In medicine, no patient can be cured unless he is first properly diagnosed. Herpes is not a rash, and warts are not dry skin.
In law, no case can be won without a proper legal theory to explain past human actions. What might be construed as an unjustified breach of contract might, in fact, be a fully-justified anticipatory breach — anticipatory because one party to the contract has come forward to declare that he is financially unable to fulfill his obligations.
A proper diagnosis is no less essential to politics. The American Constitution, ratified in 1789, created a political entity which had not existed before, namely, a federal government with particular powers, and a system of checks and balances to keep the federal government within its powers and away from ultra vires actions.
Over time, this constitutional scheme has been wiped out. Today, the notion that there are limits on the powers of the federal government is ridiculed by the mainstream media, by academics, and by more than a few politicians — of both major parties.
The federal government — indeed, government at any level — is no longer regarded as existing for the sake of enforcing the rules of just conduct (property law, contract law, and the laws governing private wrongs such as defamation or trespass, known as the law of torts), but rather for the sake of organized looting — robbing California to pay West Virginia. This is known as “social justice,” a term which F.A. Hayek, in volume two of Law, Legislation and Liberty, rightly attacks as incapable of precise definition — and therefore an invitation to unlimited government, and hence tyranny.
Consider, then, the recent article on the Wall Street Journal editorial page by William McGurn, entitled “Teacher’s Pets,” wherein McGurn details the fact that the National Education Association — America’s largest teachers’ union — appears to have control of the Democratic Party.
First, this is not news. What is newsworthy is that there is a paper trail to prove the Democratic subservience to the narrow interests of a very powerful pressure group. As McGurn notes,
the NEA’s name surfaces again and again as one of those organizations that, in return for financial contributions, were given seats on campaign committees in 1996 as well as the right to approve or reject the Democratic agenda…All the while the NEA was sitting on these committees and financing these Democratic campaigns, it was listing zero dollars for political expenditures on its tax forms. (emphasis added)
As McGurn notes, this special interest control of federal educational policy explains why public schools simply cannot be reformed: “It’s because the NEA — with 16,000 local offices — has in some respects become the Democratic Party.”
By the way, McGurn also reports that “in response to a request from the Democratic National Committee and the AFL-CIO, [the documents] were sealed by U.S. District Judge Gladys Kessler.” McGurn notes that, had the Landmark Legal Foundation not had a look at the papers when they were made public by the Federal Elections Commission for four days in May, this would all remain secret. Rightly, McGurn wonders whether or not the IRS ought to look into the matter.
The issue, however, also demonstrates the nature of contemporary, unlimited democracy as detailed by Friedrich Hayek in Law, Legislation and Liberty. Hayek argues that there is nothing in principle wrong with democracy. According to Hayek, so long as democratically-elected legislatures confine their task to legislating with respect to the rules of just conduct, all should go well. (Of course, the real fight between F.A. Hayek and Murray Rothbard, then, is over the issue of whether Hayek is correct about democracy. In other words, can democratic systems ever create structural measures which prevent a totalitarian drift? If not, then Rothbard’s anarcho-capitalism is a better alternative).
Trouble quickly arises when democratically-elected legislatures make a common error in the history of democratic regimes: they conclude that because democratic election is the be-all and end-all of what goes politically, they can do whatever they like.
And so the limits on government are removed, and, rather than merely enforce the rules of just conduct — negative prohibitions on interfering with other people and their legitimate interests — democratic institutions switch to dictating positive orders with respect to human conduct.
And so we have OSHA, the EPA, and countless other agencies which dictate the very minutiae of life. Want a toilet? It may only contain as many gallons as an administrative agency declares. Want to paint your house? The paint may only contain ingredients approved by an administrative agency. Want to put up a fence? You need a permit. Want to paint the fence? You must use an approved color.
This is a free society?
No, it isn’t. It’s a regulated society, on the road to a totalitarian society, i.e., a society in which the government has total control over social life.
But such positive orders are not all that the contemporary regulatory state gets away with. It has also abandoned the notion of public taxation and spending for public purposes, in favor of public taxation (which is simply taking someone’s money upon threat of imprisonment) for private purposes, i.e., for special interests and pressure groups.
Once the idea that government exists only to enforce the rules of just conduct has been cast aside, then the idea that government exists to “do something” and “make everything right” goes unchecked. And so every special interest lines up at the trough. In the process, some citizens are robbed so that benefits may be showered on others. Additionally, citizens are robbed so that the money — minus the cost of running the relevant government goody-hand outs — can be given back to those very citizens. Although they are not really receiving any benefits, the appearance of a windfall is enough to convince some to support the scam.
The fact that the largest teachers’ union may literally control the Democratic Party, then, should come as no surprise. It is the very nature of contemporary, spoils-based democracy, unlimited by the rule of law.
Mr. Dieteman [send him mail] is an attorney in Erie, Pennsylvania, and a PhD candidate in philosophy at The Catholic University of America.
© 2001 David Dieteman