REPUBLIC TO OLIGARCHY: A History of America

At the close of the Constitutional Convention of 1787, Benjamin Franklin, then 81, had gained a reputation for shrewd realism.  The handiwork of the Continental Congress impressed him, but he believed it imperfect; he knew it was better than any other plan for government on earth but he feared the plan might not survive. 

As he left the Convention for the last time, a group of anxious citizens asked him what kind of government the delegates had created.  The deliberations were secret and, so, the curiosity of Philadelphians had reached a fever pitch.  Responding to the inquiry, Dr. Franklin replied, "a republic, if you can keep it." 

Sadly, 220 years later, we have lost it.

Today our nation is largely run by the unelected heads of the federal independent regulatory commissions.  Those heads are the most powerful political leaders in the United States, more powerful than the President, any member of Congress, and any federal judge. 

Their will is very much the law.  In their hands rest legislative, executive, and judicial powers which they wield daily without having to answer to anyone for the consequences.  They rule as oligarchs. 

Unelected, they are not responsive to the electorate or to the departments of government created by the Constitution.  They create and enforce the law, and they try law transgressors, all outside the Constitutional departments (the Congress, the Executive, and the Judiciary). 

Nine-tenths of all laws in the United States are not the product of actions by our elected representatives, they are promulgated by unelected Commissioners. 

Truth be told, in the day to day affairs of the people, the unelected rule America.  We are no longer governed by the limited federal republic the Founding Fathers understood to be the only true safeguard of liberty, the last best hope for freedom on earth.

During the Revolutionary War, no words stirred the hearts of patriots more than those of Thomas Paine (1737-1809) in Common Sense.  There, he defined the rule of the unelected as the antithesis of liberty. 

Paine contrasted monarchy (the rule of a hereditary King who held legislative, executive, and judicial powers) with a republic where power was subject to constitutional limits and was dispersed in competing power centers. 

"The nearer any government approaches to a republic," wrote Paine, "the lest business there is for a King." 

The single point of distinction was that here in America we were subject to the rule of law, rather than of men: "But where says some is the King of America? . . . . [I]n America the law is king.  For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other."     

The Constitution of 1787 gave us a limited federal republic because the Framers of our Constitution detested concentrations of power and understood them to pose a lethal threat to freedom.  They understood the unification of legislative, executive, and judicial powers in single hands to be the very definition of tyranny. 

Distrusting power, they favored a Constitution that expressly delegated specific powers to competing departments within a single government, giving each department authority to check the other and creating in the aggregate a limited and balanced system that would act out of necessity rather than out of the fancy of oligarchs.

The American republic was thus a "mixed constitution."  It was not a pure democracy.  In its first three articles, our Constitution invests in the Legislative, the Executive, and the Judiciary specific defined powers and it makes each department dependent upon the consent of the others to ensure effectuation of any action. 

Congress is constitutionally empowered to make law but a law passed by Congress may only have effect if signed by the President or, if vetoed by the President, if that veto is overridden by a two-thirds majority of both houses of Congress. 

Even then the law is subject to challenge in the courts, and if the federal courts determine the law to be unconstitutional, it may have no further force or effect.  The foregoing illustrates how our system depends upon different powers centers to check and balance one another, designedly limiting power so as to prevent any single department from having unbridled discretion to act. 

The concept of a separation of powers is inseparable from the notion of a "republic."  The Framers of the Constitution were heavily influenced by the French philosopher Montesquieu (1689-1755), who explained in his 1748 treatise The Spirit of the Laws:

There is no liberty if the power of judging be not separated from the legislative and executive powers.  Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.  Were it joined to the executive power, the judge might behave with all the violence of an oppressor . . . . There would be an end of everything were the same man, or the same body . . . to exercise those three powers . . . of enacting laws . . . of execting [laws] . . . and . . .of judging the crimes or differences of individuals.

James Madison (1751-1836) echoed these sentiments when he wrote, "[t]he accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, few, or many, and whether hereditary, self-appointed, or elected, may justly be pronounced the very definition of tyranny." 

Alexander Hamilton (1755-1804) explained that the separation of powers was "itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS."  John Adams (1735-1826) likewise wrote in 1776 that "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 favor."

Today, 220 years after the Framers created the grand design of our Constitution, the core concept of limited and separated powers, of checks and balances, has given way with the rise and full fruition of the regulatory state. 

Contrary to the Framers' design, we are now principally governed by the unelected.  If you venture to any law library, examine the shelf space dedicated to the acts of Congress and compare that to the shelf space dedicated to the code of federal regulations, you will find that roughly 10% of the space is for the laws enacted by Congress, the gross mountain remaining is for the laws promulgated by unelected officials in the independent regulatory commissions. 

The independent regulatory commission possess delegated power to create laws (regulations), prosecute those who violate the regulations, and adjudge those who have violated the regulations. 

In short, they are that single assembly or body possessing all powers, legislative, executive, and judicial, that the Framers of our Constitution considered, to quote Madison, "the very definition of tyranny." 

Indeed, with virtually unbridled discretion, they regulate every aspect of commerce in the United States and oftentimes run roughshod over the rights of individuals in the market.  Through regulation, they choose winners and losers for the market.  They distort free enterprise to promote their own private agendas.

Our present system of government is no longer a limited federal republic.  The republic given us by the Framers of the Constitution has given way to a modern regulatory state ruled by oligarchs. 

That state has rent the constitutional design, made it largely irrelevant in the day to day affairs of the people, and has brought about tyranny by circumventing the limits on power the Framers gave us and asked us to preserve, protect, and defend.  Until we return to the original constitutional design, we will be victimized by the abuses of unelected bureaucrats. 

We have experienced three quarters of a century of law by the unelected acting outside the constitutional system of checks and balances, and we have suffered a tremendous loss of economic liberty and individual rights all along the way, a trail of destroyed businesses, ruined lives, and manipulated outcomes (pre-determined winners and losers). 

If we are to restore our country's great constitutional heritage, the work must begin with a return to the original constitutional design and a dismantlement of the unconstitutional substitute that rules us today.  A simple measure could profoundly tip the scales back in the right direction. 

Imagine if no rule could be adopted by a regulatory agency that caused an economic impact of $500,000 or more or caused a single person to be unemployed unless a majority in Congress approved the measure. 

A law of that kind could return to Congress the duty of oversight and responsibility that Congress has so willingly given away to the regulatory agencies. 

While it is politically expedient for a congressman or senator to avoid responsibility for bad government actions by delegating the authority to engage in those bad acts to regulatory commissions, laws of this kind are cowardly, dishonorable, and the bane of our country's existence. 

Such laws are taking us down economically.  They are destroying the precious fabric of freedom upon which we have long depended.  They sacrifice the constitutional liberties of us all for the political aggrandizement of those in power.

When our children ask in the first decades of the twenty-first century the question Franklin faced in the eighteenth, will they respond, "a republic, if you can keep it," or will they be forced to admit that we are ruled by an unelected oligarchy?    

Jonathan W. Emord is a constitutional lawyer based in Washington, D.C. who sues the federal government frequently.  He has defeated the Food and Drug Administration more times in federal court than any other attorney in American history.