The classical liberal philosophy expounded by John Locke and many of the American founders was a brilliant attempt to abolish government by the principle of “might makes right.” They wanted to convert government from an arbitrary force over the people into something based on the consent of the people, and dedicated to serving them.
Of the principles they proposed, one of the most important appears in the second chapter of Locke’s Second Treatise on Government.
Locke wrote, “I doubt not but it will be objected that it is unreasonable for men to be judges in their own cases.”
This idea is the basis for many arbitrary tyrannies. It is the fundamental “because I said so” behind so many self-serving decisions.
Locke and the American founders recognized that self-interest paired with the ability to give final rulings on the extent of one’s own power was a perverse incentive not to be tolerated. Locke noted that “self-love will make men partial to themselves and their friends.” The injustices that can stem from this simple, natural impulse, when given political power, are endless.
In the North Carolina ratification debates, James Iredell observed that the king of England “has great powers and prerogatives; and it is a constitutional maxim, that he can do no wrong.”
The Federal Farmer wrote that “men who govern will, in doubtful cases, construe laws and constitutions most favourably for encreasing their own powers.”
John Dickinson, in his famous “Letters from a Farmer in Pennsylvania,” opined that a small group could subtly violate the rights of many people, such that the violations “spread over the multitude in such a manner, as to touch individuals but slightly,” but that “the power or profit that arises from these violations, centering in few persons, is to them considerable.”
In short, the American founders were well aware of the problems caused by having one group judge its own actions, and they made a valiant attempt to minimize the chance that any group would have such power in the new government they were building.
They were aware of the problem because they had just escaped the rule of Britain, in which the ability of the king and parliament to judge the extent of their own powers had been a crucial factor in the lead-up to the War for Independence. Two significant examples are the Declaratory Act, in which Britain asserted its power over the colonies “in all cases whatsoever,” and the use by British officers of writs of assistance–basically, general warrants that officers could write themselves, authorizing themselves to search whatever they judged needed searching.
The American founders tried to prevent such arbitrary power from being wielded by their new government.
The original structure of the federal government, with three branches, each having the power to check the others, was one part of this attempt. The idea seems to have been that members of each branch would guard their powers greedily, and this would prevent or at least slow the tendency of power to accumulate more power for itself.
However, it didn’t take long for the new government to fail to uphold this simple principle.
Perhaps the first major failing was the passage of the Sedition Act in 1798. The act made it illegal for any person to “write, print, utter, or publish… any false, scandalous, and malicious writing or writings against the government of the United States.” The Sedition Act originated in the Senate and was passed by Congress, in clear black-letter violation of the first amendment. In short, the government declared for itself a power to examine any and all writings and utterances and decide for itself whether any of them were actionable, by its own standards.
Had the Sedition Act passed just a few years later, it might have become a major Supreme Court case. However, that leads us to the next major way that the federal government failed the principle that no man or body be its own judge: Marbury v. Madison.
This 1803 Supreme Court opinion penned by John Marshall was interpreted to create an exclusive power of judicial review. In time, people took this opinion to mean that the Supreme Court was the final authority on the meaning of the Constitution. Thus, a part of the federal government became the final arbiter of the powers of the federal government–exactly the situation Locke warned us against!
This is in direct contradiction to a basic understanding of contracts and in opposition to the common-sense understanding at the time of ratification. For instance, James Madison noted in 1800 that “the states then being the parties to the constitutional compact, …it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated.”
Basically, it makes no sense for the body created by a compact to have more power than the original parties to the compact.
The ideal held by many in the founding generation was a complex and interlocking system of authorities with no group standing in exclusive judgment of itself. The Supreme Court would arbitrate disputes between the states. The states would judge the powers of the federal government. The people would determine the powers and policies of each state. As Madison also said in The Federalist No. 46, “the ultimate authority… resides in the people alone.”
Where did Marbury v. Madison get us? It got us into a situation where the powers of the federal government are constantly expanding, and the feds tell us that they will make the decisions as to what powers they have! The Supreme Court gives cover to the power-hungry executive branch by declaring its acts constitutional in most cases.
It has resulted, step by step, in travesties like Wickard v. Filburn, in which the Supreme Court ruled that the federal government can regulate a man growing crops on his own land for his own consumption because the Constitution authorizes them to “regulate interstate commerce.” This tortured interpretation and others like it lead to unlimited federal tyranny.
Another interesting case of the government judging the correctness of its own actions comes from the efforts of the legislative branch to hand off its powers to the much less accountable executive branch bureaucracy. The ability of Congress to create executive agencies to produce regulations with the force of law is questionable enough, but it’s actually worse than that.
The courts’ policy of Chevron deference states that the courts should defer to agency interpretations of statutes. These unaccountable executive agencies are given the ability to create, interpret, and execute “law,” and the federal courts are largely on board with protecting these absurd power grabs, with the protection provided by mealy-mouthed assurances that they’ll strike down anything that’s too bad!
Is it any surprise that they usually find these interpretations acceptable as long as the public doesn’t threaten to riot?
Is it any surprise that under this cover, agencies like the BATFE seek to redefine terms like “firearm” to further their goal of civilian disarmament?
Right now, the federal government is arguing in favor of its ability to use intimidation tactics to enlist third-party companies as censors by proxy.
The bottom line is the ability of any person or body of persons to be the judges of their own power is one of the most dangerous forces for tyranny imaginable. It creates a positive feedback loop of power-grabbing, leading eventually to totalitarianism. Locke and the American founders warned us about this ultimate perverse incentive.
The goal of the classical liberal revolution of the 17th and 18th centuries was to abolish, as much as possible, rule by “might makes right.” Bodies that have the power to judge their own powers are simply illegitimate under this principle, and the people have the absolute right to demand that these rogue institutions, at a bare minimum, give up these powers and return to their agreed-upon limits.
As things stand now, this would mean a return to the understanding that the states are the final judges of the meaning of the Constitution, an end to executive agencies’ ability to make rules with the force of law and an end to the courts’ deference to these agencies’ tortured readings of the law.
The founding principles of (reasonably) good government demand no less.
He covers political and economic topics at
https://marginalnonhermit.com
He also writes fiction at
https://rnkfiction.blogspot.com
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