settle grudges, dispose of enemies, steal lands and wealth, or otherwise gain advantage. Many innocents have been so victimized.

Which brings us to “racism.” This is a modern weaponized word. Originally coined to identify people who would justify plunder and oppression by employing racial prejudices, it has been preserved long after such plans and schemes are suppressed by law and proscribed by social convention. Indeed, the word only works as a weapon because of the universal social opprobrium already attached to it. Its power as an epithet comes because no one in civil society considers it tolerable, any actual existence a bizarre aberration. Calling someone “racist” is tantamount to accusing him of being unfit for public association and worthy of ostracism. It is therefore used most commonly today, like the use throughout history of the other weapon words, to end debate, to intimidate opponents, to plunder wealth, and in general to gain advantage. “Racism” is the modern world’s “blasphemy,” “heresy,” and even “treason.” “Racism” is used to cause hurt, even where the absence of authentic racism causes none. Worse, it is used by real racists to shield or camouflage their own bigotry.

Employed as a weapon word, racism is losing meaning. When was the last time you heard a reasoned discussion and debate of racism? Intellectual dialog is avoided for fear that raising the subject in an impartial way will court exposure to accusation, much as discussion of blasphemy, heresy, and treason in times past. What is left, for example, when racism no longer means conscious prejudicial action but is applied—as it is by the Obama Administration—to mean manufactured statistical discrepancies among people who admittedly have no intention to act in a prejudicial manner?

For the wielders of the weapon, the meaning of racism must be kept general and undefined to maximize the number of potential targets. Feeding the outrage attached to it is a constant labor as is constantly finding new eruptions of racism where none exist. The recognition of racism (especially where it is absent) must be automatic and assumed proven when employed—addressed if at all only by the mea culpa of the accused, followed by public contrition and the ceding of wealth or advantage to the accusers.

Where, I wonder, does the real racism lie? Can racial distinction and prejudice wither when they are regularly conjured for personal advantage? What does that do to a society where laws and culture already universally hold racism in contempt? What is the appropriate term for the moguls of the racism industry who prosper by the preservation and promotion of racism? When will the public immolations for private gain end?

Of Compromises and Congresses

The beginning days of 2015 have brought the convening of a new American Congress. It is fair to say that expectations and skepticism are high.

Both are merited. Our Constitution was inaugurated with high expectations, not that the end to all problems was at the door but that the means were available to deal effectively with the problems of government for the new nation. The people who wrote the Constitution and those involved with implementing it (many the same people) were also deeply skeptical of government, including the one that they had just created. Memorable and personal experiences had shaped their skepticism. For that reason, the adoption of the Constitution had been a close thing, the opposition coming chiefly from those who thought that it imposed too much government on the people. There may have been some contemporary views that the proposed national government would be too weak and light, but I have not found any examples.

No surprise, then, that an early use of the new Constitution was to adopt the Bill of Rights—a set of fundamental rights to protect individual people from their government. If this new government were really self-government (a misconception reflected today in such bromides as, “Don’t worry about the national debt, we owe it to ourselves,” and “we should not fear the government because we are the government,” as well as much similar foolishness), then these first ten amendments would all be unnecessary. They have since proven to be very necessary, sometimes breached by our government, but more often employed to preserve and protect us from government offense.

Much as with the convening of the First Congress in 1789, the 114th Congress convenes after a troubled period of bad government. Hopes and wishes abound that errors can be corrected, freedoms restored, troubles addressed. As then, so today patience is in order.

A great virtue of our Constitution, an intentional feature, is that no one person can do much, for good or ill, in the federal government. It takes a lot of people cooperating together to get things done. Both Houses of Congress, usually with significant majorities, must agree to identical—word for word identical—legislation for it to be sent to the President, who must agree enough to add his signature to make it law. And then the President and his colleagues in the executive branch must actually execute the law, which as we are seeing with this President is no sure thing, despite a solemn oath to do so.

All of that coming together of many people, with varying ideas and backgrounds and interests, seldom happens quickly. For a people who do not need a lot of laws and direction from government to know how to live their lives, that is a fact to be celebrated. As the Founders envisioned, making law requires compromise and accommodation of the many interests of the many who compose our great nation. That takes time, as it should.

It is a mistake to banish the use of compromise from republican government. Those who would eschew compromise in our Republic would doom us to the fate of the Roman Republic. The members of the Roman Senate lost the ability or willingness to compromise. In so doing, they were doomed to inaction—not just slow deliberation—in the face of crisis, followed by reliance upon dictators, whom they fancied they could limit if not control. They sometimes chose wise men, sometimes they trusted their liberties to demagogues, invested with nearly unilateral authority for an entire year. The Republic and Roman freedom regressively devolved into the rule of the Caesars.

I understand the impatience that many have with compromise, people who would wish bold and decisive action in response to the would-be Caesar currently in the White House. To these I would say, do not despair of the strength of the Constitution, even as the chief executive seeks to violate it. In such times strengthening the Constitution and reinforcement of its checks and balances are the orders of the day, not further erosion of accommodation and compromise that have held our nation together (even through a Civil War) for two hundred years and more. It is true that some compromises are bad; despotisms or anarchies are not much good.

One of the most important compromises involves idealism and realism. American legislation requires a marriage of idealism and realism. Idealism can offer the vision of a free and prosperous nation and the inspiration to action to protect and promote our liberties. Realism, when operating in the light of idealism, focuses our work on what can be achieved now, without exhausting our energies and resources on quixotic quests that may do little more than tear the national fabric. Realism would teach that much of the policy errors of years will take years to unravel. With idealism and realism together, we can know what can and should be done today to make things better and get national policy moving in the right direction.

While a realistic view of the doable is essential to good legislating in a Congress of free men and women, the key and fundamental principles of our idealism help us discern a good compromise—one that makes things better and enables further progress—from a compromise that walks us closer to the abyss. President Reagan made many compromises, but he had a vision and knew where he was going, each compromise uniting our nation for more prosperity, greater freedom, and stronger security.

We should rejoice that no one in the Republic by himself can bring about much change, however well meaning. That virtue of our Constitution is why it has taken many steps and many mistakes to come to the many calamities our nation now confronts. In the same way, because of this Constitution, it will take seemingly many steps along the way to optimal answers. Every reason to be about the work and not tire of it.

Of Presidents and Derelicts

Barack Obama is no fan of the Constitution. He has been known to criticize it for its focus on limiting government, for telling governments what they can and cannot do. He prefers a Constitution that focuses more on telling governments what they should do, at least telling governments to do what he would like, including seeing to the “redistribution of wealth,” or what he calls elsewhere “redistributive change.”

Of course, that is a mischaracterization. Not a mischaracterization of Obama’s views but of what the Constitution says. It does limit government, but it also gives government specific responsibilities and the power to exercise those responsibilities. Article I, Section 8 provides a very clear list of the federal government’s duties. It is noteworthy that those enumerated responsibilities and powers are in the Article that establishes the Congress. The list includes such things as providing for the common defense, borrowing and paying government debts, regulating foreign and interstate commerce, establishing standards for weights and measures, and so forth.

There are plenty of other provisions that limit the powers of the government and how it operates. The Constitution is a balance of governmental duties within a structure intended carefully to limit the government. As a limited government our Republic has prospered. It has struggled either when its duties were neglected (as in the days of President Buchanan, who did nothing while he watched state after state rebel from the Union) or when the limitations have been eroded (as we have witnessed through much of the twentieth century and in the first 14 years of the twenty-first).

The President has specific powers and duties, too, nearly all of which are carefully linked with the role of the Congress. For example, while the President does not make the laws—Article I, Section 1 gives “All legislative Powers” exclusively to the Congress—the President is authorized to make proposals to Congress and has the authority to veto legislation (but not change it) that Congress has approved. Once an act of Congress becomes law, the President then has the explicit obligation to, “take Care that the Laws be fully executed” (Article II, Section 3).

Note the words, “fully executed”. The President takes an oath to fulfill those duties, and nowhere in oath or Constitution is the President authorized to execute the laws only as much as he likes or agrees with them. Once something has become a law, the President may not set aside this or that part of the law or decide that he will only enforce the law so far. His obligation is to take Care that the laws are fully executed.

Average Americans may not like this or that provision of law, but we are not at liberty to ignore any law that applies to us just because we do not like it. The President is not exempt from that common responsibility of all citizens, either. As the chief government executive, who sought to hold his high office of public responsibility, he is even more obligated not only to obey the laws but to execute them, fully. The President may not make the laws, he may not amend the laws, he may not change the laws, and he may not disregard the laws. His duty is to execute the laws, and when he does not he is derelict in his duties.

This is all in accordance with the important division of labor, the separation of powers that the Founders put into the very structure of the Constitution to combat the tendency of all humans to abuse power once it comes into their hands. By dividing the power of government among three separate but coequal branches, dividing legislative power even further between House and Senate, and yet again separating government power between federal and state governments, the Founders went to clear and elaborate lengths to create checks and balances.

Under the American system of government no branch, no person, no group of people in government, are to be able to do very much on their own without getting the other elements of government to go along. Where they are not able to agree, where there is no consensus, for the safety of our freedoms government is prevented by constitutional law from moving forward unless substantial consensus among the different branches can be reached. Those checks and balances again and again, throughout the more than two centuries of our Constitution, have forced the very human people in government to revisit their differences and come to terms with one another, however much they may disagree and be disagreeable. There is safety for you and me in that. And it helps keep our Union together, repeatedly forcing our leaders (and the parts of the nation that they represent and whose authority they exercise) to work with one another, like it or not.

Recently, President Obama has expressed impatience with the Constitution’s checks and balances. After all, he personally, in and of himself, embodies an entire branch of government. The other branches, Congress and the courts, have many different people with a messy variety of ideas. President Obama complains that Congress cannot decide what it wants to do as quickly as he can. In his view, why wait?

By design, Congress of course has something of a multiple personality. It is a gathering of elected representatives, reflecting the diversity of views among the people of the nation. Appropriately, it takes time to build a consensus that accommodates those views, as it should. But President Obama cannot wait. He sees the need to accommodate no ideas other than his own. He has decided that on this issue or that—today it is immigration laws—there is a limit, defined by himself, as to how much time Congress can take to consider things. When time is up, he, the executive branch, will take the matter into his own hands, and pretend to the authority to do it.

His tool of choice today is to abjure his duty to execute the laws fully and instead to execute them partially, just to the extent and manner that suit his own desires, as he engages in another round of redistributive change. That he is endeavoring to violate rather than execute our national, founding law, and his constitutional oath of office, apparently does not trouble him. It is the Constitution itself that troubles him.

But from where does he think he gets his authority to do anything. When he breaks the Constitution, does he not break his very authority to act in the office that the Constitution created?

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

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)

Of the Rule of Law and the Separation of Powers

In the 1990s I was part of a congressional delegation to Argentina. At that time the Argentine economy was growing strongly and steadily, inflation was low, the currency was pegged to the dollar, convertible 1-for-1. Trade barriers were being lowered, commerce was booming. I recall asking Argentines what could possibly darken what seemed to be a very 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.”

That reminded me of Washington Irving’s observation on a European judge, from his famous work, The Alhambra:

It could not be denied, however, that he set a high value upon justice, for he sold it at its weight in gold.

Not long after that visit, the politics of income redistribution and confiscation threw the Argentine economy into turmoil, where it has remained.

I recently spoke with an economist friend of mine, who was waxing eloquent about the attractive monetary and tax policies in Bulgaria. I remarked that this would probably invite foreign investment. He replied, “No, there is no rule of law there.”

The point is that good economic policy cannot long survive inadequate legal safeguards. Many businesses that made major investments in China, attracted by a market of a billion people, have learned that the lack of a reliable legal and justice system in China has undermined much of the business value they thought to find. A similar story has been holding back investment and economic development in Russia.

Bringing that home, I would venture that concern for changing rules (or even lack of rules)—the substitution of arbitrary bureaucratic powers in Washington over objective rule of law—has been inhibiting more robust investment in the United States, a major cause for our current anemic economic recovery.

An ancient king in the Western Hemisphere, named Mosiah, warned, “because all men are not just it is not expedient that ye should have a king or kings to rule over you.” (Mosiah 29:16) Because men are not consistently just, freedom has historically rested upon rule by law rather than rule by men.

Fundamentally, that was the very reason for the American Revolution. Our revolution was based on the rule of law, an assertion of the rule of law, a response to violations of the rule of law by the English king and parliament. Most of the Declaration of Independence is a lengthy litany of violations of law by the English rulers. The Revolution was designed to take power away from man and men and rest it upon laws and rights, soon to be secured by a written supreme law embodied in the Constitution. Any erosion in the force and effect of the Constitution is an erosion of the rule of law and of the freedoms that rely upon law for their defense.

The Progressive Movement that thrived about a century ago, and found a major advocate in the federal government in President Woodrow Wilson, aggressively proposed an alternative to the rule of law. This program was the Rule of Experts. Their new view—and it really was a very old view though they dressed it up in modern-sounding rhetoric—was that there are Benign People, Experts, who know the process of modern government better than most people do, to whom we can safely yield governing authorities.

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

The modern Rule of Experts people have much the same view, that these experts were endowed by their universities and other sources of expertise with ability far above that of most, and it would be wise to trust ourselves to their benign care. Not very democratic, and in fact these Benign Experts make no secret of their impatience with the Congress and other constitutional brakes on arbitrary authority.

As King Mosiah wisely pointed out that men are not always just, it is also appropriate to recognize that putting men in government does not make them any more reliably wise than the rest of us. The American Founders thought to address this problem by dividing political power among not only three branches in the Federal Government but also by embracing the federal system of dividing government with the States.

The current regulatory structure and program of the United States rest heavily on the idea that Benign Experts should be entrusted with authority for many of the big questions facing Americans and for many of the much smaller questions, too. That is certainly the structure of the Dodd-Frank Act, to offer one recent, prominent example among many.

Charles Calomiris, of the Columbia University business school, described the theory of the Dodd-Frank Act and related regulations this way:

The implicit theory behind these sorts of initiatives, to the extent that there is a theory, is that the recent crisis happened because regulatory standards were not quite complex enough, because the extensive discretionary authority of bank supervisors was not great enough, and because rules and regulations prohibiting or discouraging specific practices were not sufficiently extensive.
(Charles W. Calomiris, “Meaningful Banking Reform and Why it Is so Unlikely,” VoxEU, January 8, 2013)

This program of federal regulation has been imposed increasingly in contravention of the basic constitutional principle of separation of powers, by merging legislative, executive, and judicial authority in “independent” regulatory agencies. The unelected federal regulator today decides the details and specifics of binding mandates, identifies violators of those regulations, assesses guilt, and applies penalties.

Taken together our current regulatory system, by merging rather than maintaining the separation of powers of the Constitution, is eroding the rule of law. It is returning us to the age old practice of rule by men, with all of the potential for abuse of rights and freedoms, abuses that fill up most of the sadder pages of human history.

During the debate over the creation of the new financial consumer Bureau, Senate Banking Committee Chairman Dodd boasted that with this new agency people would no longer have to come to Congress for the enactment of new consumer laws. The Bureau would take care of all that.

There are serious operational flaws—too often overlooked—in the program of governance by Benign Experts. First, the regulators are not dispassionate umpires, limited to calling the balls and strikes. These umpires are also players in the game, the federal agencies each having their own set of particular interests and incentives that they take care of first.

Second, reliance on Benign Experts assumes an unproven, undemonstrated level of knowledge, insight, and forecasting skills. AEI President Arthur Brooks, in his book, The Battle, provides one of many examples of this flaw:

Federal Reserve economists were still forecasting significant positive growth and moderate unemployment in May and June 2008. They believed that economic growth in 2009 would be 2.4 percent, and unemployment would be 5.5 percent. What we experienced instead was negative growth, double-digit unemployment, and the destruction of at least $50 trillion in worldwide wealth. No one can get the numbers exactly right, to be sure. But getting them this much wrong certainly lends a whole new meaning to the expression ‘margin of error.’
(Arthur C. Brooks, The Battle, p.46)

It is not that regulators are dumber than the rest of the population, but they are no smarter either. The regulatory problems are increasingly too great for any designated group of humans to solve.

Third flaw, mission creep: power attracts power. Even if the tasks are too great, require too much knowledge, insight, foresight, and other skills in unachievable degree, the regulators still take them on, especially if the task increases the reach and influence of the agency.

I offer two examples from an example-rich environment.

Basel III capital rules started from a simple idea, that banks all around the world should be subject to the same capital standards. Capital (the financial cushion a bank carries against losses) is one of the three key elements of sound banking, the other two being liquidity and earnings. These international rules did not remain simple. Developed by an international team of experts from around the world, who labored on them for years, the rules number hundreds of pages, affecting the entire financial structure and business model of a bank, any bank. Congress was not involved and has no particular role in approving the rules. When exposed to public review they attracted thousands of comment letters expressing dismay that they are a bad fit for the U.S. economy. In the end, though, the regulators can go ahead with what they alone think is best.

A second example would be the Federal Reserve. One hundred years ago this year the Fed was created with a specific, identifiable, and rather narrow purpose, to provide liquidity for the banking system in times of financial stress. Before long, the Federal Reserve gained control of monetary policy and built up the practice of controlling interest rates. Later, it was given the task of promoting maximum employment. Under Dodd-Frank the Federal Reserve’s role in supervising banks and bank holding companies was expanded to supervising any financial business considered to be significant for financial stability. Each of these powers has drawn the Federal Reserve away from its narrow, objective task, to broad fields of subjective authority.

Perversely, this expansion of authority into more judgmental areas is eroding the independence of the Federal Reserve, making it yet one more political player in Washington, with responsibilities that far exceed human ability to fulfill, but which reach to every business and every home. The Fed’s prolonged policy of keeping short-term interest rates at or about zero has penalized all who save and live off of their savings, transferring trillions of dollars from savers to borrowers, the biggest borrower being the Federal Government, a policy decided by a small group of Washington experts.

I offer a partial but simple solution to point us back toward strengthening the rule of law and reducing our exposure to the rule of man and men, however expert they might be. Return the lawmaking and the policy decisions to the elected representatives. It is a messy process, but 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 left with the duty of implementing the laws and policy decisions that the elected and accountable representatives make.

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

We would still have laws and regulations, but the laws might be more direct and specific, and perhaps fewer and surely smaller. We would probably not have Dodd-Frank Acts that number thousands of pages read by no congressman or Senator, containing a cacophony of half-baked ideas and multiple solutions to the same problem, all left for the regulators to sort out.

And legislators might recall this caution, from Thomas Paine:

Laws difficult to be executed cannot be generally good.
(Thomas Paine, The Rights of Man)

(First published February 17, 2013)