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Thursday, November 19, 2009
Legislation Without Representation Is Tyranny

We have a larger, more momentous ongoing task than defeating the health care takeover or blocking a devastating climate treaty: to recognize our tyrants and depose them through the electoral process, and to find and put in their place better American leaders, who are capable of recognizing tyranny in our institutions and in themselves, who are philosophically equipped to hate it when they see it, and who will oppose it persistently, intelligently, and effectively wherever they detect it, irrespective of party.

An Odd Pair of Tasks, Perhaps

I have set myself a two-fold task for this blog post, which I've been writing and rewriting for some time: first, to describe what I judge to be a specific, newly ominous, growing element of tyranny on Capitol Hill; and, second, to explain the available and appropriate remedies, which do not include armed rebellion. I can't bring myself to separate the two topics, the tyranny and the remedies. So sit back and relax, and let's reason together for a while. You won't need the rifle.

I'm well aware that I have already troubled some readers by using the word tyranny, and others by using the word tyranny but insisting that an armed, popular uprising is not the appropriate response. If you are in either of these camps, but still reading, take a moment to congratulate yourself on being adult enough -- and citizen enough -- to read something which makes you uncomfortable, and with which you expect to disagree. Then we'll continue.

No Big Deal

I'm not a big fan of straining at gnats, in politics or otherwise. I'm also well aware that politics will be politics, and I'm quite comfortable with the proposition. I don't use the word tyranny lightly, and I'm not going to waste it on mere politics. To wit:

One of the Drudge Report's headlines after the House of Representative passed the health care bill a week ago last Saturday referred to Speaker of the House Nancy Pelosi as the "Sneaker" of the House, because Saturday evening votes are sometimes used to do things with as little public and media scrutiny as possible. I'm not sure stealth is conceivable in this case, but even if it was somehow sneaky, the Saturday thing does not upset me. That's politics. That's how the game is played. It is not tyranny.

Very Big Deal

I don't want to appear to dismiss the health care legislation itself as small potatoes, either because the Saturday caper does not trouble me or because this blog post will eventually describe an even bigger problem. So let me be clear about the health care legislation -- but remember, we're on our way to a bigger theme. Even if you suspect, as I do, that a government takeover of health care would be a fertile field for tyrants large and small, it is a future possibility. The tyranny we'll end up discussing here is a present reality.

The health care bill the House passed and the major bills in the Senate are a huge step toward government takeover of the health care industry, which is more than one-tenth of the US economy. The comprehensive damage this takeover proposes to the world's most advanced health care system and the world's most productive and innovative economy is bad enough in itself. One present portent of future ills is the fact that employers are putting off hiring they would otherwise already have done, because they cannot project the cost of an employee even a year or two down the road. This is largely because of proposed health care reform's inevitable but still unpredictable impact on employers.

Beyond the medical and economic implications, this health care legislation's direct threat to American freedom itself is also grave, because the logic is relentless: If the government funds health care, the government has an undeniable and defensible interest in promoting healthy habits and lifestyles. It can and likely will use that interest as an excuse to intrude into virtually every facet of human life.

So yes, I think the proposed health care legislation itself is a very big deal, but it's time for our discussion to move toward discussion of an even bigger deal. The road to that discussion leads through a brief look at the legislative process's general outlines. These are mostly set forth in the United States Constitution. Since we're already on the subject, more or less, we may as well use health care legislation as our example in that discussion. Remember, again, that we're on our way to considering a specific form of tyranny.


One of the great virtues of our constitutional system is that numerous structural and procedural checks have to fail before something really bad, like socialized medicine, can happen legislatively. As an illustration, consider the obstacles to health care takeover legislation in Washington. (I just decided I'm tired of calling it reform.)

Here's how the Left wants things to go: The Senate will pass its own version of the bill. It will inevitably be different from the House version. A conference committee will split the difference, find some other compromise, or just do its own thing, producing identical bills which can then go back to both House and Senate for debate and for up-or-down votes without amendment. Enormous pressure of several kinds will be brought to bear, in order to assemble the needed number of votes, but in the end it will pass both houses again. The President will sign any bill that presents itself as health care reform. The Supreme Court will yield to the will of the political branches and either not touch the new law at all, or confine itself to nibbling around the edges.

Things are not likely to proceed so smoothly. Here are the safeguards -- or obstacles -- our system of checks and balances provides. Again, most of them are specified in the Constitution.

  • The two houses of Congress, differently composed, check each other. It's possible (if unlikely) that the Senate will pass no health care bill at all, even though the House passed one, or that the conference committee will be stalemated, or that the conference bill will fail in one house or the other. While this is in process, there remain two chances for citizens to sway votes in the Senate; one chance remains to sway House members' votes.
  • The House and Senate each have their own rules, which can be used creatively in some cases to obstruct legislation. The Senate filibuster is a well-known example; we may see one in this case. There is presently some discussion of using Senate rules to require the entire, enormous bill to be read aloud three times by the clerks, which will slow down and possibly frustrate the process. (Each reading of the current, 2074-page Senate bill would take dozens of hours.)
  • In some cases Congress and the President check each other, most dramatically through vetos and veto overrides. Don't expect a veto here, even if it is theoretically possible that the President -- at just the right time -- will magically understand and embrace the economic freedom he has been taught to hate and to blame all his life, or that he'll read his falling poll numbers and suddenly embrace the public mood, with the same effect.
  • The federal judiciary can check Congress and the President. There is a chance, if the health care takeover passes, that the Supreme Court will have a fit of constitutional conscience and strike it down wholly or in part. This is unpredictable; President George W. Bush signed a campaign finance bill he supposedly didn't like, fully expecting the Court to overturn it, but they upheld it. (George Will has an interesting column this week about some specific possibilities here.)
  • The states themselves still wield some power; in theory they could amend the Constitution without the consent of Congress, in a way that would overturn health care takeover legislation. Don't look for that to happen. More realistically, the states may be able to demand meaningful concessions or exemptions of some sort that will limit the damage. And it isn't necessarily a given that a federal law will always trump a state law. (See the same George Will piece on this, too.)

There are further checks. One is specific to this case. Another is built into the system or, more precisely, protects the system but is built into the philosophy of popular sovereignty which created and legitimizes the system.

Because of the Left's need to fudge the revenue and expenditure projections -- at least in the bill the House passed -- the necessary taxes would begin almost immediately, but the system itself would not take over until after the next presidential election. This provides a window for a new, far different Congress, and perhaps a new, far different President, to repeal the act and most of its damage, before it becomes practically irrevocable. Clearly, the 2010 and 2012 elections will be pivotal.

The final check may make you squirm. It will help to remember that I'm not advocating it or claiming it is justified in this instance.

In this and any other legislative case, the last resort is the people's ability and fundamental right to revoke the power they have granted to their government -- by force of arms, if necessary. Part of the thought behind the Second Amendment, which protects citizens' right to arm themselves, is that an armed population has the ability to abolish and replace the government it has created and authorized, if that government becomes tyrannical or ineffective. This really is a last resort, which is probably useful more often as a deterrent, but it also exists as an actual threat. Notably, the people who invented our government had recently thrown off a tyrannical government by force of arms. They were arguably in the process of replacing the ineffective American government that replaced that tyranny -- but they were doing so peaceably, by abolishing the Articles of Confederation in favor of a new Constitution, which would finally be ratified by the sovereign people's elected representatives in each state.

Once again, don't be nervous. I'm not advocating the violent or peaceful exercise of this fundamental right -- not even in connection with a bigger problem than the health care takeover.

Even Bigger Deal

I don't know what will happen with the present neofascist push to nationalize health care. In any case, it's not our only crucial battle just now. I need to mention one other looming battle, and then we can move on to the point of this exercise.

If you need something else to worry about, consider the possibility that the President will soon sign, and the Senate ratify, a climate-related treaty that will (a) partially cede US sovereignty to an international body and (b) impose massive, ongoing transfers of wealth from the US economy to the rest of the world, under the guise of saving the earth from the effects of supposedly anthropogenic climate change. As far as I'm concerned, signing and ratifying such a treaty would be treason, and I will call it such if it happens.

These measures -- the health care takeover and a climate treaty -- will be devastating, if they come to pass. But there is a greater, more immediate threat than either of these, and it is bipartisan to some degree. You may wonder, what would worry me more than socialized medicine and impending treason? In a word . . .


In three words, a synonymous phrase: legislation without representation.

For many years I've studied the tyrannies of the present and the past, as well as the tyrannies novelists and philosophers have imagined for the future. I lived for just one summer under one of the twentieth century's great tyrannies, which later collapsed under its own weight, nearly two decades ago, to the good of hundreds of millions of people. Tyranny can assume a variety of outward appearances and employ a variety of mechanisms, and it can exist in varying degrees, but if you watch it carefully and think about it enough, it's not hard to recognize some common features.

Here are two examples of legislation without representation. The first is potential; the second is present and actual and will get most of my attention here. 

One example is at the Environmental Protection Agency; this one is just theoretical for the moment. For some months we have heard that cap-and-trade legislation's failure in the Senate (so far) is not a big deal, because if Congress can't impose such a system through legislation, the EPA can and will do it without new Congressional legislation, through regulation -- either by creatively reinterpreting the Clean Air Act or through some other law-making exercise which bypasses the people's elected representatives.

The other example is presently more mature and has brazenly taken root in the one place in our national government which should be most immune and most vigorously opposed to it: Capitol Hill. Please note from the beginning that both major parties are complicit. It's not every Senator or Member of Congress or even all Democrats, but it's not just Democrats, either.

We have bills 1000 pages and 2000 pages and more in length, which will cost trillions of dollars and fundamentally alter American society and government, which are being voted on by elected representatives who have only a general sense of what the bills contain. I'm not saying that every elected representative should read and analyze every word of every bill before voting; that's not quite the same thing, and it would be impractical even for many local officials. But the more important or expensive or transformative a bill is, the more crucial it is for the people's representatives and the people themselves to know what's in it and to discuss and debate it thoroughly.

If elected legislators are rubber-stamping the creations of congressional staffers or lobbies, more or less sight unseen, and if the people themselves lack sufficient opportunity to examine proposed measures before their representatives vote, then it's those unelected staffers and lobbyists who determine our laws, not the representatives we (the people) have empowered to do so.

If elected legislators are ignoring the details of major legislation and simply voting with their party leadership, it's the party leaders who determine our laws, not our elected representatives collectively. Either way, this is broader than taxation without representation, which motivated the American colonists. It is legislation without representation, which is undeniably a species of tyranny.

We often gripe about legislators who vote without really knowing the legislation on which they are voting. This is not a new evil. Nor is it new that representatives are sometimes excluded from meetings where bills are crafted, usually because of partisan differences. There is a new evil, and it is greater than these.

In some important cases, the text of the most crucial, expensive, transformative, and complex legislation is not being released to the public or to members of Congress far enough in advance of votes to allow the people or their representatives to study it carefully. For example, when the House was considering the cap-and-trade bill, which was already about 1000 pages long, about 300 pages of proposed amendments were released in the wee hours of the morning of the final vote -- too late for proper scrutiny and debate. And anyone who tried to get a copy of the House's enormous health care takeover bill more than ten days before the final vote failed to do so, because it wasn't available -- to members of Congress or to the sovereign people of the United States. (Can you study 100 or 200 pages of an important bill per day, every day for ten days, including weekends? Neither can your representative. And there's no way to debate such a large and pivotal bill thoroughly in the few hours allotted on the House floor.)

When bills are rushed through the process without time for scrutiny, our elected lawmakers, whether they vote yea or nay, cannot possibly be consciously and conscientiously representing the people or the best interest of their district, state, or nation, because neither the representatives nor the people really know what they're doing. Such legislators may be representing the imposed interests of their party leadership, but that is not the same thing at all.

In case you're wondering, I'm not the only one troubled by this lack of transparency. Eight US Senators -- seven Democrats and Senator Joe Lieberman, who is technically independent -- recently wrote to Senate Majority Leader Harry Reid, complaining of a lack of transparency and recommending minimum time periods for the text of preliminary and final bills and their amendments to be available to themselves and to the public, prior to votes.

At present this tyrannical practice of concealing the text of bills and amendments until it's too late for proper scrutiny appears to be a deliberate effort by the party in power to minimize opposition and avoid difficult debate. The leading tyrants in this case are therefore Democrats, particularly leaders and committee chairs in the House of Representatives. But the Republicans are not blameless here. Not only have they been inexcusably feeble in their opposition to this abuse; I suspect that, when the tables are turned, they will themselves engage in the tyrannical practice of hiding the details of their acts -- again. You may recall that Republican majorities were not exactly pillars of statesmanlike rectitude when they were in power earlier in this decade. (Earmarks, which are not part of bills when they are voted on, live on the fringes of the same tyrannical neighborhood, for example. You know how Republicans have loved earmarks.)

In summary, so we have elected representatives voting on very consequential bills not only without knowing, but without being able to know, and without their constituents being able to know, exactly what they're voting on. This is tyranny, plain and simple.

In other, more generic terms, in the important work of preserving our freedom, government processes matter, and some of the most basic and essential processes of American government are now corrupt, with tyrannical effect.

Therefore . . .

No, it's not time to reach for the rifle; again, I'm not suggesting armed rebellion. Armed rebellion is unconscionable, so long as electoral remedies are possible. Admittedly, the Left is tampering with the census and with the vote itself, with potentially devastating long-term effects on the integrity of elections, but the fact remains that there is still an election on the calendar in November 2010. The people, if enough of them see this developing tyranny for what it is, and if they care, can still vote the tyrants out of office. In the meantime, the threat of such a house-cleaning may to some degree limit the tyranny's expansion.

Here is an uncomfortable thought. In our reasoning and justification, we cannot evade the fact that the sovereign American people elected and reelected these tyrants in the first place, despite ample evidence (at least in some cases) of their philosophies, character, and intentions. This gives the tyrants a certain legitimacy until the next election, and it seriously undermines our justification for any sort of rebellion outside the ordinary political and electoral processes.

It says something of the times that Ambrose Bierce's definition of democracy seems so apt just now. He said, "Democracy is the theory that the common people know what they want and deserve to get it good and hard." If enough voters either want tyranny or are indifferent to it, we get tyranny.

I'm Actually Optimistic Here

Though haunted somewhat by the sense of justice I have just expressed, I remain optimistic that, if we work hard, work smart, and work loud between now and November 2, 2010, and if we can find and support better candidates, who are not simply the next batch of tyrants-in-waiting, then in that day's election we can effectively obstruct and in some measure roll back the growing tyranny -- having limited it in other peaceful ways in the meantime, I hope.

The 2010 election is not the whole war, but it is a crucial battle. It's not too soon to start fighting it, and it's not quite too late to join the fray, either. We have about 50 weeks.

One Battle Is Not the War

Such a political victory, though essential, will not be enough, even if it is followed by a similar triumph in 2012. To defend our freedom and resist tyranny in the long term, we must in large measure reinvent the culture of freedom, both in and out of politics. As I have written before, we must find ways to argue freedom's case independent of any specific piece of proposed legislation, so that the sovereign people, one by one, will gradually come to understand freedom's superiority to the horrifically expensive promises for which we can trade our freedom.

So my point, if I have a single point here, is this. It is very important that we limit or even block the government takeover of health care (among other things). But we have a larger, more momentous ongoing task: to recognize our tyrants and depose them through the electoral process, and to find and put in their place better American leaders, who are capable of recognizing tyranny in our institutions and in themselves, who are philosophically equipped to hate it when they see it, and who will oppose it persistently, intelligently, and effectively wherever they detect it, irrespective of party.

You and I may not agree on the names, now or later. Do we at least agree on the mission?

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