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.

In one sense, what my friend describes here is the situation Tocqueville warned about in his famous paragraphs about “democratic despotism” in Democracy in America. How, Tocqueville asked, would despotism come to a modern democracy? It would not, as in despotisms of yore, tyrannize over the populace. Rather, it would enforce submission by promulgating conformity in a gentle, if smothering, way. And it would do this by casting over society an increasingly intricate network of rules and regulations that sap initiative. In Tocqueville’s famous image, the government becomes a vigilant shepherd and the people a flock of sheep.

Tocqueville understood the enervating dynamic of democratic despotism. But the actual behavior of the Committee that rules us—the government itself and the sprawling, onion-like knot of agencies that carry out the government’s will—show that Tocqueville underestimated the persistence and harshness of the tyrannical in his anatomy of this modern perversion of democracy.

If you doubt this, contemplate the treatment of modern enemies of the state, the January 6 protestors, for example, or the pro-life advocates who demonstrate against abortion, or the ex-Marine who is indicted for murder because he intervened to save his fellow subway riders from the attacks of a violent homeless man. When I tell you that the ex-Marine is white while the homeless man, who died after the Marine tackled him, is black, you have all the information you need to appreciate our modern two-tier justice system at work.

You saw the same thing on display last week when a horde of illegal immigrants jumped and savagely beat two New York City policemen. The incident was filmed, as was the aftermath. The perpetrators were arrested but quickly released. They made angry, obscene gestures at the recording cameras and fled to California in order to enjoy the largess provided to criminals by Governor Gavin Newsom. And of course there is the example of Donald Trump: possibly the man most harassed by our laughably named “Department of Justice” in the history of the Republic.

These are some of the many signs and portents that signal the guttering of the rule of law and its replacement: rule by law. It is an autumnal sign—a sign of civilization at the end of its tether. Is there any remediation, and going back? Yes, it’s possible. But if I were a betting man, I wouldn’t advise counting on it.