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Are Moms Going
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New And
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By Attorney Jonathan Emord
October 6, 2009

Because Our Constitutional Republic Has Given Way to a Bureaucratic Oligarchy

When Obama promised change, many anticipated fundamental reformation of government. What they got, however, is no fundamental reformation but rather more (much more) of the same old government. The history of the United States from 1938 to the present, whether the people in power were Republicans or Democrats, is one of a transfer of governing power from the separate executive, legislative, and judicial repositories defined in the Constitution to the unelected heads of the federal bureaucracy, growing that bureaucracy into a monolithic giant. That dynamic continues at an accelerated pace in the Obama administration. Today over 90% of all new federal law is the product not of Congress, not of our elected representatives, but of unelected heads of federal agencies who are largely unaccountable to the courts, the Congress, and the American people. Year after year from 1938 to the present, the fundamental direction of the government has been toward greater oligarchic control by an ever mushrooming bureaucracy such that today we may truly say we are governed not by the republic the founding fathers created but by a bureaucratic oligarchy that the founding fathers condemned as the very definition of tyranny.

Throughout history tyranny has assumed many forms (monarchy, dictatorship, autocracy, and oligarchy) but all share in common a unity of legislative, executive, and judicial power in the hands of one or a few. Liberty, an historical rarity, has existed only when legislative, executive, and judicial powers have been limited and kept in separate and competing hands with the rights of the individual being sovereign. Tyranny may be defined as the unbridled exercise of will by one over the life, liberty, or property of another without the other’s consent. Rightful liberty, as Thomas Jefferson brilliantly explained, “is unobstructed action according to our will within limits drawn around us by the equal rights of others” (but not “’within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the right of an individual”). Our great nation, once a bastion of liberty, has fallen pray to tyranny precisely as the founding fathers predicted, through the rise of unbridled discretion in the hands of the few, the federal bureaucracy. Liberties once protected have been taken from us, usually by a form of bribery where we are promised a public good in exchange for an effective relinquishment of a liberty right, but, as Sam Adams eloquently stated, “the right to freedom being the gift of Almighty God, it is not in the power of man to alienate this gift and voluntarily become a slave.”

The genius of the American republic was its adoption of separate and competing legislative, executive, and judicial powers. The founding fathers were united in their admiration for the French Enlightenment philosopher Montesquieu who, in his Spirit of the Laws, understood the unity of any two of those powers in single hands to be the death of liberty and the birth of tyranny. John Adams captured the essence of that threat when he wrote in his Thoughts on Government, “a single Assembly, possessed of all the powers of government, would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favour.”

Through the founders remarkably unselfish adoption of a constitutional republic, they gave the world a unique and invaluable means to defend liberty: a government instituted among men to protect the rights of the governed rather than the rights of those who govern. With rhetorical flourish Jefferson vanquished tyranny in favor of liberty in the Declaration of Independence. The Constitution transformed the Declaration’s ideal into a workable government that again made individual liberty paramount by denying any single individual or department combined legislative, executive, or judicial powers. Had America remained true to that constitution of liberty, we would have remained sovereign and our freedoms secure. A true republic is the greatest bane to tyranny and the best defense of liberty. Liberty can be crushed by brutes who dominate others through force of will (the by-products of anarchy) or by a governing elite who deprive the rights of the majority for the benefit of a minority through the exercise combined legislative, executive, and judicial powers in their own self-interest (the by-products of monarchy and oligarchy). But when our constitutional republic functions, it protects liberty by denying government power, particularly the power to transgress the rights of man.


Our constitutional republic has been replaced by a bureaucratic oligarchy. Our rights once secured by the rule of law have been violated by the arbitrary rule of men. Liberty has given way to tyranny. The founding generation predicted that the limits imposed by the Constitution on governors were valuable only if respected by those in positions of power and defended by the public against usurpation of power. Unfortunately, since 1938 the government, by incremental encroachments, has abandoned the Constitution, largely because accountability and responsibility for action by members of Congress involves risks to reelection. Better to delegate away the power to decide difficult questions to independent commissions than to decide those questions themselves because the bane of reelection security is the engendering of political opposition by making decisions on controversial issues. James Madison warned that “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” Those who have voted for a transfer of governing power from Congress and the Courts to the bureaucracy have not heeded Madison’s warning.

Since 1938 the Congress of the United States has delegated its governing power to over 183 independent regulatory commissions. Those commissions possess combined legislative, executive, and judicial powers. Those commissions govern the intimate details of commerce in every field of endeavor. Invariably those commissions become the servants of the most powerful interests they regulate. So it is that the pharmaceutical industry controls the FDA such that FDA approves unsafe drugs over the objection of its medical reviewers. So it is that the major broadcasting and cable networks control the FCC such that the FCC enforces rules that give incumbents protection from competition. So it is that the DEA is also controlled by major pharmaceutical interests, so that the DEA Deputy Administrator drives out of existence all independent suppliers of ephedrine and pseudoephedrine cough and cold remedies, while protecting from legal action suppliers of the major pharmaceutical brands.

Our nation, once ruled by those who consciously neglected self-interest to fight to secure liberty is now ruled by those who sell liberty to achieve personal gain. The solution lies in simple measures that have profound consequences. I have written a bill for Congressman Ron Paul called the Congressional Responsibility and Accountability Act (see for more information). That bill, HR 3396, prevents any regulation adopted by an agency from going into effect unless the elected representatives of the people vote the regulation into law in the typical manner in which bills are passed. That one measure would restore the separation of powers by making Congress responsible for all laws as the Constitution requires. Please go to my web site at and use the links to send a message to your member of Congress demanding that he or she become a co-sponsor of HR 3396.

The future of individual liberty in America depends on whether we can restore the system of checks and balances on federal power that is the true guardian of liberty. Until our Constitution of Liberty is restored, we can anticipate more acts of tyranny, less freedom, and more government intrusion into our daily affairs. Decisions rightfully our own will be made for us by those in government who presume to know better what is in our best interest than we do. In the end, if we do not rise to the occasion and vote out of office the enemies of liberty and insist on true reform, true change, back to a nation of constitutional law rather than a nation of the arbitrary will of the bureaucrat, we will be rendered indistinguishable from those nations of the world where talent has little reward and where the freest people are those in government who rule others.

How much is your liberty worth? Can you sit idly by as year after year your freedoms are taken from you, or will you choose to invest time and energy in restoring constitutional governance to America? That son of liberty who helped drive the American revolution against the tyranny of George III, Sam Adams, answered with these immortal words:

The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards, and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of false and designing men.

� 2009 Jonathan W. Emord - All Rights Reserved

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Jonathan W. Emord is an attorney who practices constitutional and administrative law before the federal courts and agencies. Congressman Ron Paul calls Jonathan “a hero of the health freedom revolution.” He has defeated the FDA in federal court a remarkable six times, four times on First Amendment grounds. He is the author of The Rise of Tyranny.

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How much is your liberty worth? Can you sit idly by as year after year your freedoms are taken from you, or will you choose to invest time and energy in restoring constitutional governance to America?