RULE OF LAW PERVERSION AND THE RISE OF MORAL DEPRAVITY
Since the New Deal, the growth of unrepresentative government through independent regulatory agencies has begat a phenomenon well recognized by public choice economists: industry capture. Today Washington is a cesspool of government-industry deal-making. Daily an army of industry lobbyists descend on Capitol Hill and the federal agencies to press for adoption of laws that will secure anti-competitive advantages. Members of Congress and the politically appointed heads of the agencies relish in this game, carefully assessing the field of lobbyists, picking winners and losers from among those capable of granting them effective kickbacks in the form of lucrative post-government employment or other economic and political perks. The effect is a massive perversion of the rule of law and the rise of a culture of morally depraved individuals. The constitutional ideal of a limited federal republic has been perverted into a bureaucratic oligarchy precisely because doing so has served the financial interests of the morally depraved, the unpatriotic, who hesitate not a moment to sacrifice principle to achieve personal gain. Of the roughly ten thousand people in decision-making positions in Washington, it is no exaggeration to say that but a small fraction of them, no doubt less than ten percent, favor adherence to principle over personal financial gain. The rest are consummate deal makers, willing to sell out every last protected liberty in exchange for a reward.
The founding fathers knew that the rule of law would invariably be perverted to serve private interests. Indeed, they understood government to be forever subject to that kind of corruption. In his Preamble to a Bill for the More General Diffusion of Knowledge (1778), Jefferson articulated his prediction that the constitutional ideal would be corrupted by those in power: “Whereas it appeareth that . . . certain forms of government are better calculated than others to protect individuals in the free exercise of their natural rights, and are at the same time themselves better guarded against degeneracy, yet experience hath shown that even under the best forms those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”
The founding fathers’ means for reducing the risk of corruption was to limit government severely and subject it to a system of checks and balances designed to countermand the evil inherent in the state. Thomas Jefferson, in particular, repeatedly wrote of his concern that liberty would be wrenched from the American people because the ideal of a limited federal republic could only survive if governors were committed to constitutional principle, yet already in the nascent republic political ambition threatened destruction of that principle. In his August 18, 1821 letter to Charles Hammond, Jefferson wrote: “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”
With the rise of the unrepresentative administrative state and the explosive growth of a federal government that knows no bounds (has eroded to near oblivion dual federalism and the Constitution’s non-delegation and separation of powers doctrines), perversion of the rule of law has become the common and accepted method of proceeding, rather than the rare and despised exception. Virtually everything done in Washington involves the creation of anti-competitive barriers or state sponsored monopolies. Obamacare, for example, is nothing more than a federal guarantee to the insurance industry of monopoly status. Sold by the President in part as a means to reduce the power of the insurance industry over patients, it does precisely the opposite. Nowhere else has the federal government compelled Americans to buy a private product regardless of the price offered for that product. Tens of millions of Americans not presently insured will buy insurance through plans qualified by the Secretary of Health and Human Services to the gross enrichment of insurance industry coffers. She will determine who wins and who loses among those in the insurance market who are now and will continue to struggle for her favor. In that respect Obamacare is Washington deal-making of a kind performed every day in Washington, affording those with political influence anti-competitive benefits through a perversion of the rule of law.
By causing this form of corruption to become commonplace, the modern federal government breeds a massive culture of cynicism, self-dealing, and moral depravity. Those who succeed in Washington and in the private firms that feed into this system are those who have no true commitment to the Constitution, to founding principles, or to integrity of any kind. Those who succeed are deal-makers who cleverly bid for laws designed to achieve anti-competitive benefits from those who will pay them back, handsomely, all under a false public interest veneer designed to beguile the public. These morally depraved individuals lead the public to believe its interests served by a deal that, in fact, achieves the economic ends of leading players in a particular industry. The reality, more often than not, is that the promise made to the public is utterly false or never achievable, while the underlying deal for industry is real and results in substantial financial rewards coming from anti-competitive barriers or forced redistribution of income.
The public is not free from the moral depravity that infects those directly involved in government-industry deal making. To buy popular support, politicians have long found the promise of federal benefits in exchange for a reduction in individual responsibility and liberty a bargain many Americans are willing to make. Moral depravity attends a system that invites those who have not earned wealth to be given the proceeds generated by those who have earned it. Moral depravity attends a system that encourages sloth, rewards inefficiency, and selectively shields titans of banking and industry from economic loss.
It is this lust for private gain through public means and perversion of the rule of law that is bringing down the United States at an ever escalating rate. It has destroyed the basic doctrines that define the Constitution. It has expanded government influence and power over every aspect of American life. It has crushed freedom of choice with government fiat. It has made the heads of agencies absolute monarchs in their respective jurisdictional fields and those subjected to regulation mere serfs. It has made members of Congress who publicly proclaim devotion to the electorate, privately contemptuous of those who elect them and more interested in fraternizing with those with substantial resources from which they wish to parasitically draw.
When a freshman member of Congress, a new political appointee, or even a young lawyer exiting law school to work for a K street law firm comes to Washington, that person very soon discovers the real politic of the Capitol. He or she soon recognizes that those who succeed in this city are not the strident advocates of constitutional principle or principle of any kind but the deal makers who use power and position to achieve rewards for select clients. A person in opposition to the forces that favor this system is marked as a heretic or worse. If that person succeeds in currying favor with the electorate or in making waves through litigation, he or she becomes marked as an enemy by those whose financial interests are threatened and, depending on that person’s potential for impact, the victim of all manner of bribery, black listing, character assassination, and entrapment.
The moral depravity induced by a system that defines success as government-industry deal-making also corrupts the media. A member of the press who wishes to have access and inside information dares not offend the power brokers in government and, thus, becomes a witting tool of theirs rather than a critical check on their abuses. Those with the courage to engage in serious investigative reporting about government corruption or abuse of power can expect to be cut out of daily inside contacts at the White House or the agencies. Promotion of the preferred message, of propaganda, is the quid pro quo for being first in line to receive word of a top news story.
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At root, as James Madison wrote to Thomas Jefferson when weighing the value of a Bill of Rights, the morally depraved would inevitably render any constitutional checks on power “a mere parchment barrier.” That understanding led Jefferson to muse that periodic revolution would be needed to restore a limited federal republic protective of the people’s liberties. Madison and Hamilton thought recurrent elections would suffice. We are now left with the stark reality of an unrepresentative government, the unelected heads of the over 250 federal administrative agencies, that makes almost all federal law. Only if the elected have the courage and tenacity to draw back that power and restore the dual federalism and non-delegation and separation of powers of the original Constitution will we be spared the necessity of a Jeffersonian revolution. As the Declaration of Independence makes clear, it is our duty to seek restoration of rights protective government while the existing government is still sufferable. We are now unquestionably at that precise point in history yet again, facing an onerous, rights depriving government and asking ourselves whether it will reform volitionally.
� 2012 Jonathan W. Emord - All Rights Reserved