Fight Excess Power with Excess Power?

Responding to my reference to Peter Schwartz’s “Mob rule comes to Washington,” RIC Professor Thomas Schmeling seems to think that I’ve written myself into a corner:

I’m confused. In this post you object to rule by the “mob” (which appears to be the democratically elected representatives of the people) and you object to “government unconstrained by the principle of individual freedom.” I get that. We need, as James Madison told us, some protection against the “tyranny of the majority”.
Now, it seems to me that what constrains government is the Constitution, and that constitution is best enforced against mob rule by an independent judiciary, free from political pressure (like the need for re-election)
However, you also denounce an independent judiciary as the “dictator branch” and a ” judiciary supported by an aristocracy of bureaucrats”.
So, what do you want…majority rule or protection of rights free from majority influence?
So, I’m confused. I’m happy to be edified on this but, for the moment, I’m tempted to think that your support for majority rule depends on whether the majority supports your substantive views. I hope that’s not the case, as I’m sure you would not be so unprincipled.

One can see in this, perhaps, a foundation-level reaction to government growth that sends people down an erroneous strategic path. As our government becomes more centralized at the federal level, reaching more broadly and more deeply, the response that Mr. Schmeling advises for instances of executive and legislative overreaching is to elevate the authority of another branch of government sufficiently to respond.
Along that route, two ultimate outcomes are possible, neither of them attractive to those who privilege freedom. If we continue to cede social ground to government, one branch may eventually become so powerful as to actively impede the others unjustly; the executive might disregard the judiciary, or the judiciary might block efforts toward democratic reform. Alternately, the branches could coalesce even more thoroughly into a governing cadre, with the legislative and executive appointing allied activist judges and the judiciary affirming the right of the other branches to oppress.
Frankly, I disagree, philosophically, with Thomas’s characterization that the Constitution “constrains government”; that implies the existence of a clear application to circumstances that the founders could not have foreseen, which I don’t believe to be available for interpretation and which I don’t trust a handful of unelected judges to discern. Whatever the legalities, it isn’t mere semantics to insist that the Constitution be seen as delineating the boundaries of our government and defining its structure.
My objective in making points of order, so to speak, is to increase consensus that, whatever the ideology furthered by usurpation of power, the act itself ought to be opposed. When the President of the United States looks to be becoming the de facto CEO of any company receiving financial assistance from the government, and when the executive branch presumes to insist that such money be taken and/or not returned when the private organization wishes, that in itself ought to motivate sufficient opposition to bring about democratic correction.
In like principle, we also must return to a federalist approach that disperses power broadly, such that opposing “mobs,” if you will, can grow in their own enclaves. It is very convenient for those who think they’ve got a full grasp of secular Truth to leverage the federal government to impose their views on the entire country, and to use that government to fix all problems, but the end result is an organic metastasis toward the death of liberty.

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14 years ago

Citizens were rightly concerned about the way the Bush/Cheney white house used the “unitary executive” doctrine. Bush would assert that executive priviledge when signing a law with an exception for the executive in a signing statement. One of those laws was a law restricting the use of torture. Electronic surveillance of US citizens was authorized by Bush using that concept that the President as head of the executive branch had that right.
Ignoring the Geneva Conventions internationally and detaining “enemy combatants” without due process were also done by Bush and Cheney. In short they believed that Presidential power should be unchecked. Would you describe that use of the unitary executive by Bush and Cheney as how did you put it…
an organic metastasis toward the death of liberty.?

Thomas Schmeling
Thomas Schmeling
14 years ago

Gee, Justin. If you keep posting my comments to the front page, I’m going to get a swelled head.
I’d only note that it isn’t my idea that the solution for “executive and legislative overreaching is to elevate the authority of another branch of government sufficiently to respond,” it is the solution that the framers of the Constitution chose.
Likewise, I don’t think it’s a “characterization” to say that the Constitution constrains government to protect rights, it’s simply something the Constitution does.
Whether specific judicial interpretations of those protections are correct or not, is another matter.

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