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PaperclipPerfector  2mo ago (text post)   35712 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.

Understand that for the last fifty years the administrative state has run amok with functionally no checks.

Can you give a specific example of this you think is representative? I think there are a lot of possible criticisms of government bureaucracy, but they are very 'checked' by congress and the courts. Courts limit or grant power to agencies all the time, and Congress for the most part creates them and grants them any of the power they have. Agencies can't do most things they want to do, and they have to work within the complicated game the courts and legislature and president present them. That's the checks and balances doing their thing. The output is obviously not ideal, but 'bad outcome' doesn't mean 'no checks or balances'!

Interstate commerce regulations are a big problem. Basically, Congress was given the power to regulate “interstate commerce”, which by now has been stretched by the administrative state to mean “anything a person can conceive of offering for sale, even if it never crosses sate lines, and even if nobody actually buys or sells it.” This redefinition of “interstate commerce” is the reason for most of the overreaching by the AS, because it allowed them to basically regulate all commerce anywhere. Which is why we have things like regulations on the kinds of toilets you can install in your house, or tge kinds of materials that can be used in mattresses. You name it, there’s a regulation for it, and most of it traces back to an insane court ruling that allowed the government to tax wheat grown on private property, and not only had no intention of selling it across state lines, but had no intention to sell it at all.

I think that's a great example of aggressive reinterpretation of the constitution effectively changing the meaning. To some extent I think that - constitutional statesmanship, legal realism - is a good thing - I don't think the country would be better without the interstate commerce hack, I like that I can buy food in Alabama and know it's bound by federal regulations. (The alternative isn't no regulation, it's just having individual states set all regulations, I odn't think that's necessarily better).

I don't think that's a good example of a 'lack of checks and balances' for 'the administrative state'. It's an example of a negotiation between different centers of power, where the judiciary grants somewhat more power to the legislature at the expense of the states. The legislature has selectively granted a small amount of that power to the administrative state.

Individual states would have laws about things that only are made, bought, and sold within that state. So if I own a restaurant with locations only in Alabama, using ingredients sourced in Alabama, then nothing about the situation would be subject to interstate commerce laws. That’s the world of the original intent of the laws. And a huge benefit is that such a thing offers protection to small businesses as any large conglomerates would be subject to a lot of federal laws that a small local business isn’t. It would allow local restaurants to compete against the chain restaurants by giving them enough of a break that they can stay in business because they don’t have as high of a cost to own or run a business.

The problem is that the definition of “interstate” has been stretched beyond all reasonable definitions. There’s no way that a person living in the United States even today would come to the conclusion that wheat grown on your personal property with no intention of selling it has anything to do with interstate commerce, heck, there’s not even a cause to call it commerce— nothing is being sold. There’s a case perhaps if you sell to someone else who has the intent of reselling across state lines that anything sold to such a reseller could be covered under interstate commerce laws, but things that don’t enter or leave the state are not interstate.

That’s the world of the original intent of the laws

Yeah, and I think this is substantively, object-level worse than the current system. I want to go to a restaurant in Florida without thinking about Florida food safety laws. For someone who lives in a smaller state, I want EPA regulations to apply to economic activity in neighboring states, because I ultimately share their air and water. In general it's sometimes easier to notice examples of regulatory overreach and don't notice all the skulls that regulations exist to patch up.

It would allow local restaurants to compete against the chain restaurants by giving them enough of a break that they can stay in business because they don’t have as high of a cost to own or run a business.

Right but it'd give them breaks on things like 'the food not having parasites and bacterial overgrowth' and pesticide use. I don't want that!

... Also as many of the regulations stifling local businesses are state-level or local as are federal, so I'm not sure this'd help in the long run.

The problem is that the definition of “interstate” has been stretched beyond all reasonable definitions

Yeah, it's an example of 'constitutional statesmanship'. The law says one thing, but it's just quite a lot better for the outcome to be the other thing, and this law's in the constitution so nobody else can change it - so let's just do the other thing. It shouldn't happen often, but it should sometimes! I mean, the decision giving SCOTUS the power to invalidate laws was itself an example of statesmanship, it's not really in the constitution either.

I’m not American and I’m pretty against having a constitution for various reasons, but surely this is what a constitution is meant to be for? To be prevent people saying ‘well, the constitution says we can’t do X and we can’t persuade a supermajority of people otherwise, but I think it would be better if we did so let’s do it anyway”.

It's just that it's not absolute! Having a constitutions moves you most of the way from 'the sovereign does whatever it wants' to 'you must strictly follow this document'. Just not all.

(I'm not claiming that the above is the way most lawyers or legal scholars would phrase it, although the article I linked was from a very good legal writer who also actively works on appellate and supreme court cases)

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