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PaperclipPerfector  2mo ago (text post)   35699 thread views

Culture War Roundup for the week of February 3, 2025

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The United States was not meant to be a "democracy." Benjamin Franklin famously described the government created by the Constitutional Convention as "A republic, if you can keep it."

While there were certainly people in the founding generation who saw a place for a heavy democratic element in the United States, such as Thomas Paine and Thomas Jefferson, I think it is fair to say that most educated gentlemen around the time of the founding were steeped in a tradition going back to Aristotle and Plato where "democracy" was the term for a bad form of government by the many.

Despite Alexander Hamilton advocating for the current Constitution, his original hours-long presentation to the Congress had a much stronger executive, and Hamilton famously told Jefferson, "The greatest man who ever lived was Julius Caesar." There's many ways to interpret this statement, but I think it is obvious that Hamilton hadn't completely shaken off the monarchical thinking of an Englishman, and wanted a strong central authority as the best guarantee of liberty for the people.

Federalist Paper 51, written by Madison, describes how the checks and balances of the United States republic are meant to function. The whole letter is worth a read, but I will focus on one part:

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.

(Emphasis mine.)

Schlessinger's The Imperial Presidency, and Higgs' Crisis and Leviathan both document how this vision failed from different angles. Schlessinger examines the history of the growth of executive power, and the various techniques presidents used to get their way - from operating secret naval wars without congressional approval and oversight, to the use of impoundment to appropriate funds earmarked by congress (which was eventually eliminated after the Nixon presidency, due to his perceived abuse of the power.) Higgs looks at the way that crises created opportunities for the federal government to seize ever greater power, and while it is not limited to the growth in presidential power, it is impossible to ignore all of the emergency powers Congress ceded to the President across the constant cycle of crises.

Higgs was writing in 1987, and Schlessinger in 1973, and the trends they described have only continued.

And so we come to the present day, where Donald Trump became President on January 20th, and began what some are calling an "autocoup." On a diverse forum like this one, I am sure that there are at least a few monarchists that would be thrilled if that was true. I'm sure I can't convince them that an autocoup would be a bad thing, if that is, in fact, what is happening. But for the classical liberals, libertarians, conservatives and centrist institutionalists, I want to make the case that the way things happen matters as much as what is actually happening.

Some are defending actions like Elon Musk's DOGE dismantling the Department of Education without any apparent legal backing, by saying that this is what Trump supporters voted for.

But this simply isn't true. Or more accurately, that's not how this works.

I repeat: America is not a "democracy." America is a republic with checks and balances and a rule of law.

To the extent that we have democratic elements in our republic, then I certainly think that Trump and his supporters should be able to do what they were elected to do. If they want to pass an actual law that gets rid of USAID or the Department of Education, then let them do it. If they want to pass a law to rename The United States Digital Service, and give it unlimited power to control federal funding, then they should pass a law to do so. And if they can't get the Congress they voted in to make it happen, too bad, that is how a Republic works. The same applies if federal judges or the supreme court strike down a law or action as unconstitutional. One person doesn't just get the power to do whatever they want, without any oversight or pushback from the legislative or judicial branches.

I think the United States seems to be heading for a form of democratic tyranny, with few checks and balances. I don't know if there has actually been an "autocoup", but I do think there are shades of it in what has been happening the last few weeks, and I think any lover of American liberty and prosperity should be a little bit worried as well, even if they like the effects of a lot of these unilateral actions by the Executive.

EDIT: Typos.

This is just such an insane understanding of the current state. You are complaining about a lack of checks and balances. Fine. Understand that for the last fifty years the administrative state has run amok with functionally no checks. No balances. They fund their own activists and media to make sure they get what they want.

So now we have an executive cutting down that bureaucratic state — an energetic executive trying to eliminate the unelected unaccountable and unconstitutional fourth branch. Yet you are upset about it from a checks and balances? No you need to kill the admin state in order for congress and the presidency to actually have power and therefor effort there to be actual checks.

I have already said words to the effect that I am fine with dismantling the administrative state, if that is what voters want Trump and Congress to do. I am less convinced than you are that Trump couldn't have done this the "right way" with actual laws. Sure, a few Republican lawmakers defecting would scupper his plans, but if they did, that too would be an important check in our system working as intended.

Trump has the bully pulpit. Trump claims he has a mandate. Let him actually do the work of getting the laws he wants passed.

This is a better path for one big reason: If Trump accomplishes his dismantling of the administrative state via EOs, that will mean that if Democrats ever get the presidency again they can just bring the administrative state back even if it will take some doing. This is all assuming we actually have a republic where Democrats could actually get back into power again, of course.

I am less convinced than you are that Trump couldn't have done this the "right way" with actual laws.

Respectfully, are you an administrative lawyer? How familiar are you with the Administrative Procedures Act and the dozens of legislative and executive actions which together, in concert, have intertwined to create the tangled mess that is the current administrative state? How familiar are you with the history of the legislative veto and INS v. Chadha?

It's not reducible to schoolhouse rock-tier "you need congress to pass a law," and you shouldn't minimize the legal and bureaucratic infighting that's taking place.

Isn't it? Trump, 50 R senators, and a R majority of the House could pretty much immediately nuke the filibuster and repeal/revoke all of that. They're not going to, and that's, depending on your perspective, the checks and balances working, or the checks and balances failing, but they could.

They don't have to, and shouldn't have to just because people don't actually understand the state of the law and the left is willing to strategically misrepresent and/or lie about it when it suits their purposes (for the record the right isn't much, if at all, better). Significant powers have already been delegated to the President, or arguably unlawfully usurped from its constitutional power as commander in chief (e.g. protection from at-will removal).

I don't think this is true! All of Elon's biggest recent moves directly go against the Impoundment Control Act, an act that passed both houses by huge margins, to prevent exactly defunding parts of the government directly authorized by congress.

This is silly. If you pass a law that is misrepresented or misapplied by the courts then you absolutely should have Congress pass a law that unambiguously makes that misrepresentation impossible.

There is no such thing as "unambiguously makes that misrepresentation impossible." The Civil Rights Act of 1965 was passed with the direct, spoken intent of not permitting such things as ethnic quotas or racially-preferential hiring/"affirmative action." It got perverted into, depending on who's doing the enforcing, either outright requiring or just permitting such actions anyway.

I think you didn’t understand or I didn’t clarify the word “that” in there.

It is not possible to unambiguously make all misrepresentations impossible in advance. But once you know of a specific singular and defined misrepresentation, it is quite easy to pass a statutory fix that makes just that specific one no longer possible.

As I said, it’s an iterative game. Except one side loses interest after a few rounds

This is silly. If you pass a law that is misrepresented or misapplied by the courts then you absolutely should have Congress pass a law that unambiguously makes that misrepresentation impossible.

Their power to misinterpret is greater than your power to wordsmith; you cannot write something that cannot be misrepresented by a sufficiently hostile actor.

It’s an iterative game! You win because you always have the right of immediate response whereas the opponent has to go back to the district court and start over.

Meanwhile each misrepresentation because more and more fantastical along the way.

This is literally Congress’ primary job!

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