“Well, imagine that someone proposed that the key to establishing social justice and restraining corporate greed was to establish a very large corporation, much larger than any corporation hitherto known. A corporation that held a monopoly on some extremely important market within our society, and used its monopoly in that market to extend its control into other markets, hired men with guns to force customers to buy its product at whatever price it chose, and periodically bombed the employees and customers of corporations in other countries. By what theory would we predict that this corporation, above all others, could be trusted to serve our interests and to protect us both from criminals and from all the other corporations? If someone proposed to establish a corporation like this, would your worries be assured the moment you learned that every adult would be issued one share of stock in this corporation, entitling them to vote for members of the board of directors? If it would not, is the governmental system really so different from that scenario as to explain why we may trust a national government to selflessly serve and protect the rest of society?”
In one episode of The Simpsons, a comet is headed straight for Springfield. A bill was introduced in Congress to help save Springfield from destruction, but at the last second, someone tacked on another bill to give money to “support the perverted arts”. Naturally, the bill failed, prompting this classic quote from Kent Brockman:
In the context of the show, this was clearly a joke. However, I intend to show that, indeed, “democracy simply doesn’t work.”
Furthermore, I intend to show that not only does democracy not work, but that it is inherently utopian. For the purpose of this essay, a belief system is considered utopian if it requires a change in human nature without proposing a mechanism by which that change can take place. Wherever applicable, I have included scenes from The Simpsons that either buttress this view, or are merely relevant and entertaining.
As an anarchist, I support the abolition of all government. Most people consider this a “radical” view (true, in that it differs from the mainstream view considerably), and would label it as utopian. Most people consider democracy to be a form of government that has some problems, but is generally good.
There are a number of reasons that most people think that democracy “works”. In the limited space of this blog post, I will address some of the most common ones. While democracy may be a vastly preferable system to a totalitarian state, the main reasons we are taught that democracy is a good system are based off of utopian assumptions. There is more than enough evidence to show that, in practice, democracy can never work the way its proponents intend.
I will address the following methods by which proponents of democracy claim that liberty can be maintained through limiting the power of government:
- People have a say in their government’s decisions by exercising their right to vote
- Activism can help change the system for the better
- The media can keep tabs on what the government is doing and keep the populace informed
- Public education leads to an informed populace
- Constitutional limits prevent government overreach
- Checks and balances ensure that power is decentralized
My intention is not to say that these are bad things and should be done away with (they should, but only in the context of removing government entirely). Surely, they have prevented some amount of potential abuse of government power.
However, these methods are insufficient, and they do not perform anywhere nearly as well as proponents of democratic government believe.
People have a say in their government’s decisions by exercising their right to vote
Pro-Democracy: Most people are aware of their interests and vote in favor of their interests. Therefore, elected leaders in a democracy are those individuals who best serve the interests of the majority of the citizenry.
The most obvious and basic critique of this viewpoint is that the majority has the power to abuse the minority. That is how, for example, laws against gay marriage can exist in a democratic state, even to this day.
It’s also how such repugnant laws such as the Fugitive Slave Act and the Jim Crow laws could exist.
But it isn’t just minorities either; nonvoters end up without any form of representation whatsoever in government decision-making.
This includes women who couldn’t vote until 1920, with the passage of the 19th Amendment to the constitution. For more than half of America’s history, 50% of the population automatically fell into this category.
“But women CAN vote now, so problem solved,” you say.
But it isn’t just women. Both convicted felons and people under the age of 18 are not allowed to vote, either. These groups are just as affected by public policies as everyone else (and in the convict’s case, likely moreso), yet they have no voting rights over these policies.
Children of age 17 are qualitatively the same as adults of age 18, yet one can vote and the other can’t. And felons can be victims of unjust laws, but still be denied the vote. Consider, say, drug laws. Someone caught selling marijuana can no longer vote, even though the legal status of these drugs is under serious debate.
What about foreigners? They are affected by state policies, such as immigration laws, travel restrictions, trade policies, and most notably, war. The hundreds of thousands of Iraqi civilians who died as a direct consequence of the US invasion had no say in the decision to go to war.
Finally, your vote makes no difference on the outcome of an election. This is mathematically obvious, yet somehow the myth that “your vote counts” persists.
No, your vote does not count. In order for your vote to determine anything, the outcome of the election (excluding yourself) would need to either be a tie, or have a one vote difference, with your vote being for the candidate who was losing (thus making it a tie).
The chances of this happening in a national election are negligible, and for other elections, still miniscule. For instance, take a look at this list of close elections throughout the world. There were a handful of ties or elections determined by a single vote, but nearly all of these were more local elections within sparsely populated Canadian territories. Every one of these elections had less than 40,000 total votes cast, most with well under 10,000. Consider that Wyoming had over 422,000 eligible voters during the 2012 presidential election, and this is the state with the lowest number.
Keep in mind that population growth makes the odds of your vote mattering decrease during every election cycle.
PD: An individual vote may not matter, but the voters as a whole have a huge amount of power.
While this may be true, it is not relevant to any given voter’s rational decision-making. This point will be addressed more thoroughly in the next section. For now, it is worth noting that, as an individual, you may have the power to sway a handful of votes, but rarely a significant amount.
Even so, the most robust of modern research on the topic has concluded that even mass groups of voters have a minimal effect on public policy. Rather, it is interest groups and powerful business interests that control policy outcomes. How else would incumbents win in Congressional elections over 90% of the time, even in a year like 2010 where people were particularly unsatisfied with their representatives?
PD: It costs you nothing to vote, so a rational individual will still vote for whoever serves their best interests. The probability of your vote mattering may be small, but it is positive, so there is still a positive expected return.
This is simply not true. There are considerable costs to voting in your best interest.
The act of voting itself requires taking time out of your day to make it to the polling station. In and of itself, this cost surely outweighs the very low expected benefit of voting.
But this is the least of the costs. In order to vote in your best interests, you must become an informed voter. This means familiarizing yourself with all the candidates and their voting records, plus understanding the actual content of the bills that they have voted on.
Not only that, but you must understand how these bills affect you personally. This requires and understanding of economics, foreign policy, dozens of different industries, etc. And you must make a concerted effort to eliminate any emotional biases you have surrounding each and every one of these issues. This is no small task.
Empirically, we see that political knowledge is abysmally weak. For instance, a 2006 survey found that only 42 percent of Americans can even name the three branches of the federal government.
Not only are voters ignorant, but they are also irrational. Considerable biases affect voter perception, causing individuals to vote against their best interests. For instance, protectionist economic policies hurt everyone, yet all democracies have them (and are supported by large groups of people), despite hundreds of years of economists warning about their negative effects.
Worse yet, politicians are aware that their constituency is not well informed. Therefore, they know that they can freely vote on mere whims and give specious arguments to support their decision, without being held accountable. Hell, they don’t even have to familiarize themselves with the bills that they are voting on! Bills are often hundreds or thousands of pages long, released hours before the vote, and have various insertions and deletions done at the last second.
Furthermore, rent-seeking makes it even less rational for your average voter to become informed. Most bills will benefit a few people or organizations to a large degree, at the expense of many people to a much smaller degree.
You, as a voter, have almost no incentive to educate yourself and others or try to influence the election for mild savings. The large businesses who benefit can afford to spend millions of dollars lobbying for these policies that will give them even more money. And you wouldn’t need to familiarize yourself with and influence the vote on just one issue, but many.
An example here would be instructive. Consider the sufficiently bland subject of excessive federal reimbursement for anti-anemia drugs. A massive industry lobbying effort (over $8 million since 2009) has prompted a huge bipartisan coalition in Congress to reverse their previous decision and reduce their planned cuts in this corporate subsidy. All at taxpayer expense, of course.
That’s a fairly obscure issue, so imagine familiarizing yourself not just with that, but with thousands of proposed policies. Corporate welfare made up $100 billion in the 2012 federal budget, but each individual issue only costs you a small amount of money by itself.
Utopian Analysis: Voters would need to become completely irrational in order to make voting an appropriate means of people securing their best interests. Of course, once you assume people to be irrational, then the whole exercise of voting becomes silly.
Activism can help change the system for the better
PD: In a democracy, the public is active, and people can send letters to their representatives or otherwise put pressure on them to act responsibly and in the public interest.
It is generally not in an individual’s best interest to be an activist. We’ve gone over part of this in the previous section, since it is generally not in a given person’s interest to become informed. But it goes beyond that when it comes to activism.
I will readily acknowledge that activism can and does sometimes work. Gandhi and the civil rights movement come to mind. But these cases only happen (and only occasionally) in the most egregious cases of mass abuse by government. In everyday cases of government abuse, it is utopian to think that people will put in this kind of effort.
Even the most conscientious activist, devoting 100% of their time to monitoring government activities, could only familiarize himself with a tiny fraction of government activity.
It’s not just the problem of becoming informed; there are significant additional costs and risks to activism.
For instance, voicing your political views can be dangerous at work or for social reasons. People tend not to want to rock the boat in these areas, and most people don’t have the stomach to have their potentially unpopular political views known to their colleagues or acquaintances.
But the real risks come from the way governments, even democratic ones, look at activists. In America, practicing civil disobedience can get you labeled as a terrorist.
There is a rich history of democratic government spying on activists, right through today. Department of Homeland Security policy involves the day to day spying on activists, and the NSA has been spying on prominent Muslim-Americans since at least 2002. Anyone who visits the WikiLeaks website is getting their data captured by the NSA as well.
And then, of course, there is COINTELPRO, the secret FBI program that involved spying on and infiltrating political organizations between 1956 and 1971. If you’ve never heard of this, go read the linked Wikipedia article and tell me with a straight face that you still trust this government. It didn’t even take ten years after the constitution before the US passed the Alien and Sedition acts to punish dissent.
It’s not just illegal and unjustified surveillance; the odds are extra against activists’ success.
For instance, the GCHQ (Britain’s version of the NSA) has been manipulating public debate by hacking online polls to change their results, directing traffic to specific sites, and censoring “extremist” content. You can be sure that the NSA is engaging in similar activities.
Some of the most disturbing government behavior in this area is how they are deliberately destroying the reputations of activists online. This includes posting fake material and attributing it to the activist, pretending to be a victim of the person whose reputation they want to destroy, and posting “negative information” on various forums.
Utopian Analysis: The vast majority of people will not subject themselves to the extreme costs, both in informing themselves properly, as well as the risks of privacy violations or having their reputation destroyed, in order to have an almost non-existent chance of influencing government policy. While a handful of people will still choose to be activists, the odds are stacked heavily against them.
The media can keep tabs on what the government is doing and keep the populace informed
PD: We don’t need to do all the work of watching government ourselves. We can delegate this responsibility to the media, who will then alert and inform the public of government transgressions.
At least on the face of it, this sounds somewhat plausible. And in fact, the media has helped uncover many abuses (in recent years, this is primarily due to the influence of alternative media, however).
But while the media can and does sometimes help in this effort, there are systemic reasons why it doesn’t work this way in general.
Before going any further, it is worth noting right off the bat that in 2014, the US ranked 46th in the world in terms of press freedom in Reporters Without Borders’s annual index. I would have expected a bit higher in “the land of the free”.
We must remember that the media, like any business, caters to the desires of their consumers. There is nothing wrong with this per se, but it does cause significant problems with the “pro-democracy” idea above.
For the reasons outlined in earlier sections of this post, most people are not willing to invest the time to educate themselves about issues. Therefore, much of the news is about entertainment, not information. People tend to be more interested in the latest celebrity gossip than the intricacies of a recent Supreme Court case, so that is what the media will tend to focus on.
Regardless of how great some reporters might be, if people don’t want to educate themselves, then the media simply will not do the work for them. And when important issues are being covered, it is easier for the journalist to accept a government spokesman’s account rather than doing serious investigation of any complex issues. It’s even easier (and cheaper) to post opinion pieces and interviews, which are making up a larger and larger share of media time.
But there are more “dark and sinister” reasons to be skeptical that the media can help patrol against government abuses.
Government officials may become angered by overly critical pieces and have the power of coercion to respond (picture Julian Assange, Chelsea Manning, Edward Snowden, Daniel Ellsberg, the detention of David Miranda, etc.). If you reveal something too close to the heart of the National Security State, you will be punished. Consider James Risen, who is being coerced by the federal government for refusing to reveal a source for a book he wrote exposing the CIA.
The fact is, potential government sources are highly unlikely to provide information to journalists known to be critical of the government. And who can blame them? People tend not to like publicizing their own failures or being made to look bad.
Since government controls access to critical sources and information, this is a significant point. The government restricts physical access to sources, selectively provides information that highlights the administration’s successes rather than failures, and prescreens reporters’ questions or only allows scripted ones.
It doesn’t help that the major news networks are owned by the same few organizations. In fact, six giant conglomerates control over 90% of what you watch, read, and listen to. These corporate giants have their own agenda, and are deeply in bed with the government. Surely, media “objectivity” is affected when the Federal government is one of the largest advertisers.
A number of prominent journalists have exposed examples of media corruption, often being fired or otherwise suffering consequences in the process. These include withholding negative information about both corporate sponsors as well as government corruption and abuse.
In my opinion the most glaring recent example of the media not informing the populace of important information was with Iceland’s “pots and pans” revolution in 2009-10. The mainstream media in the US was completely silent about this event, and yet it was among the most important world events at the time. This was a peaceful revolution where the government was overthrown, and the fraudulent banksters were thrown in jail. Maybe, just maybe, this was because they didn’t want to give Americans any ideas?
Finally, I’d like to point out that there is overt government manipulation of the media. Most people refuse to believe things like this, because it is so depressing in a lot of ways. For starters, there is well documented collusion between the New York Times and the CIA. This isn’t too surprising, however, since they regularly push fabricated evidence in attempts to promote warfare and militarism.
The CIA isn’t just working with the NYT; there is a deliberate campaign to manipulate the media in general. Operation Mockingbird, which began in the 1950s, involved (among other things) recruiting journalists to push the CIA’s version of “news”. You can be sure similar work is being done today.
PD: Because of the Freedom of Information Act (FOIA), the government must give out information to anyone who wants it.
The FOIA is certainly a positive thing, and to some extent, it does help foster transparency in government. However, it is far from a panacea.
The FOIA is one of the most ignored laws on the books, sometimes not respected at all, other times taking years to fulfill the request (legally must be within 20 days). The Department of Justice claims to release almost 95% of requests, but those numbers are a bit fuzzy. There are legitimate reasons why not all documents are released in a timely manner, including the cost of providing these documents and the sheer volume of requests. In any case, it isn’t as though you can receive any document you want.
In fact, more and more, the US is citing national security as an excuse to censor or reject FOIA requests. In 2013, the Obama administration censored or rejected more requests than it granted outright. Some of these denials are surely legitimate, but it’s hard to believe that there are so many more security threats now than there have been in the past. This is a disturbing trend.
But the scariest thing is that some agencies, notably the powerful and secretive Office of Information and Regulatory Affairs (OIRA), are exempt from FOIA requests. Nobody knows who works for them or what their credentials are, but the majority of federal regulations are altered by them, without oversight, and often without explanation. Sounds pretty shady to me.
Utopian Analysis: While the media can expose some government excess (and the alternative media is increasingly promising), there are structural reasons why we can never rely on the media to keep us informed. So long as people don’t want to be informed, the media won’t provide it for them. And so long as government controls access to the most important information regarding its own excesses, it has no reason to share. The occasional brilliant journalism that we do see is the exception, not the rule.
Public education leads to an informed populace
PD: Public education leads to an informed populace of independent thinkers who will hold their government accountable.
On the contrary, public education leads to conformity, stifles dissent, and teaches children to obey authority.
At this point, many people will accuse me of going off the deep end or being a “conspiracy theorist” (as if that actually meant something), but this is NOT a controversial point. It is merely forgotten history.
The idea of public schooling grew out of a desire to create more malleable, easy to control citizens. The intention was to homogenize students and create obedient workers.
I will not go into the history of public schooling here, but for a fascinating and fairly short exposition (6-7 pages), I highly recommend you check this out: The Origins of the Prussian System. If you want far more detail, here is an archive of articles by John Taylor Gatto, an award winning teacher who has studied this extensively.
The father of public education in America, Horace Mann, observed the Prussian system of education and gave it a glowing review before bringing it back to America. But even supporters of public schooling didn’t beat around the bush regarding its purpose. Take this, from William Torrey Harris, US Commissioner of Education (1889-1906):
“[Ideally] ninety-nine [students] out of one hundred are automata, careful to walk in prescribed paths, careful to follow the prescribed custom. This is not an accident but the result of substantial education, which scientifically defined, is the subsumption of the individual.” (as quoted by Gatto, 2010, p. 13)
And things haven’t changed. While the rhetoric may be about “equal opportunity” and the like, dissenters are still punished. Consider these high school students who were suspended for political activism on campus.
The system of public education is necessarily propagandistic, regardless of the intention. Bringing government into it means standardization, and one size fits all policies.
For instance, required certifications for teaching means that the authority figures are fairly homogenous as well, not just the students. Creative or unorthodox teaching styles are discouraged, as is experimentation. Teachers are no longer wise mentors, but rather bureaucrats who are required to teach within a specified curriculum (and to standardized tests).
The government also gets involved in library and curriculum selection, which helps them frame the debate that takes place within the halls of the school. Do you think the government is really going to choose materials that threaten them? Could you ever see this article being referenced in a public school classroom?
While private schools could, in theory, provide some counterbalance, the sheer cost of sending your child to one is prohibitive. That, and the US government still has control over the curriculum for private schools.
Common standards have a stifling effect on knowledge and learning. But that isn’t stopping the government’s push to adopt Common Core, a national set of standards. While proponents may claim that it is about improving education, a look at one of the Common Core exercises that was released tells a different story. Some of the great things that these standards are going to teach America’s children include that “The wants of an individual are less important than the well-being of the nation,” and that “The commands of government officials must be obeyed by all.”
It’s not just Common Core; schools are already being used to craft obedient citizens. Consider this example of 3rd grade homework, where we learn, among other things, that “good citizens do not argue”. Or this 4th grade homework that teaches that government is like family.
You could argue that these are isolated instances. And perhaps they are. But the very structure of the classroom is designed to foster obedience to authority from a young age.
When a student wants the teacher’s attention they must raise their hand and wait to be called upon. Attendance is compulsory, often enforced by taking roll call in the morning. Children are seated in rows (isolated), silenced, and made to perform rote tasks and busy work. Assignments are mandatory. The children must be seated when the bell rings, or else get in trouble. Speaking of which, there are disciplinarians and punishments for breaking what are often arbitrary rules. There are specially designated times for lunch and recess, so students can’t just eat when they are hungry. The student must ask to go to the bathroom. One county has even mandated see through book bags, and biosensors are being developed to detect whether children are paying attention or not.
There are some rational reasons for some of these policies, of course, but it’s not like there aren’t other successful models of education, such as democratic schools, where students choose whether they want to attend and what they learn.
Even if you choose to not believe that the intention of public education is to create obedient, one-size-fits-all students, you can see that this is necessarily the effect. This mass of citizens, conditioned to obey, is very unlikely to start any kind of revolution, certainly not one every twenty years as Thomas Jefferson suggested.
PD: Higher education is different. Students are more mature and are taught many different viewpoints.
University-age students are surely more mature and open minded than elementary school students. As such, they are more capable of free thought.
Despite that potential, higher education, rather than leading to independent thinking, has some of the strictest rules against independent thought! Whatever rebellious ideas students may have largely get funneled into supporting the establishment, rather than fighting it.
It is well known that college professors tend to be more liberal. Students may believe they are fighting authority by being liberal (and when they are being anti-war, they are), but almost all support big government. The radicals are the socialists, who support even bigger government.
The preponderance of liberal/progressive ideals on campus is self-reinforcing. According to this study, even after taking into account merit and numerous other factors, more conservative professors tend to teach at lower quality institutions. This hardly fosters debate and the free flow of ideas.
In fact, students and faculty who take the “wrong” stance often get punished. Take the unfortunate ordeals that Professors Hans-Hermann Hoppe and Walter Block have had to go through because people have misinterpreted their views. And then here are a few absurd examples of liberalism gone wild on campus. Particularly silly is the student who was found guilty of racial harassment without a hearing, because he was reading a book with a picture of the KKK on the cover. Never mind that a major point of the book was to celebrate the defeat of the KKK. All that matters is that some people got offended!
Perhaps even worse than the stifling of ideas and academic freedom on campus is the crippling debt that young people are put in when they graduate. Saddled with debt, these young adults become dependent on the system itself, and are far less likely to practice any form of dissent.
In 2012, 71 percent of graduates had debt, an average level of $29,400. This debt cannot be discharged, and it is increasingly difficult for college graduates to find decent work (if any) these days. This basically turns people into debt slaves. I won’t dwell on the point here, as it has been sufficiently covered elsewhere. For those of you who want more information, here are some disturbing statistics about college loans, and here is an infographic describing the history if this scam.
Utopian Analysis: A government with the power to determine the curriculum, the rules of education, the qualifications for teachers, and so on, will never find it rational to teach children to think for themselves, because this diminishes the government’s power.
Constitutional limits prevent government overreach
“But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”
-Lysander Spooner, No Treason: The Constitution of No Authority
PD: A written constitution, strictly limiting the functions of the state, can limit state powers and make it easier to monitor.
While the US constitution is a radical document, and contains within it many ideals of liberty, it cannot effectively limit the power of the state. Just because a constitution exists does not mean that it will be followed. There would need to be an adequate mechanism in place for ensuring compliance with the constitution, and that simply does not exist.
There was a valiant effort on the part of the framers of the constitution to build in safeguards. But somehow, even these brilliant men could not see the obvious: No other organization has the power to coerce the government. Therefore, the government is responsible for enforcing its own compliance to the document.
PD: The courts/judiciary will nullify unconstitutional laws.
Sure, that is what they are supposed to do. And in many cases, they do! Certainly, in early America, the courts performed this job better than they do now.
But what is to stop a court official from merely judging the way that they feel is right, regardless of the constitution? Who watches the watcher?
The answer, of course, is no one. Judicial activism, or declining to uphold the constitution in favor of ruling how the judge believes proper, is quite common these days.
The size of government would be vastly curtailed if the courts were to actually do their job and follow the constitution. The 9th and 10th Amendments delineate the scope of lawful government activities. Anything that is not in the constitution is not an “enumerated power”, and is not lawful for the Federal government to be involved in. Take a look at Article 1, Section 8 of the constitution, and see what kinds of things are allowed. The whole section is short enough to include in full here:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the Supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
That’s it. If you can’t find it in here, then the Federal government isn’t allowed to do it. This rules out the vast majority of law on the books today.
However, through the use of absurd, specious reasoning, the government can create whatever justification is necessary to consider a given law or regulation constitutional. Consider the case of Wickard vs. Filburn in 1942 (a big shoutout to Professor Michael Huemer for this example, as well as much of the inspiration for this post – read his book, it’s fantastic).
The Roosevelt administration had been continuing with its fascist New Deal policies, and had just passed a law that limited the amount of wheat that farmers could grow, in order to increase the price. Roscoe Filburn was growing wheat to be used to feed the livestock on his own farm. He exceeded the amount that the law allowed him to grow, and the Department of Agriculture fined him. He sued, arguing that there was no constitutional authority for the government to determine how much wheat he could grow on his own farm.
For those of you keeping score at home, go back up a few paragraphs, and try to see where the constitution allows the federal government to restrict the amount of wheat you can grow. Right, it doesn’t.
And yet, the court unanimously decided that the law was legal and justified under the clause: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” According to them, because he grew wheat to feed his livestock, he would buy less from other farmers. This lowers the price of wheat, having an effect on commerce, which may cross state borders.
This justification is laughable. But it happened, and it’s clearly not the only one.
It would be impossible for me to list all of the laws that are in direct violation of the constitution, because that would involve listing out nearly all of the laws in general. But I think a few of the particularly egregious are worth pointing out here.
With Executive Order 9066 in 1942, FDR mandated that Japanese-Americans be interned in camps, an order which the Supreme Court upheld.
In the Dred Scott decision in 1857, the Supreme Court ruled that African Americans, slave or free, were not American citizens and could not sue in federal court.
More recently, the USA PATRIOT Act, which gives the federal government sweeping powers of surveillance over American citizens, is a clear violation of the 4th Amendment. It shouldn’t take a constitutional scholar to see this.
Then there is the REAL ID Act, passed in 2005 but not implemented, which involves national requirements for driver’s licenses as identification. This is not an enumerated power, and is clearly something only the States can do.
Guantanamo, Abu Ghraib, extraordinary rendition programs, and invasive police body cavity searches are all in violation of the 8th Amendment, which is supposed to prevent “cruel and unusual punishment”.
And then there are drone killings. According to the best legal scholars at the White House, it is perfectly constitutional and legal to assassinate American citizens living abroad if they are considered a terrorist threat, even if they haven’t actually done anything. This clearly violates their 5th Amendment right to due process.
The president cannot declare war on a foreign country without congressional approval, and yet that is precisely what Obama did in Libya.
The Federal Reserve is unconstitutional because the constitution says the US government ought to punish counterfeiting, not institutionalize it. Section 10 of the constitution says that only gold and silver coin can be legal tender.
And what about when federal investigators secretly seized two months’ worth of Associated Press phone records? Was this not a 1st Amendment violation?
Again, there are a nearly limitless supply of other examples, but these are some of the more egregious.
PD: Many people believe the constitution is too restrictive anyways. We need to interpret it anew regularly.
Perhaps. But in that case, you can’t expect the constitution to have any weight in terms of limiting the powers of government, by definition.
The government also has the power to amend the constitution, even in ways that nullify itself. If the same organization whose power is supposed to be checked by the constitution has the power to amend it, government abuse has an easy method of justifying itself.
Consider the 18th Amendment, prohibiting the sale and consumption of alcohol. It took a separate amendment, because obviously it is not one of the enumerated powers. But, as nearly everyone today would agree, prohibition was unjust! How quickly people forget, because not too long after, numerous other drugs have been prohibited, without even the formality of amending the constitution.
Utopian Analysis: Having the government be in charge of enforcing its own compliance with the constitution is the equivalent of having criminals be responsible for their own punishment.
Checks and balances ensure that federal power is decentralized
PD: The executive, judicial, and legislative branches each restrain the others from abusing their powers.
Like most of the other items on this list, the separation of powers was a well-intentioned system that has some benefits, yet utterly fails to protect your liberty. There are many cases where checks and balances have at least slowed the growth of tyrannical government, but they will not stop or reverse it.
There is no reason for each branch to use its power to restrain that of the other branches, and no mechanism to ensure that they do this. Is it not just as likely that the various branches will work in tandem to increase all of their powers?
Let’s think about the incentive structure here. If the legislature passes a law that infringes upon the rights and liberties of the citizenry (but has no negative impact on the other branches), there is no incentive for the courts to strike it down or the executive to veto it. Sure, it’s their job. But as we saw in the previous section, this is hardly good enough.
In fact, the more laws that are on the books, the bigger the executive and the judiciary branches need to become in order to enforce the new laws and to try court cases about them. In other words, there is a general inclination for all three branches to grow in power together.
Of particular concern is that the president gets to appoint Supreme Court justices. Naturally, they will make their selection based off of shared ideology rather than some objective qualification. This is a fairly non-controversial point. I have heard numerous people wish for some justices to step down at specific times, so their favored president is the one who gets to appoint the next one.
This makes perfect, rational sense. Why would any president (other than an ideological libertarian one) appoint a judge who intends to decrease the power of the government, including that of the executive branch? This incentive alone practically guarantees the perpetual growth of government. The slate of recent Supreme Court cases ruling in favor of the police state supports this theory.
Some people might counter here that politicians become politicians because they are good people, and their intention is to help, not to gain power. I’m sure this is true of many politicians, but their intentions are irrelevant. If they support policies that concentrate power, it doesn’t matter if it is because they think that concentrated power can be used for good or not. And there is reason to believe that the type of people who tend to become politicians are also the type of people who would behave in a corrupt and dishonest way, as this study shows.
Besides the institutional incentives, there are numerous ways by which the separation of powers has been weakened. For instance, a lot of regulatory functions have been delegated to specific agencies, giving the executive branch considerable lawmaking power.
In fact, the power of the executive branch has grown dramatically over recent years. Consider that Obama has appointed nearly 40 Cabinet officials without legislative approval, went to war in Libya, ordered drone strikes, and repeatedly amended the Affordable Care Act when it suited him politically.
The most disturbing possibility with regards to the separation of powers is that the NSA is spying on prominent members of government, including Congressional representatives. We know that J. Edgar Hoover used the FBI to spy on members of Congress in order to blackmail them (as part of COINTELPRO, mentioned above), so why would it be different now? In the unlikely event that politicians aren’t being blackmailed, much damage can be done when members of Congress are spied on, even just incidentally. The Jane Harman story should teach us this lesson.
Utopian Analysis: The separate branches of government have the incentive to cooperate in order to increase their own power and scope. There is no reason to believe that government officials will behave in ways counter to their own interests, but there is substantial evidence that they will act in dishonest ways to seize more power.
We may have a much better political life now than several hundred years ago, but this is largely due to the spread of classically liberal values, not the political system itself. It is because enough people would be disgusted by certain government behavior that authoritarianism hasn’t fully taken over. But as people become more illiberal, and that is the way we are trending, this protection would be reduced.
A number of these features of democracy may slow down this tendency toward authoritarianism, but they are all inherently flawed. The scale is weighted heavily away from freedom and towards the totalitarian state, and appealing to some of the features of this system can do very little to prevent this from happening.
For this reason, a limited state is impossible. America was the most well conceived government in the history of the world, with the most extensive built in protections to maintain the liberty of the people. And yet even in America, less than 250 years after its founding, the government is hardly recognizable when compared to its original ideals. Even in a democracy, state power will metastasize.