Democracy in Decline: The Subversion of Rule of Law
A friend recently wrote me to offer a sharp formulation of a distinction I have often written about myself. Regular readers know that I am fond of distinguishing between “democracy”—a political arrangement in which the demos, the people, rule—and “Our Democracy™,” a counterfeit or masquerade of democracy in which not the people but an elite nomenklatura rule. To an increasing extent, I believe, the United States is gradually subsisting into the latter, with all the political, social, and moral deformations that such anxious oligarchical arrangements entail.
True enough, the United States was never really a democracy—a form of government, as James Madison observed in Federalist 10, that tended to be “as short in its life as it is violent in its death.” Rather, the United States was, from the beginning, a democratic republic. Ultimately, the people were sovereign—that was the point of the phrase “We the People.” But their sovereignty was mediated through the agency of representation. The point of my distinction, however, still holds. The Founders bequeathed us a democratic republic and a Constitution whose chief purpose was to define and limit the power of government. Their modern successors have inhabited that political dispensation, slyly perverting and emptying it out of its original signification while maintaining the names and rituals of the original.
If you believe that the words “perverting” and “emptying it out of its original signification” are extreme, I invite you to contemplate the tenth amendment to the U.S. Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” To what extent is the letter or spirit of that instruction followed today?
The answer is: not at all. What was originally a document designed to limit government and protect people from its coercive intervention has mutated into a reliquary containing the desiccated remains of a once-potent, now mostly quaint and antique admonition.
Which brings me back to my friend’s crisply formulated distinction. There are, he noted, two forms of law: rule of law and rule by law. The first, he wrote, the rule of law, “is based upon neutral rules that are in place and applicable to all without regard to political belief or status, economic class, religion, etc. That is or was the aim of classical liberal politics—to erect a limited system of laws applied to all as a foundation for liberty.” That’s precisely what the Framers intended to bequeath us.
The alternative, rule by law, describes the antithesis. Indeed, it is
a system of rules applied at the discretion of ruling elites, who exempt themselves and allies from those rules, and apply them to others on an arbitrary basis. The rule by law comes into play when the state has evolved into a large-scale enterprise and has formulated laws in scale and number that are capture citizens in a web of rules. In that circumstance, it is not difficulty to enforce rule by law, where the laws or rules can be applied politically or arbitrarily.


