The Idea of Representation and the Problem of Delegation

Lecture delivered at Hillsdale College Center for Teaching Excellence Conference

“The Purpose and Structure of the Constitution”
Fort Worth, Texas
November 12, 2021

The Declaration of Independence names life, liberty, and the pursuit of happiness as our unalienable rights under the laws of Nature and of nature’s God. It goes on to say that the purpose of government is to secure those rights. The problem the Framers of the United States Constitution faced, the problem we face today, the problem every person who has ever lived has faced and always will face is that the power to secure our rights is also the power to suppress them. The tyrant who has me herded into a gas chamber or shot in the back of the head in front of a mass grave cannot destroy my right to life, but he can destroy my life itself. As far as the tyrant is concerned, that’s close enough for government work, and government work entails the exercise of power for good or for bad. While your students, fortunately, are not immediately threatened with a genocidal level of oppression, all of them have experienced small acts of tyranny—getting pushed around in various ways—and some have experienced very grave acts of tyranny, sometimes in their own homes and neighborhoods. They, too understand the underlying problem the Framers confronted and feel its urgency, if not yet on the level of politics.

You can use that fact to answer the perennial questions students ask themselves, and each other: Why should I care about what the teacher is saying? In this case, why should I care about the U.S. Constitution, including such apparently dry subjects as representation, delegation of powers, and separation of powers? And why should I care about politics, which these days seems a circus of overhyped denunciation—not merely overheated but trivial, noisy, boring?

What I mean to do this morning is to show not only why American politics matters to every person who lives in this country, why the Constitution matters, but more particularly, the importance of the topics I’ve been asked to talk about: representation and delegation of powers, which are not ordinarily topics of interest on TikTok.

Start by asking your students, What do you want out of life? Then show them how the American style of politics under the Constitution helps them get it, and why losing their grasp on constitutional self-government might prevent them from getting it. If they want to cut through the rhetorical agitation they see and hear all around them, show them how not to feel about politics—every political flack, every ideologue in the country wants to jerk you around that way—but how to think about politics. Once they start thinking about politics, and especially about self-government, some may begin to think about life beyond what they want out of it. They may even decide they want more out of life than they had thought.

So, starting with the basics, what is politics and why does it matter? Every student sees the nucleus of politics in the life of the family, no matter how that family may be constituted. Aristotle may have lived 2,300 years ago, but he still gives you the common sense of the subject. We all understand that politics involves ruling; as I said a couple of minutes ago, that’s what makes it both indispensable and dangerous. Aristotle identifies three forms of ruling in the family. There is the rule of the parents or parent over the children. That is fundamentally a one-way form of rule, whereby the parents rule the children, preferably for the good of the ruled, the children. There was also, in the households of Aristotle’s time, the rule of the masters over the slaves. That too is one-way rule, but for the good of the rulers, not the ruled. Every household today still has slaves, namely, vacuum cleaners, washing machines, cell phones; most of us are pleased to see that we have no more need for human beings to be deprived of their liberty in order to get our servile work done. Finally, there is the relationship between the adults in the household, those who rule the children and the slaves. If rightly ordered, Aristotle says, that form of rule consists of ruling and being ruled, government by discussion and deliberation, give and take. If wrongly ordered, it consists of the tyranny of one partner over the other. The well-ordered marital relationship of shared rule, of ruling and being ruled in turn, is what Aristotle calls the only genuinely political form of rule.

These forms of rule, which your students already know about in both their good and their bad versions provide the basis of Aristotle’s understanding of politics in the larger community. Aristotle classifies political organizations according to their regimes.

A regime consists of four elements:

1. The rulers of the political community, its “ruling body” or politeuma.
2. The structures or institutions, the ruling officers, whereby the rulers rule—its politeia.
3. The way of life, the Bios ti, of the people who rule and are ruled.
4. The purpose, the tēlos, of the political community—in America, as we’ve seen, securing unalienable natural rights.

Given the three kinds of ruling present or potentially present in a political community, Aristotle lists six main regime types, based on both a numerical and a qualitative criterion:

 

                  GOOD              BAD

ONE           Monarchy        Tyranny

FEW           Aristocracy       Oligarchy

MANY       “Mixed”             Democracy

 

But more than this, Aristotle understands that political communities come in different sizes and feature different degrees of political centralization. Among his Greeks, he saw the small, highly centralized polis or ‘city-state,’ where even rulers in regimes of ‘the many’ could gather in one place and debate the course of political action. He also saw the huge, decentralized empires; his one-time student, Alexander the Great, would add substantially to the Macedonian empire he inherited from his father, Philip of Macedon. In subsequent centuries, others would see the large, decentralized feudal communities, the large, centralized modern states (sometimes linked in confederations), and the potentially universal empires of Church and Ummah.

With the knowledge of this way of understanding politics, of regimes and states, your students can begin to understand not only the politics of the family of their town, their state, their country, but the politics of every organization they see, starting with their school and their church, but also any business organization, social club—any group of human beings they are involved with, or are interested in understanding. That will give them a big advantage over people who don’t know much of this and I always let my students know that.

We now can see the monumental character of the problem the Framers of our Constitution set out to solve, and the indispensable human need to solve it. They needed to constitute a national government that would be structured in such a way as to prevent any of the bad regimes from arising here, to ensure that Americans could continue to govern themselves, to engage in politics strictly speaking, to rule and to be ruled in order to secure their natural rights. They also needed to constitute a modern state, one big enough to defend them against the other modern and indeed imperial states that surrounded them, a state that nonetheless remained under the control of the sovereign people, who are out to defend their natural and civil rights. Having learned this your students will be equipped to see why American politics then and American politics now were, and are, so contentious. Americans then and now have argued about what kind of regime they should have, and what kind of state they should have. In foreign policy, they confronted the imperial monarchies of Europe; today we confront oligarchies in China and Russia and Iran which mean our regime, and our state, no good, and do not lack imperial ambitions.

Two of the most important institutional devices the Framers built into the American regime and state were the ones for this hour: representation, which James Madison considers the heart of the republican regime, and separation of powers, which is implicated in the controversy over delegation of powers.

First, representation. The American Founders considered a republic to be the regime best suited for the effective defense of our rights. But ‘republic’ is a very broad term. In ancient Rome, it referred to a mixed regime, one which in practice was usually dominated by the landed oligarchs or (to be more charitable) aristocrats in the Senate. Modern Venice as it existed in the Founders’ time was called a republic, but an ‘aristocratic republic.’ The founders were out to establish a democratic republic, a regime they were careful to distinguish from both aristocracy and democracy (which, in agreement with Aristotle, they judged a bad regime). Publius defines a republic as a regime in which (1) all governing powers derive directly or indirectly from “the great body of the people” and (2) administrative or executive work is done by persons holding their offices for terms limited by an election cycle or at least during good behavior—that is, so long as they are unimpeachable. If the people are to rule themselves, their representatives must be responsible to them.

Popular self-government had a bad reputation in Publius’ day, thanks to the tumultuous histories of what Publius calls the “petty republics” of ancient Greece and Italy. “Advocates of despotism,” he writes, have used these examples to criticize not only republican regimes but “the very principles of civil liberty” itself, calling liberty “inconsistent with the order of society.” Such persons deny that what the Declaration identifies as the natural rights to life and liberty are compatible; therefore, one of these rights, liberty, must in large measure be sacrificed for the sake of security. The English philosopher Thomas Hobbes considered only a large, centralized state—the “mighty Leviathan”—with a regime of absolute monarchy as consistent with the preservation of human life.

Publius thinks otherwise. In his words “the science of politics” has improved since the days of the ancient Greeks and Romans, in five ways. Two of these don’t concern us here, this morning: legislative checks and balances within a structure of bicameralism and judges holding office “during good behavior.” Another, separation of power, will be the next speaker’s topic, although I will touch on it when I get to talking about delegation of powers.

The other two are directly relevant to republicanism. One is the representation of the people by elective or appointed officials, not just in executive offices, as it was in antiquity, but in the legislature. In the American form of republicanism, the people’s representatives make the laws. The other feature of the new science of politics flows from that. Because in a representative government the people don’t need to gather en masse to legislate for themselves, as they did in the Athenian democracy, popular self-government can extend over a much bigger territory, inhabited by a much bigger population. In other words, you can have a modern state that is strong enough to defend itself against rival states with monarchic, tyrannical, or oligarchic regimes. Because it is so large, the American republic has the chance for better domestic politics, too; faction will have a harder time organizing themselves among such a large and diverse population, spread out over a large and diverse territory—the famous argument of the tenth Federalist.

The constitutional provision that further strengthens this extended republic is Article IV, section 4 of the Constitution stipulates that every state within the national state must have a republican regime; there should be no regime rivalries among the American states, as there are in other part of the world. And the federal character of the American state will enable Americans to participate in politics and government, learn how to be citizens, because there will be plenty of self-government to do not only on the national levels, but in states, counties, and towns.

Publius defines representation in terms of the second topic I’ve been asked to discuss, delegation. Representation means “the delegation of the power of the people to a small number of citizens elected by the rest.” Furthermore, as Montesquieu writes, “It is false that one who is delegated has as much power as those who delegate and that he no longer depends on them.” (Pensées No. 224). The people retain their sovereignty; they, not the government, are the rulers. There is no privileged class ‘born to rule’; everyone is born to rule, although not everyone will participate in the government. America is therefore not a ‘mixed regime’ but an unmixed republic. Because voting citizens will want to be represented by person who are smart and ready to defend their interests, representative government will, in Publius’ words, “refine and enlarge the public views” in a way seldom seen in the “petty republics” or small democracies of ancient times or, for that matter, anywhere else in modern times, as of 1787. Because America is so large and diverse, “the idea of an actual representation of all classes of the people by persons of each class is altogether visionary,” something that “will never happen under arrangement that leaves the votes of the people free”—that is, free to choose their best representatives.

The extensiveness of the republic along with this institutional structure or design feature, representation, each indispensable to the other, are what Publius identifies as the distinctive and indeed unique features of the American regime.

Notice that crucial point about delegation of power. In a true, unmixed, democratic republic delegation runs from the sovereign people to their representatives. It does not run from the states’ governments to the federal government or from the federal government to the states’ governments. Governments are not sovereign. “We the people” are. Only the way the Framers have devised can enable us to govern ourselves under a federal system and defend our lives and liberty. Nor does delegation run from one branch of the government to any other branch. Not from the legislature to the executive, the legislature to the judiciary, or in any other pathway between any of the three branches.

Before the Founders’ time, the English philosopher John Locke put the matter with characteristic vigor: “the legislative [branch] cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the commonwealth, which is by constituting the legislative [branch], and appointing in whose hands that shall be. And when the people have said we will submit to rule, and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; no can the people be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them.”

This was well understood and accepted throughout the nineteenth century and into the twentieth. In the 1825 case of Wayman v. Southard, Chief Justice John Marshall wrote, “the legislature makes, the executive executes, and the judiciary construes the law.” It is true he immediately adds, that “the maker of the law”—the legislature—may ‘commit something to the discretion of other department, and the precise boundary of this power is a subject of delicate and difficult inquiry,” but neither is that inquiry impossibly. That’s what they pay judges to do.

In this case, the question was: Do state legislature have the right to set rules and procedures for federal courts within their states—in this instance, the State of Kentucky? The question was then primarily a matter of delegation of powers under the system of federalism—that is, in framing the Judiciary Act of 1802, can Congress be said somehow to have delegated the power of regulating courts to the states? The answer, Marshall replies, is no. A court “is nothing without its process. To leave this dependent upon State legislation, would be to leave the administration of justice in the Federal Court at the mercy of the States.” Such a power “is wholly incompatible with the power of the Union in Congress assembled.” Indeed, the Constitution clearly states that “all the legislative power is vested exclusively in Congress,” and, as Baptist preachers like to say, ‘All is all that “all” can mean.’ The State assemblies do not constitute legislative bodies for the Union.

What is more, not only can Congress not delegate federal power to the states, it also cannot delegate legislative power to other branches of government. In Marshall’s words, Congress “cannot delegate legislative power to the courts, or to any other tribunals, powers which are strictly and exclusively legislative.” It can delegate powers which are not exclusively legislative, powers which all branches rightly possess. So, in this case, the federal court ordered its officer to take action against a debtor, deriving its authority from a federal law The officer can still “exercise his discretion” with regard to the procedures he follows in taking the action the court ordered, under Congressional law.

The Marshall Court’s distinction between strictly legislative, never-to-be-delegated powers enumerated in the Constitution and powers common to all branches of government, whereby they regulate their own proceedings and leave matters of action under specific circumstances to the discretion of those charged with taking those actions, prevailed in Supreme Court cases though the mid-1930s. Two of the most famous New Deal era cases were Panama Refining Company v. Ryan and A.L.A. Schechter Poultry Corporation v. United States. In the first case, a Texas oil company challenged the constitutionality of a section of the 1933 National Industrial Recovery Act, which authorized the President to prohibit the transportation of “hot oil”—that is, oil produced beyond quotas established by the state legislature for intrastate consumption which was then sold to other states or to foreign countries. The plaintiff contended that this was an unconstitutional delegation of power by Congress, the legislative branch, to the executive branch, whereby the Department of the Interior wrote the regulations and the President executed regulations set down by his own executive branch of government. In Schechter, the plaintiffs challenged the constitutionality of another section of the NIRA, which established “codes of competition” for industries, in this case a code governing the live poultry industry. Chief Justice Charles Evans Hughes wrote both opinions; in interest of time, I’ll summarize his argument in Panama Refining.

“Assuming for the present purpose,” Hughes wrote, “that the Congress has the power to interdict the transportation of that excess [of petroleum] in interstate and foreign countries, the question of whether that transportation shall be prohibited by law is obviously one of legislative policy.” The problem is that the disputed clause in the NIRA. “establishes no criterion to govern the President’s course”; the Act fails “to declare in what circumstances that transportation should be forbidden.” Nor does it require the President “to ascertain and proclaim the conditions prevailing in the industry which made the prohibition necessary.” This left matters “to the President without standard or rule, to be dealt with as he pleased.” Hughes cited Wayman v. Southard on the distinction between law and the mere “filling in the details” of executing the law; in the case at hand, Congress had not “sufficiently defined” the policy the law aims at, providing no “intelligible principle” of executive action. Were this clause allowed to stand, “instead of performing its lawmaking function, the Congress could at will, as to such subjects it chooses, transfer that function to the President or other offices or to an administrative body”—to what Marshall had called “another tribunal.”

Notice the phrase, “intelligible principle.” It will go on to have a checkered history. It comes from an earlier case, J.W. Hampton and Company v. United States, decided in 1928 with an opinion written by Chief Justice William Howard Taft. The plaintiff was a New York firm which imported barium oxide, a compound with numerous industrial uses. Under the Tariff Act of 1922, the President had issued a proclamation raising the rate on this product. The Court upheld the Act, ruling against the plaintiff. Taft held that the delegation of authority to the President was constitutional because Congress gave him “an intelligible principle to which the person or body authorized to fix such rates is directed to conform,” namely, that if the tariff duties fixed in the act “do not equalize the…difference in costs of production in the United State and the principal competing country,” the President shall adjust the rates accordingly. The U.S. Tariff Commission had the duty to find the facts the President would need to make that decision, a process that must include public hearings by the Commission. That is, Congress has specified in the law a means of adjusting the rates to changing circumstances, allowing a change in the details of the law by a criterion set by the law itself.

This, Taft contended, upholds the principle of Wayman v. Southard because the Constitution is violated in such instances only if Congress “gives up its legislative power and transfers it to the President, or to the judicial branch or if by law it attempts to invest itself or its members with either executive power or judicial power.” The Tariff Act did none of those things. “The Congress may not delegate its purely legislative power to a commission,” either, he added, although a commission may apply the law “to particular situations and [to] the investigation of facts.” In sum, “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.” In both this case and the two 1935 cases—the first affirming the constitutionality of a Congressional law, the others denying it—the “intelligible principle” required by the Court was a means of action specified in the law, not only a broad, general purpose.

This matters, because after Franklin Roosevelt’s landslide election to an unprecedented third term in 1936, followed by his failed attempt to ‘pack’ the Court with New Deal supporters of the administrative state a year later, the Court never again struck down a law delegating power to an administrative agency. In order to give some sort of Constitutional cover for this reversal of more than 100 years’ precedent, the Court began to redefine what an “intelligible principle” is, indeed counting broad, general purposes as constitutionally permitted bases for saying that no delegation was going on. [1] One scholar has listed half a dozen of these: the power to determine “excessive profits”; “unfair and inequitable” commodities rates; “just and reasonable” rates”; and the “public interest, convenience or necessity” respecting the regulation of broadcast licenses. Such broad grants of authority from Congress effectively permit administrative lawmaking—an unconstitutional delegation of power. In still another step, agencies established administrative law courts which adjudicate cases under the laws the agency executives make and execute—the combination of the legislative, executive, and judicial powers in one set of hands, which is what Thomas Jefferson called the definition of tyranny and what (among other things) the Declaration of Independence condemns George III for having done.

Whatever the motives of the Supreme Court justices may have been in acquiescing to the delegation of such substantial powers to what’s now called ‘the administrative state,’ it’s important to understand the rationale behind this delegation as it was advocated by its proponents. For that, the best writer I know is James M. Landis, whose book, The Administrative Process, was published three years after the Panama Refining and Schechter decisions, and only a year after a commission appointed by President Roosevelt condemned independent administrative agencies in a report calling for the reorganization of the executive branch in order to give the President firmer control over the now-sprawling federal bureaucracy. The head of that commission, Louis Brownlow—himself an ardent Progressive —denounced the independent agencies as “miniature independent governments” that “do violence to the basic theory of the American Constitution that there should be three branches in Government and only three.” The report continued, “The Congress has found no effective way of supervising” these agencies, “they cannot be controlled by the President, and they are answerable to the courts only in respect to the legality of their decisions.” They do indeed combine legislative, executive, and judicial powers, leaving the President “with responsibility” for their decisions in the eyes of the public but inadequate power over them and hence no little real responsibility at all. “Power without responsibility has no place in a government based on the theory of democratic control, for responsibility is the people’s only weapon their only insurance against the abuse of power.” Moreover, when “the same men are obliged to serve both as prosecutors and as judges,” this “undermines judicial fairness” and “public confidence in that fairness.” The Commission called for a consolidation of administrative power under the President—music to FDR’s ears.

Landis entered the lists against both the Hughes Court and the Brownlee Commission—in effect against President Roosevelt and his adversaries on the judicial bench. In this battle, the administrative state found a sincere and enthusiastic champion. Years later, in a 1961 speech before the American Bar Association, Landis said: “For me, to have watched the growth of the administrative process has been perhaps the most rewarding chapter of my life.” There was something about modern bureaucracy that stirred the man’s blood. It wasn’t so much the structure of bureaucracy but the administrative process, and his role in originating it in America, which galvanized him. Landis understands administration not as a mere instrument of government or of regulation but as a dynamic force, the ‘cutting edge of History.’ In his own way, James M. Landis too could claim to be an American Founder. 

In Landis’s account, modern administration originated neither in American nor in English law but in the French droit administratif. The administrative process took hold in the United States due to the “inadequacy of a simple tripartite form of government to deal with modern problems.” In the U.S. the constitutional separation of the three governmental powers has been “elevated to the constitutional level and embroidered by pontifical phrases,” while criticism of the administrative process “abounds with fulmination.” But with the rise of powerful and complex modern industrial corporations simultaneously with the democratic sentiment of humanitarianism, the people have increasingly demanded that their government protect and care for them. Since in organizing themselves the corporations do not separate their powers but concentrate them in a board of directors, government needs to organize itself to imitate these rivals for power, continuing to exercise its policing powers but adding to them the powers of planning and publicity—taken together, “management.”

To the critics’ complaint that this managerial revolution entails the combination of legislative, executive, and judicial authority, Landis cheerfully agrees, saying that that’s a good thing, too. To those who charge that there are too many administrative agencies, on the contrary, “efficiency in the processes of governmental regulation is best served by the creation of more rather than less [sic] agencies.” Although he doesn’t use the term, what is needed is a new form of aristocracy, one based not on military valor or political prudence, much less on gentility and bloodlines, but on empirical knowledge, on expertise. The administrative process will be conducted by what he calls “a select, compact group of individuals”—later advocates would call it a ‘meritocracy’— trained in the social sciences who possess sufficient technical knowledge of political, social, and economic forces to manage the new, corporatist economy.

Judges lack that expertise. Their so-called “legal principles” have no reality outside of the “economic and social opinions” of the time in which those principles are formulated. All ideas are “historically molded,” having nothing to do with such fictions as the law of Nature and of Nature’s God. Judges “suffer from that finely spun logomachy”—battles of mere words—heard in courtrooms. They fail to get their minds around the facts discovered by empirical social science, the real drivers of ‘History.’ As for legislators who operate “by the democratic method,” the elected representatives Madison praised, their work is sloppy and compromised. They should indeed delegate their powers, in “the very broadest terms,” to the experts, who can transform their vaporings into precise, coherent policy. Administrators can do this because “the comparative quiet of the conference room,” relieved of “the turmoil of a legislative chamber or committee room,” “gives some assurance against the entry of impertinent considerations” and relieves the ruling process “from the play of political and economic pressures” even as it guides that process by knowledge of the much larger political, social, and economic forces which push ‘History’ forward.

Landis recommends that the legislative branch take on a new role, one consisting more of reviewing administrative actions rather than of making laws. As for the judiciary, it will have a much diminished role, one that allows no more judicial review, inasmuch as the judges’ claim to expertise, while true, is a claim to the wrong kind of expertise, expertise in the manipulation of words and of abstract ideas, not expertise in empirical realities.

Landis says little about rights, whether natural or civil. He begins, cautiously, to reveal why this is so in giving a short history of administrative rule in the United States. It began not with the battle against corporations, which initially would have been a lost cause, but with immigration control. “The exclusion and expulsion of aliens” produced “the pressure of innumerable cases,” a pressure “too great for the ordinary machinery of government,” especially for the elephantine ‘due process’ of the courts. Since aliens had no rights enforceable in U.S. courts, anyway, and indeed no legal right to enter the country, there was no need for any formal court proceedings in dealing with them. “The fusion of prosecution and adjudication in a single administrative agency” made sense. That is where the administrative process cut its teeth, in America.

Thus incised, the administrative process then appeared in the newly formed Federal Trade Commission, established in 1914 to enforce the Clayton Act, one of the major antitrust laws and a key element of the Progressive movement’s agenda under President Wilson. Supreme Court Justice Louis Brandeis remarked at the time that the FTC Act establishes an administrative tribunal, using Marshall’s term for one of the several bodies Congress isn’t entitled to delegate power to. But for his part, Landis elegantly ignores the fact that this now meant citizens not aliens were now being ruled administratively. Indeed, as far as he is concerned, “political dogmas” and “righteous abstractions” such as natural and civil rights have no fit place in law. Only the administrative process can, as he puts it, lift the rule of law “to new heights, where the great judge [i.e., the administrative process itself], like the conductor of a many-tongued symphony, from which would otherwise be discord, makes know the voice of many instruments, the vision that has been given him of man’s destiny upon this earth.” The concrete, empirical, scientific, historical process of administration stands, “in essence, [as] our generation’s answer to the inadequacy of the judicial and legislative process,” which liberated our great-grandfathers but now shackles us. By supplementing these now incompetent older processes undertaken by now incompetent judges, legislators, and executives, who are now rightly and progressively delegating their powers to the administrators whose expertise gives them the authority to push society forward on ‘History’s’ cutting edge, Americans redeem the true content of separation and balance of governmental power, realizing the promised harmony of American life. [2]

Almost exactly a century earlier, Alexis de Tocqueville took a different view. Considering the prospect of exactly the combination of social equality or “democracy” and centralized administrative states that Landis would come to champion, he warned his readers of what Landis would name the administrative process:

“The kind of oppression with which democratic peoples are threatened will resemble nothing that has preceded it in the world; our contemporaries would not find its image in their memories”—memories that still included the French Revolution and the Napoleonic Empire. “The thing is new, therefore I must try to define it, since I cannot name it. 

“I see an innumerable crowd of like and equal men who revolve on themselves without repose, procuring the small and vulgar pleasures with which they fill their souls. Each of them withdrawn and apart, is like a stranger to the destiny of all the others: his children and his particular friends form the whole of the human species for him; as for dwelling with his fellow citizens he is beside them, but he does not see them; he touches them and does not feel them; he exists only in himself and for himself alone, and if a family still remains for him, one can at least say that he no longer has a native country.

“Above these an immense tutelary power is elevated, which alone takes charge of assuring their enjoyments and watching over their fate. It is absolute, detailed, far-seeing, and mild. It would resemble paternal power if, like that, it had for its object to prepare men for manhood; but on the contrary, it seeks only to keep them irrevocably fixed in childhood; it likes citizens to enjoy themselves provided that they think only of enjoying themselves. It willingly works for their happiness; but it wants to be the unique agent and sole arbiter of that; it provides for their security, foresees and secures their needs, facilitates their pleasures, conducts their principal affairs, directs their industry, regulates their estates, divides their inheritances; can it not take away from them entirely the trouble of thinking and the pain of living?

“So it is that every day it renders the employment of free will less useful and more rare; it confines the action of the will in a smaller space and little by little steals the very use of it from each citizens. Equality has prepared men for all these things: it has disposed men to tolerate them and often even to regard them as a benefit.

“Thus, by taking each individual by turns by its powerful hands and kneading him as it likes, the sovereign extends its arms over society as a whole; it covers its surface with a network of small, complicated, painstaking, uniform rules through which the most original minds and the most vigorous souls cannot clear a way to surpass the crowd; it does not break wills, but it softens them, bends them and directs them; it rarely forces one to act, but it constantly opposes itself to one’s acting; it does not destroy, it prevents things from being born; it does not tyrannize, it hinders, compromises, enervates, extinguishes, dazes, and finally reduces each nation to being nothing more than a herd of timid and industrious animals of which the government is the shepherd.

“I have always believed that this sort of regulated, mild, and peaceful servitude whose picture I have just painted, could be combined better than one imagines with some of the external forms of freedom and that it would not be impossible for it to be established in the very shadow of the sovereignty of the people.”

To bring the themes of representation and delegation of powers together, you see how that delegating powers from elected and appointed officials to unelected and tenured ones drains real authority from the people, making civic engagement seem useless and thereby dissolving the spirit of self-government which enables citizens to defend the unalienable rights set down the Declaration of Independence. The “administrative process” thus becomes an undeclared testament to dependency.

And that is why representation and the delegation of power matter not only to lawyers and judges and political science professors, but to your students. That is how the design, the structure, of the ruling offices in the American regime affect the kind of representatives we elect, whether we are governed by elected representatives and persons appointed by them, what our way of life will be, and what purposes we aim at when we aim at governing ourselves. [2]

 

Notes

1. The first such case appears to be Lichter v. United States, decided in 1948 on the grounds that the relevant delegation provided the “intelligible principle” of “excessive profits.” However, this was an unusual case because it ruled on the constitutionality of the 1942 Renegotiation Act, a wartime measure intended to prevent price gouging by privately-owned contractors in the military defense industry. Writing for the majority, Justice Burton emphasized that the alternative was a government takeover of those industries along the lines of the “totalitarian model” the United States was resisting in the war. Further, the national emergency justified a much broader than usual use of state power, under Congress’s war powers. That being so, “It is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of congressional policy to infinitely variable conditions constitute the essence of the program.” The subsequent question then became, does that need for flexibility and adaptation apply in peacetime? Subsequent Supreme Court rulings in effect have answered ‘yes.’
2. That Landis’s convictions have continued to prevail among many administrative officials may be seen in an October 2021 memo written by the chair of the Federal Trade Commission, Lina Khan. In her memo, Khan defines the FTC as a “body whose work shapes the distribution of power and opportunity across our economy.”
3. In 2019, some members of the Court indicated that the question of delegation of powers may be revisited. In Gundy v. United States, the plaintiff, a convicted sex offender, challenged his conviction for failing to register under the provisions of the Sex Offender Registration and Notification Act, which Congress enacted in 1994. The plaintiff had been convicted of a sex offense and had served his jail sentence before the Act went into effect, arguing that the Act gave too much regulatory discretion to the U.S. Attorney General respecting the registration of pre-Act offenders. In a 5-3 decision (the recently-appointed Justice Kavanaugh did not vote), the Court upheld the constitutionality of the Act. Writing for the majority, Justice Elena Kagan held that the SORNA satisfied the requirements of the “intelligible purpose” standard, namely, “to protect the public” against convicted sex offenders by “establishing a comprehensive national system for the registration” of such persons. “The Court has over and over upheld even very broad delegations” of power from Congress to the executive branch; ergo, “the delegation in SORNA easily passes muster. Justice Kagan went so far as to assert that “if SORNA’s delegation is unconstitutional, then most of the government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.” Writing for the minority, Justice James Gorsuch observed that “the Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens,” authorizing him to “‘prescribe the rules by which the duties and rights’ of citizens are determined a quintessentially legislative power.” Such administrative codes often prove mutable, depending on the policies of a given administration, and in any event vest legislative powers in the hands of unelected officials, by definition not responsible to the sovereign people. The purpose of separation of powers “is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation’s course on policy questions like those implicated by SORNA.” With respect to the registration of pre-Act offenders, no such consensus had been established, given Congress’s inability to specify a procedure for dealing with those offenders—a difficulty it evaded by passing on that piece of lawmaking to the Attorney General, who should be enforcing laws, not making them. In his opinion concurring with the majority, however, Justice Samuel Alito acknowledged that “since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards.” Since “I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years,” Alito affirmed the majority decision while inviting another more clear-cut case that would better enable the Court “to reconsider the approach we have taken for the past 84 years,” i.e., since the Panama Refining and Schechter cases.

Twelve Southerners: I’ll Take My Stand: The South and the Agrarian Tradition. Baton Rouge: Louisiana State University Press, 1983 [1930].

 

In addition to rulers, ruling offices, and purposes, political regimes entail a way of life. Writing in 1930, a few years before the New Deal cinched in a strongly centralized national government committed to addressing the grievances of urban factory workers, the Twelve Southerners, many of them colleagues at Vanderbilt University, issued what for several decades seemed the last gasp of agrarianism, which had found its first political expression in Thomas Jefferson’s Democratic Republican Party.  Most of the Southerners were literary figures, but they criticized the New Humanism of Irving Babbitt and Paul Elmer More as “too abstract,” too much a philosophic critique of Bacon and Rousseau, insufficiently rooted in a “way of life”—specifically, the Southern way of life, as distinguished from and opposed to the “American or prevailing way of life.” For all his hostility to modernity, Babbitt, an Ohio boy educated at Harvard and a professor of French literature, perhaps struck them as a bit too much of a Yankee, and a suspiciously cosmopolitan one, at that. “We cannot recover our native humanism by adopting some standard of taste that is critical enough to question the contemporary arts but not critical enough to question the social and economic life which is their ground.”

Hoping for “a national agrarian movement,” they set themselves against industrialism, “the decision of society to invest its economic resources in the applied sciences,” a decision founded on the illusion of human power over nature that leads to irreligion. “Mercenary and servile” industrial labor profits industrialists, who “would have the government set up an economic super-organization, which in turn would become the government.” By contrast, “the theory of agrarianism is that the culture of the soil is the best and most sensitive of vocations, and that therefore it should have the economic preference and enlist the maximum number of workers.” The South’s agrarian way of life found itself under threat in the South itself, as industrialism began to encroach upon the region under the tag, “The New South.” 

The poet and literary critic John Crowe Ransom wrote the lead article. At the time, he was teaching at Vanderbilt University; he later moved to Kenyon College in Gambier, Ohio in 1937, hired by college president Gordon Keith Chalmers, himself a prominent advocate of education in the humanities. [1] In opposition to “the progressive or American idea,” the “South is unique on this continent for having founded and defended a culture which was according to the European principles of culture; and the European principles had better look to the South if they are to be perpetuated in this country.” By European principles he means first and foremost the “intention to live materially along the inherited line of least resistance, in order to put the surplus of energy into the free life of the mind,” not into the life of commercial-industrial go-getting, “the strange discipline which individuals turn upon themselves, enticed by the blandishments of such fine words as Progressive, Liberal, and Forward-Looking.” Despite its European origins, the Southern way of life is deliberately and intensely provincial, rather like the aristocratic, or more precisely squirearchic civil societies of pre-modern Europe. Provincialism opposes “deracination in our Western life,” the mobile way of life seen in societies gripped by commerce and industry.

Ransom points to the scientistic theories of H. G. Wells as the sort of thing he would have the South resist. Wells proposes progress without “any finality or definition.” Thanks to that lacuna, “our vast industrial machine, with its laboratory enters of experimentation, and its far-flung organs of mass production, is like a Prussianized state which is organized strictly for war”—Ransom had served as an artilleryman in the First World War—and “can never consent to peace.” Progressives would resemble the earlier American pioneers, “except that they are pioneering on principle, or from force of habit, and without any recollection of what pioneering was for.” Purposeless progress lacks any criterion that tells progressives whether they are making progress. But “nature wears out a man before man can wear out nature; only a city man, a laboratory man, a man cloistered from the normal contacts with the soil, will deny that.” 

The other side of the ‘progressivist’ coin is service. That is, while men push ahead, chasing ‘progress,’ women conceive of themselves as service providers, simultaneously engaging in an Eve-like “seduction of laggard man into fresh struggles with nature,” so as to keep up with the Joneses.

Such is not the way of the true Southerner. From its beginning, “the South took life easy, which is itself a tolerably comprehensive art.” Slavery? Well, granted, but it was “more often than not, humane in practice.” When “the North and the South fought…the consequences were disastrous to both.” “No longer shackled by the weight of the conservative Southern tradition,” the North flung themselves into “industrialism, the latest form of pioneering and the worst,” producing “our present American civilization.” Impoverished by conquest, the South took on “a false pride” that wanted nothing to do with “pioneering projects of any sort,” thereby “doom[ing] her[self] to an increasing physical enfeeblement.” To pull the South out of its stupor, Ransom wants Southerners to ally with Western agrarians to effect a “counter-revolution,” with the Democratic Party as its political vehicle and Jeffersonian agrarianism as its economic engine. Had this occurred, Southerners would have headed off the New Deal. It was too late. The Great Depression hit two years later and the Roosevelt Administration took the opportunity to buy off the South with the Tennessee Valley Authority.

Poet and literary critic Donald Davidson addresses the question of the position of the arts in an industrial society. ‘Little or none’ is the short answer. Since traditional arts are products of “stable, religious, and agrarian” societies, they cannot survive in unstable, irreligious, and industrial ones. Artistry takes time, but leisure in industrial society isn’t leisurely; it is frenetic, devoted to exercise and fandom, or slothful (today’s shop-girl “reads the confession magazines and goes to the movies”). Such education as there is consists of training for industrial employment. Humanists need not apply. “The product of a humanistic education in an industrial age is most likely to be an exotic, unrelated creature—a disillusionist or a dilettante.” Public libraries (often built with funds donated by industrialists) discourage the patrons “from getting their own books and keeping them at home.” Neither schools nor homes provide the humanistic foundation the arts need.

Davidson attributes this rot to the simultaneous rise of industrialism and of democracy in the middle of the eighteenth century. The rise of the middle classes “through commercial prosperity” caused democratization; “scientific discovery, backed by eighteenth-century rationalism, prepared for the other.” Political (if not social) leveling and industrialism contributed to “the materialistic reorganization of society that in effect brought a spiritual disorganization,” which the Romantic movement merely reflected, as artists turned either “against or away from society.” And so we now see “more and more poems about the difficulty of writing poetry,” like T. S. Eliot’s “The Waste Land.” Others turn to satire and criticism, à la H. L. Mencken; still others decline into realism (Sinclair Lewis), which means becoming something like a historian. “Rarely if ever in America do we find a great artist slowly maturing his powers in full communion with a society of which he is an integral part.” Instead, we have “seclusionists like Emily Dickinson,” exiles like Henry James (“today France and England harbor veritable colonies of expatriates”), or poets of “vain assurance” like Walt Whitman, with his attempt “to adumbrate the glory of a democratic, muscular future that forever recedes in mists of retreating hope.” As for “New England idealism” or ‘Transcendentalism,” it “failed in the debacle of the Civil War that it egged on.” 

As Ransom looked to an alliance of the South with the West in economics and politics, Davidson looked to an alliance of artists with agrarianism. “Our megalopolitan agglomerations, which make great ado about art, are actually sterile on the creative side; they patronize art, they merchandise it, but they do not produce it.” As a result, artists move to New York but then either die on the severed vine or retreat “to Europe or some treasured local retreat.” Robert Frost, James Branch Cabell, Sherwood Anderson, and Willa Cather wisely have remained “provincialists,” standing for “decentralization in the arts.” Very well, that, but the artist needs to do more. “He must be a person first of all, even though for the time being he may become less of an artist. He must enter the common arena and become a citizen,” whether as a farmer, a Congressman, or something in-between. Davidson doesn’t propose that artists ‘become political’ in the sense of taking up an ideology and promoting it; he wants artists to take up positions of responsibility in the real world.

No hearkening to the old Southern way of life could avoid some sort of consideration of slavery. The historian Frank Lawrence Owsley provided the needed apologia. The North defeated the South in war, crushed and humiliated it in peace, and waged against it a war of “intellectual and spiritual conquest” animated by “the religion of an alien God.” That religion, however, was only a cover for “the irrepressible conflict” between industrialism and agrarianism, slavery being a “red herring”—admittedly “one element” of the agrarian system but “not an essential one,” “though the Southerners under attack assumed that it was.” What is more, the slaves deserved their status, inasmuch as they were “cannibals and barbarians.” Indeed, “slavery had been practically forced upon the country by England—over the protest of colonial assemblies.” Once slaves had been admitted, Southerners considered “the expedient of freeing the slaves,” only to reject that as “too dangerous to undertake.” Continued Yankee harassment provoked “a counter-blast of fierce resentment, denying all accusations.” 

Politically, plantation oligarchs didn’t rule the South; rural folk descended from the yeomanry of rural England did. Southerners took their political models from ancient Rome, their favorite being Cincinnatus. Although “Lincoln and Seward and the radical Republicans clothed the conflict later in robes of morality,” this was only “a shibboleth to win the uninformed and unthinking to the support of a sinister undertaking,” the dominance of Northern industrial interests over the virtuous Southern yeomanry, with control of the federal government as the instrument of this crime. In contrast, “the agrarian South asked practically nothing of the federal government in domestic legislation”—the Fugitive Slave Law notwithstanding. 

As for that “alien God,” Southerners initially “inclin[ed] to Jeffersonian liberalism of the deistic type.” Once challenged by New England descendants of Puritanism on the slavery issue, Southern ministers “searched the Scriptures by day and night and found written, in language which could not be misunderstood, a biblical sanction of slavery.” A “religious revival” ensued. Northern abolitionists, unwilling “to accept scriptural justification of slavery,” now began to “repudiate the Scriptures,” losing “confidence in orthodoxy and tend[ing] to become deistic as the South had been.” If the real cause of the conflict was economic, the passions of fear and resentment sparked something resembling a religious war in spirit.

The Imagist poet and Confederate soldier’s son John Gould Fletcher wrote on education. Up until 1865, public education in the United States aimed at “produc[ing] good men,” men ready to assume the duties of self-governing citizenship, but “today we are out to withdraw the command of men over themselves,” to fit them for obedience. “The Scotch-Irish were in fact the first to establish classical schools in the South, and their influence on subsequent education was very great.” Before the American Revolution, “compared to the uniformity of caste and observance which prevailed in New England,” the Southern schools “were on the whole much more tolerant, more free and easy, more humanistic, and more open to all classes of the population.” Southerners established many academies which provided “the essentials of a good secondary education” at a low price—a classical/humanistic education, neither sectarian and doctrinal nor scientific and technical. The price of Northern victory in the Civil War was the loss of the classical education, which taught that “the inferior, whether in life or in education, should exist only for the sake of the superior,” replacing that with an education putting the superior “at the disposal of the inferior”—liberal education twisted to vocational purposes and thereby becoming merely practical or technical.

Lyle H. Lanier, a professor of philosophy and psychology (and sometime advocate of ‘race science’), offers a serviceable critique of progressivism, evidently based on the writings of Eric Voegelin. “Modern industrialism has found the use of ‘progress,’ as a super-slogan, very efficient as a public anesthetic.” The notion originated in the Renaissance, with its concept of immanence, as distinguished from transcendence (shared by Biblical revelation and Platonic philosophy). Immanence reached its philosophic culmination in the system conceived by Hegel, “the first thinker to generate a complete philosophy of history.” Combined with the positivism which “may be considered a refinement of Bacon’s philosophy” of experimentalism, Hegelian historicism led to evolutionism. In social thought, evolutionism’s greatest contemporary exponent is John Dewey.

According to Dewey, democratic socialism can be realized “even though we should have to remake human nature to secure it”—a “process of very dubious prospect,” Lanier suspects. And even if it were possible, any collectivism founded upon industrialism will prove impersonal, not “face-to-face.” Genuine association exists “only in the agrarian community and in the villages and towns which are its adjuncts.” Such associations in turn rest on families, not communes. The “corporate industrial regime,” with its “economic and psychological communism,” arises more or less inevitably from the modern West’s direction of “the greater part of a nation’s energies” toward “an endless process of increasing the production and consumption of goods.” Dewey’s socialist adjustment to industrialism—under it, the workers will own the machines—will not do. “I have spent many months in a large tire factory operating a machine for which I could never form any emotional attachment.” 

Further, and more fundamentally, “it is not the machine, however, but the theory of the use of the machine to which I object.” The theory of industrialism, which assumes that the relief of man’s estate—an effort moreover presented as the inevitable outcome of ‘History,’ in which progress is deemed to be immanent—dehumanizes workers by making them into instruments of production, along with the machines they tend. But on the contrary, “the only intelligible meaning of progress implies social institutions for producing psychological effects just the reverse of those so outstanding in our Machine Age.” We should “renounce the capitalistic industrial program,” along with the socialist industrialism that rises in opposition to it. We should also renounce “the false glamour of cities,” under whose machine-generated light capitalists and socialists alike bask; the impersonal way of life in cities can never satisfy human souls, which require personal the relationships of love and hate, friendship and enmity, to be themselves.

The literary critic Allen Tate offers “Some Remarks on the Southern Religion.” He shares Lanier’s rejection of historicism: “The Long View [of history] is…the cosmopolitan destroyer of Tradition,” offering “no reason to prefer Christ to Adonis.” Historicism is the most recent instance of Western rationalism, but religion, the animating spirit of any tradition, isn’t a matter of reasoning, “is not properly a discussion of anything; so any discussion of religion is a piece of violence, a betrayal of the religious essence undertaken for its own good, or for the good of those who live by it.” Tate objects to the Western (Catholic and Protestant) introduction of reason into religion in the form of theology. “The Eastern Church never had to do this, nor did it ever have to construct a plausible rationality round the supernatural to make it acceptable; it has never had a philosophy, nor a Dogma in our sense; it never needed one.” [2]

This being so, “where can an American take hold of Tradition?” At first glance, the South offers an unpromising prospect. The old South “was a feudal society without a feudal religion,” inasmuch as Jamestown was “a capitalistic enterprise,” not a religious venture, like Puritan Plymouth, Massachusetts. As part of the migration of Europeans to the new content, Southerners partook of European notions and conditions. These, “since the sixteenth century, have made it impossible for any community of European origin to remain spiritually isolated and to develop its genius, unless that genius is in harmony with the religious and economic drift of the civilization at large,” the drift denoted by the word ‘modernity.’ Thus, having begun in capitalism, the “political atmosphere,” the way of life and the ethos of the South, “did not realize its genius in time, but continued to defend itself on the political terms of the North”—the terms of industrialism and democracy, not agrarianism and feudalism. The South contradicted itself, allowing “its powerful rival gain the ascendancy.” Crucial to this failure was its attempt “to encompass its destiny within the terms of Protestantism, in origin, a non-agrarian and trading religion, hardly a religion at all, but a result of secular ambition.” In sum, “they defended their society as a whole with the catchwords of eighteenth-century politics,” which is “why the South separated from the North too late, and lost its cause.”

In the years since the Civil War, without “a fitting religion,” the “social structure of the South began grievously to break down.” The aftermath of military defeat has exposed “the lack of a religion which would make her special secular system”—her feudalism, now seen in the system of segregation—an “inevitable and permanently valuable one.” 

The beginnings of such a religion may be seen in the sensibility of the not conspicuously religious Mr. Jefferson. “The heresy of New England is beautifully recorded in the correspondence of John Adams and Thomas Jefferson where the two sages discuss the possibility of morals. Jefferson calls his judgment ‘taste’—reliance on custom, breeding, ingrained moral decision. But Adams needs a ‘process of moral reasoning,’ which forces the individual to think out from abstract principle his role at a critical moment of action.” This shows “how deeply” New England “had broken with the past,” “how far” she “had gone from Europe.” What it really shows is how far Tate has gone from Jefferson’s greatest moral and political syllogism, the Declaration of Independence, a specimen of moral reasoning from “abstract principle” if ever there was one.

Tate may not much like the idea of natural right, however. “Aware of the treachery of nature,” Southerners “tended to like stories, very simple stories with a moral,” as “all agrarians” do. Unfortunately, this habit left them defenseless against those heretical Northern rationalists. “The South would not have been defeated had it possessed a sufficient faith in its own kind of God,” he bravely asserts. Who or what the Southern God would be, he does not say—one consistent with agrarianism and feudalism, to be sure, somehow European but not ‘Western.’ Some years later, Tate would find in Roman Catholicism such a God, a spiritual move unmade by most Southerners.

Back on less mystifying ground, the historian and political scientist Herman Clarence Nixon, proud son of Possum Trot, Alabama, concedes that “there is no point in a war with destiny or the census returns,” while nonetheless deploring “the inner and articulate spirit of industrialism” now invading the South like a second coming of General Sherman. He hopes to maintain a balance there between agriculture and manufacturing, and would indeed join with the New Dealers a few years later, helping to keep the South politically solid for the Democratic Party for a couple more generations. (He would later call this “the constructive acceptance of the inevitable.”) Here, he maintains that the Civil War “was not necessary for the fairly early termination of slavery” because “the so-called old South, with its recruited aristocracy, was working toward a balanced industry, a reformed agriculture, and a free school system for the yeoman, when the war upset the orderly process of evolution.” This claim is as irrefutable as it is unprovable but, be it as it may, today the South’s “historic agrarianism offers a check and a contrast to America’s rush from a continental frontierism to a world-penetrating industrialism under a maximum play of materialistic motive and a minimum restraint of traditional background.”

Sometime farmer, essayist, novelist, and biographer of Nathan Bedford Forrest, Andrew Lytle concurs with Nixon’s assessment of post-Civil War America. “Since 1865 an agrarian Union has been changed into an industrial empire bent on conquest of the world’s good and ports to sell them in,” a policy that yields warfare and has proven ruinous to life, liberty, and the pursuit of happiness. Industrialism “must” become, first, socialist, then communist, then ‘soviet’ or oligarchic. “This one-time Republic” would have done far better had it listened to the wisdom of John C. Calhoun, “a philosopher as well as a logician [who] could see beyond his times.” Unfortunately, Andrew Jackson’s “fight with Calhoun” over the character of the Union “so confused the agrarian states” of the South and the West “that they were unable to stand united before the irrepressible conflict” with the industrial North. 

This notwithstanding, the South will rise again because the North is doomed. “Industrialism is multiplication. Agrarianism is addition and subtraction. The one by attempting to reach infinity must become self-destructive; the other by fixing arbitrarily its limits upon nature will stand.” That is, the mass production of goods, built on the principle of two-times-two-times-two, with no limit, amounts to a logic of imperial conquest, which must ultimately fail because nature, entirely conquered, must end in the destruction of human nature. The arithmetic principle of two-plus-two, or of two-minus-two, brings a finite result, naturally sustainable. 

In the meantime, and in tandem with Ransom, Lytle proposes a policy for a united front for conservatives, consisting of the agrarian South and West along with agrarian communities that survive in the North. The policy consists first and foremost of rejecting “the articles the industrialists offer for sale.” “Throw out the radio and take down the fiddle from the wall.’ In your churches, “turn away from the liberal capons who fill the pulpits as preachers” and seek instead “a priesthood than may manifest the will and intelligence to renounce science and search out the Word in the authorities.” If you sustain yourself, growing your own food, shearing your own lambs, drawing water from your own well, you “can live in an industrial world without a great deal of cash,” escaping a substantial part of the taxation that feeds the federal government. 

Slavery being gone, what about the race question now? The distinguished novelist and literary Robert Penn Warren endorses Booker T. Washington’s preference for segregation: “Let the negro sit beneath his own vine and fig tree.” He too, after all, is a fellow agrarian, a man of village and cabin, one moreover “as little equipped to establish himself” after his emancipation “as he would have been to live again, with spear and breech-clout, in the Sudan or Bantu country.” “He did not know how to make a living, or, if he did, he did not know how to take thought for the morrow.” Reconstruction did little to improve him, and the political dimension of the education he received only served to corrupt him. He was “used as an instrument of oppression” by the Northern carpetbaggers, thereby “sadly mortgag[ing] his best immediate capital,” namely, “the confidence of the Southern white man with whom he had to live.” “The rehabilitation of the white man’s confidence for the negro is part of the Southern white man’s story since 1880.” In the meantime, Washington’s program of racial separatism appears preferable to premature integration, although Warren does contend that “it will be a happy day for the South when no court discriminates in its dealings between the negro and the white man.”  Some years later, after the Second World War, Warren concluded that negroes who sat under their own vines and fig trees unfortunately had plenty to make them afraid under the unkind auspices of ‘Jim Crow’ segregation. He reversed his position, becoming a prominent spokesman for civil rights.

Two stories follow—one a fiction, the other a barely disguised autobiographical sketch. Each aims at personalizing the agrarian doctrines advanced by the other contributors. The literary biographer John Donald Wade offers “The Life and Death of Cousin Lucius,” a character possibly modeled after Wade’s uncle, who spent his young manhood during Reconstruction. Lucius’s classical education, gentlemanliness, Christianity, and liberalism in the original sense of generosity, to say nothing of his life as a farmer, makes him the very model of a Southern Agrarian. Henry Blue Kline’s “William Remington,” born two generations later at the beginning of the twentieth century, confronts not so much Yankee intrusiveness but his own alienation. Whereas Lucius is firm and calm in his Southernness, young Mr. Remington finds that his “education could not have made him more unfit to live life on the terms he found prevailing about him if it had been carefully crafted with this end in view.” In college, “finding that he loved literature and the arts and philosophy, he passed over the courses of study which would have taught him how to earn a comfortable and morally painless living, only to turn instead to the useless ‘humanities.'” This proved early evidence of “a deeply rooted determination to live his life, in so far as he possessed free agency to control it, on terms dictated by his own critical intelligence and by nothing else.”

“In a word, he was due for a hard bump.”

What to do after graduation. He felt “curiously unfit” for a career as “a teacher-philosopher,” in imitation of “one of his gods,” Aristotle. What about being a philosopher, simply? Ah, but “William was not quite so naïve as not to know that modern Socrateses are given the hemlock cup not at the end but at the beginning of their career.” And although Jesus was “the most ethical man the world had ever known,” William knew that “nowhere in the world” that he had seen “would any man be suffered to practice Jesus’s ethics,” and, consistent with his estimation of Socrates, he had no taste for martyrdom. As for Shakespeare, well, William understood he was no Shakespeare. 

He could only fall back on himself, in “his chosen place among his chosen people.” There he would find fellow resisters. “With a central paternalistic government tending to reduce every metropolis and hamlet of the nation to a cultural common denominator, with cheap and rapid transportation and highly organized communications tending to extend the metropolitan areas and their indigenous ideals over most of the forty-eight states, with imperialistic industrial exploiters abroad in the land, any ideal of provincialism can be kept in force only by fighting for it.” As for Kline, he spent most of his career as a government worker, briefly as a journalist in St. Louis.

The playwright and theater critic Stark Young contributed the final essay, a defense of aristocracy. A century earlier, Tocqueville had seen this inclination in the Southern planters. He hoped that his fellow European aristocrats would learn to guide democracy, supplement its inexorable energies with touches of moderation and the prudence that comes from long experience in politics. He had less hope for the Southerners. Young might reply that it is too late for aristocratic guidance, in Europe or America. Aristocracy nonetheless has its charms, the South its possibilities. First of all, however, one must scour all traces of democracy from the Southerner’s mind. “There will never again be distinction in the South until—somewhat contrary to the doctrine of popular and profitable democracy—it is generally clear that no man worth anything is possessed by the people, or sees the world under a smear of the people’s wills and beliefs.” To this end, “education of the university sort, not professional or technical, is suited to a small number,” individuals not weakened by “the poison of the success idea.” Moral indignation also should be avoided. Rather in the spirit of Jamestown, “I had…the pleasure once of saying to the dean of a famous old New England college, upon his complaining of the lapses of the students on some matter about which he preached continually, that he should try giving some reason besides the moral wrong of it.”

In the South, “the aristocratic implied…a certain long responsibility for others; a habit of domination; a certain arbitrariness; certain ideas of personal honor, with varying degrees of ethics, amour propre, and the fantastic.” Rule by such persons ranks above “a society of bankers and bankers’ clerks, department-store communities, manufacturers and their henchmen and their semi-slaves, and miserable little middle-class cities, frightened of one’s position in the country club, snatching at the daily paper to see if one is all right.” The man formed by the commercial-industrial way of life “does not care to know anything, but merely to know about it. He is less concerned with the truth than with what people will think.” That thought might readily be summarized in that “sickening epithet,” ‘progressive.’

Change, yes, because “so long as we are alive, we are not the same.” “Yet [we] remain ourselves.” Recalling what he’s learned from Aristotle, although the South, being alive, is changing and must change, “for no thing can there be any completeness that is outside its own nature,” and were this not so, “all nature by now would have dissolved in chaos and folly, nothing in it, neither its own self nor any other.” Thanks to some mercy in the air, Young didn’t live to see ‘multiculturalism.’

Often left for dead, the corpus of Twelve-Southerner thought survives, its complacency on racial matters surgically removed, in such thinkers as Rod Dreher and others, who often derive their primary inspiration not from the Southerners but from Russell Kirk. Latter-day agrarians no longer dream of a grand political coalition, and most assuredly not of any alliance with the Democratic Party, long severed from the ‘Solid South.’ It has adopted what might be described as an enclave strategy, one awaiting the collapse of modernity and its science. 

 

Notes

1. Ransom died in 1974. I attended his last public poetry reading, a couple of years earlier; the influence of his approach to literary interpretation, called “the New Criticism” when he launched it in the early 1940s, focusing on careful reading of literary texts as texts, with minimal attention to historical context, remained influential there. The New Criticism served as a counterweight to historicist, often inclining toward Marxist or neo-Marxist, methods of interpretation, which (then as now) tended to reduce literary works to expressions of their ‘time’—specifically, the social and economic conditions of the period in which they were written.
2. Where Tate gets this, I cannot say. Orthodox Christianity has a long line of distinguished theologians. Speaking very generally, one might say that Eastern theologians tap into neo-Platonic philosophy, while Western theologians in the Catholic tradition have preferred Aristotle.

Richard Mack: The County Sheriff: America’s Last Hope. Self-published, 2009.

Richard Mack: Are You a David? America’s Last Hope, Volume II. Self-published, 2014.

Frederic Bastiat: The Law. Dean Russell translation. Irvington-on Hudson: The Foundation for Economic Education, 1997 [1850].

 

Given the often overbearing actions of America’s administrative state, citizens seek ways to resist. Mr. Mack, formerly sheriff of Graham County, Arizona, hopes that he has found one in the office of county sheriff. Consonant with his esteem for rugged individualism, he published his books himself. In receiving my copies, I was surprised to find that the distributor had kindly added a copy of Frederic Bastiat’s The Law, and while any free-enterprise-oriented economist would rightly insist that there’s no such thing as a free book, I am grateful that some residue of my payment enabled him to be so generous. I interpreted the gesture as a hint that the Bastiat tract, long a staple among libertarians, provides the theoretical framework for Sheriff Mack’s modest proposals. 

Mack sees that the regime of the American founders and the principles upon it rested has been partly replaced by a new regime, based upon such Marxian principles as “forced equality through governmental redistribution of wealth” and “the removal of religious beliefs and expressions from our public institutions.” What he adds to a defense of American constitutionalism and a critique of the Left is the claim that county sheriffs can legally resist the encroachments of the centralized, administrative state. His argument was first formulated by William Potter Gale, who founded the Posse Comitatus movement in the 1980s; Gale claimed, among other things, that citizen posses are entitled to hang public officials who, in the judgment of the posses, have violated the United States Constitution. [1] Mack offers a more sober agenda.

“The County Sheriff is our nation’s last line of defense, for the preservation and return to fundamental and individual liberty.” He begins with an account of his own rather impressive act of resistance. In his initial work as a police officer in Provo, Utah, he had followed the program of the city department, which demanded strict enforcement of local ordinances, generating revenues from fines, in exchange for more manpower and equipment for the police department. But he soon reversed course.

After reading the United States Constitution, which he had been sworn to uphold, he “gain[ed] a complete disdain for abusive government.” Moving to Arizona in 1988, he was elected Graham County sheriff in 1990, re-elected in 1992 and 1994. In those years Congress and the Clinton administration enacted the Brady Act, named for President Reagan’s aide, James Brady, who was seriously wounded by a would-be assassin wielding a handgun. The Brady Act required a five-day waiting period for purchase of handguns, during which time the chief law enforcement officer in a county or municipality would do a background check on the would-be purchaser. “This law literally forced each sheriff to become a pawn for the Federal Government and to do their bidding to promote gun control within our jurisdictions”—providing no funds for its enforcement. “Here’s the U.S. Congress making an unconstitutional gun control law, requiring a county official to enforce it and pay for it, and then threatening to arrest him if he refuses! What a government!” In 1997, Mack won his case (Mack v. U.S. 856 F Supp. 1372). While denying Mack’s claim that the law violated the Thirteenth Amendment’s prohibition of involuntary servitude (noting that, unlike a slave, Mack could evade compliance by leaving his job), the Court ruled that Mack was being “forced to choose between violating his oath or violating the Act,” which was a violation of the fifth and tenth amendments. The law’s requirement that sheriffs make a “reasonable effort” to enforce the law was too vague, and therefore in violation of the due process clause of the Fifth Amendment. And while the distribution and sale of firearms across state lines undoubtedly can be governed by federal law under the Tenth Amendment commerce clause, the federal government may not regulate interstate commerce in the way the Act did. Laws for that purpose must apply to states generally and not be specifically directed at a particular group—in this case, chief law enforcement officers. And while it was true, as the United States attorneys argued, that the Act didn’t require states to do anything to enforce its provisions, it did require sheriffs to do so, and Mack was within his rights to refuse.

Mack exaggerates when he claims that states are not subject to federal jurisdiction. He quotes Justice Antonin Scalia, who reaffirmed that “the Federal Government may not compel the states to enact or enforce a federal regulatory program,” but that is very far from saying that states are free of federal law. Federal officials are fully empowered to enact and to enforce federal laws within the states; that was one of the principal differences between the United State Constitution and the Articles of Confederation. The states have the right not to help them do so, but not the right to nullify federal law or to interfere with its enforcement. Neither Scalia nor any of the other Supreme Court justices made an argument for nullification. 

Therefore, when James Madison wrote that “We can safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority,” Sheriff Mack should less confident than he is, when he avers, “I am more than certain President Madison and his fellow framers would not mind one iota, if other town and county officials” joined their states in erecting such barriers, or did so unilaterally without their states’ approval. When Madison writes, “The local or municipal authorities form distinct and independent portions of [the people’s] supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them within its own sphere,” he means just that: there are indeed federal and state/local “spheres” of government, but they do not mean that a state or a county may constitutionally bar the federal government from passing legislation that ‘reaches into’ the territories of states and counties—only that federal officials may do so only in accordance with the powers granted by the people to the federal government, powers enumerated in the Constitution. Mack claims that “the original intention of our Founders [was] to maintain the federal ‘sphere’ as small and impotent,” he is talking nonsense, unless he means the Articles of Confederation government, not the United States Constitution—that is, the one Sheriff Mach swore to uphold.

None of this precludes the right to revolution, which the Constitution effectively ‘reserves’ to citizens by guaranteeing the right of the people to bear arms. As Mack exclaims, “Who did Paul Revere call to arms? None other than the citizens volunteers, the militia, who kept their ‘assault rifles’ in their closets just in case they were ever needed in defense of liberty. This is the very reason the Founders established the Second Amendment, so that the people or the ‘militia’ would always possess arms in defense of this nation against tyrannical government!” This right to revolution is indeed the final defense against “cruel or stupid laws,” the enforcement of which “is defined by the blind enforcement of stupid laws…. We are not puppets for the courts or legislatures!”

Mack hopes “to keep this revolution a peaceful one,” however. “There is a man who can stop the abuse, end the tyranny, and restore the Constitution, once again, as the supreme law of the land. Yes, it is you, SHERIFF!” Mack traces the office of sheriff to eleventh-century England, where the “shire reeve” was appointed by the sovereign monarch, defender of the realm. In America, a county sheriff is elected by the sovereign people, and has “the power to call out the ‘militia’ to support his efforts to keep the peace in his county.” The only other officials empowered to do so are state governors and the president of the United States, although Mack is careful not explicitly to name the latter. Since “the Constitution is no longer the compass that guides our country,” sheriffs must step up to interpose what he takes to be their constitutional authority against federal government encroachments. He cites the example of the Nye County, Nevada sheriff who “informed federal agents who came in to confiscate cattle from a local rancher, Wayne Hague, that if they tried to take the cows that he would arrest them. The cattle stayed right where they were.”

More ambitiously, Mack claims that county sheriffs could block the “Gestapo of America”—the agents of the Internal Revenue Service—from collecting income taxes. “The IRS should never have been in existence in the first place” because “there should be no tax on incomes,” as “the 16th amendment, which supposedly authorized congress to do so, was never ratified by the States.” Here he tacitly draws from the argument advanced by William J. Benson and Martin J. Beckman in their 1985 book, The Law That Never Was: The Fraud of the 16th Amendment and Personal Income Tax. Benson and Beckman argue that no state ratification conventions were called, and that the text of the amendment ratified by the state legislatures contained variants in capitalization, spelling, and punctuations. It should be almost needless to say that this argument has been rightly dismissed as trivial when advanced in federal courts. 

In his peroration at the end of The County Sheriff, Mack asks “What would it really hurt if we actually tried this? What damage would it cause if all sheriffs and police literally followed the Constitution and refused to have anything to do with its violation? I only see one result; our officer and protectors and the people get their freedom back.” If, however, as seems likely, what Sheriff Mack intends to do is to reconstitute the Articles of Confederation under cover of constitutionalism, it could do substantial damage to rights local officials chose not to defend, and to the constitutional union that has protected Americans from foreign invasion since 1814.

In the second volume of the work—heroically titled, Are You a David?—Mack elaborates and refines his argument. Distancing himself from the likes of Gale and the white supremacist militias, he assures us that “this book and its author will never advocate violence of any kind.” [1]  He goes so far as to invoke the Reverend Dr. Martin Luther King, who “stated frequently that we have a moral responsibility to obey just laws. However, we likewise have a duty and moral responsibility to disobey unjust laws.” Very true, except that Dr. King’s doctrine of civil disobedience included a willingness to accept unjust punishment for violating unjust laws. This is precisely what Sheriff Mack prefers to avoid.

In so hoping, he again relies on the United States Constitution. He understands the purpose of American government to secure life, liberty, and the pursuit of happiness, very much including property ownership. The purpose of the Constitution is to establish and to preserve a governmental structure that contains parameters to protect individual rights—strict limitations on government as it operates to fulfill its purpose. The purpose of the Bill of Rights is to list certain innate and immutable rights that the government may not infringe. On the latter point, it would be more accurate to say that the Bill of Rights lists certain civil rights that the Framers take to follow from natural rights; for example, by human beings have the right to defend their lives, liberty, and property, and the civil rights to bear arms and to enjoy a speedy and public trial may well be said to follow from that. 

It does not necessarily follow from natural right or from the Constitution that states have the constitutional right to nullify federal regulations whenever a state or group of states deems those regulations unconstitutional. Although Mack deems it “irrefutable” that “prescribed constitutional law enforcement assignments” are limited to treason, counterfeiting, piracies and felonies committed on the high seas, offenses against the Law of Nations, and invasion, he overlooks the constitutional power to lay and collect taxes, duties, imposts, and excises, to regulate interstate commerce, and to guarantee a republican form of government to every state.

This is not to say that Mack has some sensible things to say about constitutionally dubious bureaucratic overreach. He rightly observes that many Americans shy away from resisting encroachments for fear of losing federal grant monies or out of sheer complacency. The practice of the Environmental Protection Agency, which “now issues fines to citizens without due process” and the move toward government-mandated universal healthcare surely number among unconstitutional abuses of power, inasmuch as they obviously exceed the powers enumerated in the Constitution. It would be hard to gainsay the sheriff as he writes that “when the government controls the land, the jobs, the air, all waterways, industries, pensions, health care, education, and the re-distribution of wealth, the conclusion is inescapable; it’s communism!” And he is correct in saying that the school of constitutional interpretation that calls for an “elastic” or “living” Constitution has nothing to do with the thought of the Framers. Finally, he makes good sense in remarking, “the Constitution will never protect you. It will not stop tyranny or corruption or the criminality of government agents. But YOU can! The Constitution can only protect us IF we have someone willing to enforce it!” 

Very well then, what specifically can a county sheriff do? In 2011, Sheriff Mack formed the Constitutional Sheriffs and Peace Officers Association. He devotes a chapter to reprinting its resolution announcing that its members will neither allow nor tolerate a number of government practices, including registration of personal firearms, confiscation of firearms, audits or searches “of a citizen’s personal affairs,” property inspections, detainment or search of citizens, and “arrests with continued incarcerations” without probable cause, due process, and “constitutionally compliant warrants.” The resolution also rejects “domestic utilization of our nation’s military or federal agencies operating under power granted under the laws of war against American citizens,” a stance that may or may not cast a shadow on the constitutionally stipulated Congressional power to provide for calling forth the militia to execute the laws of the Union and to suppress insurrections. As always, such brave pronouncements rest on solid grounds insofar as they amount to a refusal to do the federal government’s work for it, but tend to step outside the limits of constitutional law insofar as they aim at interfering with the enforcement of federal law, when constitutional. As long as the “Constitutional Sheriffs” understand that they are proposing extra-constitutional actions, they will exhibit a realistic sense of what they are doing. The fact that their actions are extra-constitutional is precisely what Sheriff Mack denies.

The gift of Frederic Bastiat’s The Law provides an opportunity to wonder if the underlying theory of the Constitutional Sheriff movement lies neither in the American founding nor in white-supremacy ‘race science’ but in libertarianism. Bastiat’s esteem for law puts him, and his form of libertarianism, at odds with anarcho-capitalism à la Murray Rothbard, with whom constitutional sheriffs could not treat, inasmuch as they depend upon tax revenues from the sovereign people. [2] 

Bastiat asserts that the law and the police power of the modern state have been “perverted,” having become weapons “of every kind of greed.” Although life in its physical, intellectual, and moral dimension is a gift from God, He “has entrusted us with the responsibility of preserving, developing, and perfecting it.” Laws exist because life, liberty, and property need to be secured; that is the right function of law, properly “the collective organization of the individual right [or ‘natural right’] to lawful defense.” “If every person has the right to defend—even by force—his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly.” Such a “collective right” stems from “individual right.” There is no other purpose for a legal code. Conversely, under this definition of law, “the common force…cannot lawfully be used to destroy the person liberty, or property of individuals or groups.” The common force may “do only what the individual forces have a natural and lawful right to do.” 

Bastiat brushes off the question of regimes, of “political form.” Any form is just, so long as the stated criteria are met. Given the instability of the regimes in France between the 1780s and Bastiat’s lifetime, it makes sense for him to downplay the regime question, protesting that “no one would have any argument with government, provided that his person was respected, his labor was free, and the fruits of his labor were protected against all unjust attack.” By “argument” he likely means “rightful argument,” as there is seldom any shortage of souls unsatisfied with mere guarantees of life, liberty, and property.

And indeed, “the law has been used to destroy its own objective, “plac[ing] the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others,” “convert[ing] plunder into a right, in order to protect plunder,” “lawful defense into a crime, in order to punish lawful defense”—crimes committed by “stupid greed” and “false philanthropy.” Such misrule often marches behind the flag of ‘progress,’ but “if everyone enjoyed the unrestricted use of his faculties and the free disposition of the fruits of his labor, social progress would be ceaseless, uninterrupted, and unfailing.” 

Unfortunately, too many people “wish to live and prosper at the expense of others”—a “fatal desire [which] has its origin in the very nature of man,” in “that primitive, universal, and insuppressible instinct that impels him to satisfy his desires with least possible pain.” To live and to “satisfy his wants,” someone must work. But better you than me. “Since man is naturally inclined to avoid pain—and since labor is painful in itself—it follows that men will resort to plunder whenever plunder is easier than work.” Plunder stops “when it becomes more painful and more dangerous than labor,” and it is the right function of law to arrange that. Unfortunately, law must itself be made by men, “by one man or one class of men.” Hence “the almost universal perversion of the law.” Hence also the tendency toward democracy; the plundered want “somehow to enter—by peaceful or revolutionary means—into the making of laws,” intending either “to stop lawful plunder” or “to share in it.” 

Legal plunder is the perversion of law and it intensifies the moral perversion that led to it. First, “it erases from everyone’s conscience the distinction between justice and injustice,” imposing upon citizens “the cruel alternative of either losing his moral sense or losing his respect for the law.” And so, “if there exists a law which sanctions slavery or monopoly, oppression or robbery, in any form whatever, it must not even be mentioned.” Second, legal plunder perverts education by causing universities to endow teaching positions intended to promote regulation of industry,” twisting work itself to its purposes. 

All of this “gives an exaggerated importance to political passions and conflicts, and to politics in general.” Universal suffrage, for example, should not be considered “one of those sacred dogmas which it is a crime to examine or doubt,” and probably isn’t worth fighting for. After all, it isn’t really universal—women, minors, criminals, and the insane being excluded. “This controversy over universal suffrage (as well as most other political questions) which agitates, excites, and overthrows nations, would lose nearly all of its importance if the law had always been what it ought to be.” Then, no one would care. Bastiat already has given us the refutation of his own utopianism, however, having admitted that many people are eager to live at the expense of others. And indeed he corrects himself: Under prevailing circumstances, “certainly every class will aspire to grasp the law, and logically so”—even “beggars and vagabonds will then prove to you that they also have an incontestable title to vote.” Ah, but M. Bastiat, not only under prevailing circumstances, but under the circumstance of right law that you esteem there will always be those who want more—as you admit, citing human nature.

And so one does indeed see in the United States of 1850, where a better-than-usual set of laws exists. This notwithstanding, Americans are wracked by two evils which “have always endangered the public peace there”: slavery, “a violation, by law, of liberty,” and tariffs, “a violation, by law, of property.” These are two examples of “legal crime.” Meanwhile, in Europe, socialism arises—legal plunder par excellence, whereby “the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong.” Legal plunder has many ways of proceeding: tariffs, protection, benefits, subsidies, encouragements, progressive taxation, public schools, guaranteed jobs, guaranteed profits, minimum wages, a right to relief, a right to the tools of labor, free credit, and so on and so on. “All these plans as a whole—with their common aim of legal plunder—constitute socialism.”

There are three possible ways to deal with plunder: the few plunder the many; everybody plunders everybody; nobody plunders anybody. (Given Aristotle’s observation that the many might also plunder the few, Bastiat’s first category should by ‘somebody plunders somebody,’ but that is a mere refinement.) It should be needless to say that Bastiat prefers the last choice, whereby nobody plunders anybody.

This means that Bastiat advocates what is sometimes called ‘negative liberty.’ “When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all.” The idea of just law “excludes the idea of using law (force) to organize any human activity whatever [presumably other than legislation and law enforcement] whether it be labor, charity, agriculture, commerce, industry, education, art, or religion.” Law may (for example) rightly restrain religious acts injurious life, liberty, and property—prohibiting the sacrifice of virgins to the sun god, let’s say—but it may neither encourage nor restrain religious practices that injure no one. Law must not be used for philanthropic purposes. The democratic-socialist president of France during the short-lived Second Republic, Alphonse de Lamartine, wrote to Bastiat, invoking the slogan of the French revolutionaries: “Your doctrine is only the half of my program. You have stopped at liberty. I go on to fraternity.” “I answered him: ‘The second half of your program will destroy the first.'” Bastiat explains that fraternity must be voluntary, and that fraternity cannot be “legally enforced without liberty being legally destroyed, and thus justice being legally trampled underfoot.” If selfishness or greed is one extreme that ruins liberty, the other is this “false philanthropy”—false because while it may be heartfelt it does not achieve its intended purpose, loving mankind not wisely but too well, thoughtlessly ardent in its enforced transfer from one person to another. “We repudiate forced fraternity, not true fraternity…. We do not repudiate the natural unity of mankind under providence.”

Bastiat admits of degrees of plunder, from the “limited” plunder of protectionism to the “complete” plunder of communism. Plunder “substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives.” Laws that plunder denature human beings by obviating the “need to discuss, to compare, to plan ahead,” making their intelligence, the distinctively human characteristic, “a useless prop.” “They cease to be men.” Public education only reinforces this malign practice by its tendency to indoctrinate, to discourage independent thought. 

What about the third element of the French revolutionary slogan, equality? Bastiat claims (rather implausibly) that iniequality exists only because “old conquests and lootings”—acts of plunder by persons who eventually came to call themselves aristocrats—were legitimized, their economic and social results long since solemnized. Socialists are the new would-be aristocrats. Every socialist writer imagines “that he himself—under the title of organizer, discoverer, legislator, or founder—is this will and hand, this universal motivating force, this creative power whose sublime mission is to mold these scattered materials—persons—into a society,” rather as a gardener shapes trees and shrubs. Bastiat blames this ambition on “classical education.” Study of the classics is “the mother of socialism” because “conventional classical thought everywhere says that behind passive society there is a concealed power called law or legislator…which moves, controls, benefits, and improves mankind.” This same education seduced almost all of the major French thinkers from Bossuet to Fénelon to Montesquieu to Rousseau (“leader of the democrats”) to Raynal, Mably, and Condillac. Bastiat overlooks the possibility that these ‘moderns’ may have gotten the ‘ancients’ wrong, intentionally or by mistake. A founder or legislator as conceived by Machiavelli or Rousseau (for example) may differ from a founder as conceived by Aristotle, Livy, or Polybius. 

Bastiat claims that later writers “did not understand that knowledge appears and grows with the passage of time; and that in proportion to this growth of knowledge, might takes the side of right, and society regains possession of itself.” In point of fact, the moderns above all touted the notion of human progress and therefore supposed that human institutions could be designed to rechannel human nature or even (as in the case of the later moderns) to transform it. The ancients were more modest—very much including Plato, whose ideal politeia is presented with Socrates’ characteristic irony. It is rather Bastiat who shares the optimism of the Enlightenment, replacing egalitarianism and fraternity with liberty as the agent of human perfection.

Bastiat’s negative liberty doesn’t aim at merely prevention of plunder and despotism. “Is not liberty the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so?” By “organizing the right of the individual to lawful self-defense” and “punishing injustice,” and doing no more than that, law rightly understood will liberate human beings to achieve their nature. But to define liberty as power, to claim that civil societies owe every person an education aimed at ’empowering’ him, will have the opposite effect: “the total inertness of mankind, the omnipotence of the law, and the infallibility of the legislator.” This socialism is anti-social, “regard[ing] mankind as little better than mud”—clay in the hands of a Legislator who sets himself up as a god but is in fact nothing more than a would-be sculptor of dumb idols. And socialists who proclaim themselves to be egalitarians, to be democrats, respect elections only until they are safely in office. “The people are returned to assertiveness, inertness, and unconsciousness; the legislator enters into omnipotence.” 

Attempting to subordinate politics altogether, Bastiat insists that “a science of economics must be developed before a science of politics can be logically formulated.” Economics, not politics, is “the science of determining whether the interests of human beings are harmonious or antagonistic.” After that question has been answered, the science of law must precede political science, inasmuch as “law is the common force organized to act as an obstacle to injustice,” that is, to minimize antagonism, maximize harmony, by restricting itself to matters of public safety, including the protection of property, but surely (he confidently anticipates) not to “regulate our consciences, our ideas, our wills, our education, our opinions, our work, our trade, our talents, or our pleasures.” This is where the “constitutional sheriff” can be fitted in, the person who represents “the collective force” which “use[s] force for lawful self-defense.” Beyond that, a society will travel “the high road to communism.”

Naively, Bastiat “def[ies] anyone to say how even the thought of revolution, of insurrection, of the slightest uprising could arise against a government whose organized force was confined only to suppressing injustice.” The people never rose against the Court of Appeals, the Justice of the Peace, “in order to get higher wages, free credit, tools of production, favorable tariffs, or government-created jobs.” Quite possibly so, but what has that to do with the tribe of the lion and the eagle? “If government were limited to its proper functions, everyone would soon learn that these matters are not within the jurisdiction of the law itself.” Yes, but tyrannical souls can dream, can’t they? Bastiat remarks, if “these organizers of humanity” claim that “the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good?” Their answer will be, ‘We are the vanguard of historical progress.’ But even if, with Bastiat, one disbelieves such pretensions, Bastiat’s own argument only shows why the political problem is perpetual, not that liberty as he defines it will solve it. “The solution to the problems of human relationships is to be found in liberty.” But what if there is no solution to human problems, absent divine intervention? 

Whether propounded by a citizen like Sheriff Mack or by a thinker like Frederic Bastiat, plans for reducing government to the function of protecting lives and property (broadly understood), minimize the importance of political regimes, and of political activity generally. They incline to reduce politics to sub-political categories (law enforcement, economics) without seriously considering the possibility that Aristotle is right to consider human beings political animals.

 

 

 

Note

1. Gale was a white supremacist, a fact that looms large in any ad hominem argument against his movement. As with all ad hominem arguments, it cannot be used to refute his argument about lynching public officials, an argument which has its own difficulties, as Sheriff Mack evidently sees. Similar charges of racism against Mack and his associates themselves may or may not be true but also stand as irrelevant to the question of whether the arguments they actually make follow the principles of the Declaration of Independence and the Constitution.
2. This point is lost on the Republican Party of Hillsdale County, Michigan, where I live, whose leaders endorse both the slogan, ‘Taxation is theft’ and the notion of constitutional sheriffhood.