Posted: March 21, 2010
ometimes the most obvious derangements of our politics are staring us in the face but we don't see them. Take, for instance, the health care reform bill for which President Obama and the Democrats are forever lusting. Many people have protested it isn't really a reform bill, because reform implies improvement and this isn't an improvement.
But it isn't the "reform" part of the Democrats' health care bill (if they ever agree on one) that strikes me as most perverse. It's calling this voluminous monstrosity a bill. Can you have a bill, a single law, that is almost 3,000 pages long? In the old days, that would have constituted a whole code of laws. When our founders thought about law, they often thought along the lines of John Locke, who described law as a community's "settled standing rules, indifferent, and the same to all parties," emphasizing that to be legitimate a statute must be "received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies" between citizens.
This phonebook-sized law that would control a sixth of the U.S. economy cannot be a law by that definition. If you rummage through the text of, say, the House of Representatives' version of the bill, you find scores of places where power is delegated to administrative agencies and special boards, which are charged to fill the gaps in the written legislation by promulgating thousands, if not tens of thousands, of new pages of regulations that will then be applied to individual cases. Voters sometimes complain that legislators don't read the laws they enact. Why would they, in this case? You could read this leviathan until your eyeballs popped out and still not find any "settled, standing rules" or a meaning that is "indifferent, and the same to all parties."
In fact, that's the point of such promiscuous laws. They operate not by setting up fences to protect each man's liberty. They start not from equal rights but from equal (and often unequal) privileges, the favors or benefits that government may bestow on or withhold from its clients. The whole point is to empower government officials, usually unelected and unaccountable bureaucrats, to bless or curse your petitions as they see fit, guided, of course, by their expertness in a law so vast, so intricate, and so capricious that it could justify a hundred different outcomes in the same case. Faster than one might think, a government of equal laws turns into a regime of arbitrary privileges.
A "privilege" is literally a private law. When law ceases to be a common "standard of right and wrong" and a "common measure to decide all controversies," then the rule of law ceases to be republican and becomes despotic. Freedom itself ceases to be a right and becomes a gift, or the fruit of a corrupt bargain, because in such degraded regimes those who are close to and connected with the ruling class have special privileges.
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It was against the threat of such a despotism that proper and not so proper Bostonians threw the original Tea Party. The English East India Company was about to go bankrupt, and the British government bailed it out by passing the Tea Act of 1773, granting the Company's agents a monopoly on selling tea to Americans and filling the government's own coffers by taxing the sales. The Americans had already rejected this tax as unconstitutional in 1767, but it stayed on the books. Among the Company's agents in Massachusetts were the royal governor's two sons and a nephew. They didn't call it Chicago-style politics then, but the principles were the same.
Today's Tea Party movement sees a similar threat of despotism—of monopoly control of health care, corrupting bailouts, massive indebtedness, and the eclipse of constitutional rights—in the Obama Administration's policies. The Tea Party patriots may mistake the President's motives when they compare him to King George. But they are right to suspect in the very nature of modern liberalism and the modern state something hostile to the consent of the governed and to constitutional liberty. The republic will owe them a debt of gratitude if Obama's plans end up just as wet as George III's, floating in the salty tea pot of Boston Harbor.