A Nation of Men not Laws

One of the founding principles of the US is that it is to be a nation of laws, not men. The flaws of the European history of power emanating from royalty and then passing down to the nobility and, via personal preferment, to court courtiers was all too real to the founders.

Even during the colonial period royal governors were appointed by the king and laws were passed by a remote governing body with constrained powers. The problems with the major Christian religions were also well known. The mechanism for religious advancement was opaque and depended to a great extent upon the preferences of the church leaders. Obligating government officials to acknowledge the authority of religion would make them part of this personalized form of administration.

So, in contrast to England, a written constitution was decided on, and this model was also adopted by all the states. After a short period of trial and error, the various mechanisms of government were stabilized. This included the role of the courts to review legislation and the creation of a professional civil service.

The political parties fought against a totally professional civil service since they needed political positions available as rewards for their supporters. The Supreme Court sanctioned this in an historic ruling. In practice what it meant was that the top people in a given department would be political appointees, but everyone below the assistant secretary (or similar) would be career civil servants who got their positions by merit.

Whether the top appointments were made on the basis of political payoffs or other factors was up to the discretion of the president. Clinton, for example, chose to reward backers, but tried to pick those with prior expertise in their assignments. True paybacks were mostly left to ambassadors as in every other administration. (The idea being wealthy donors throw the embassy parties and the state department employees keep the operation running).

Similarly, in the judiciary, judges were picked after being screened by a group whose task it was to find those with an outstanding reputation, and who appeared to be fair and not too partisan. They were subsequently vetted by the ABA.

During the current administration we have seen this philosophy turned on its head as much as possible. The principle requirement is political philosophy and demonstrated party loyalty. Expertise is not a criteria. Businessmen run the treasury, horse show organizers run disaster relief, ex-Young Republicans are given key White house jobs.

In the judiciary the opinions of the judges are considered instead of how well they have applied legal scholarship. The vetting by the independent ABA has been abolished. From a technical point of view this has turned out to be a disaster. There is no need to recount the number of problems that have resulted from having people who are either incompetent, or who regard ideology as more important than results.

Since the right has adopted this method of selection, they assume that it must have been in use by prior administrations as well. So when a judicial ruling is made that they don't agree with the first thing they do is to attack the person making ruling. They cannot see how one could decide something on the basis of their understanding of the law and how it must be applied. They picked partisan judges, just to avoid such an outcome and assume everyone else operates the same way.

Notice how the recent Supreme Court appointments all hinged on their judicial "philosophy", not on how well they had performed in prior positions. Even the opponents of the appointments assumed that the personal attitudes of the man were what needed to be examined. Discussions of upcoming court cases also are framed on the justice's personalities or inclinations, and not on the legal merits of the cases.

We have gone from a system where laws, not men, were supposed to be the guiding principle to one where both sides now see every action from the point of view of those having responsibility. This has extended beyond executive departments and the federal judiciary and has seeped into the legislative process as well.

It has always been the case that the staffs of legislators would be drawn from those sharing a similar outlook to the elected official, but now appointments are made as political paybacks to large donors as represented by lobbyists. These political operatives continue to help their sponsor's interests even though they are now government employees. Many shift back to private industry after some years in government. Even congressmen are now expected to move into areas where they were influencing legislation after their term of office. It thus, becomes important to these business interests who the government official is, rather than what their duties are. It is, of course, better to have a close relationship with a key player on a relevant congressional committee, but which member is more often chosen by their web of contacts and associations.

During the last days of the French monarchy the only way to get things done was by the personal intervention of those close to the king. A whole cottage industry of power brokers and influence peddlers arose. Even the king's mistresses became part of the intrigues. The results were the breakdown of normal civil society and its replacement by cronyism, favoritism and corruption. The spendthrift ways of the royal court caused the depletion of the treasury and the imposition of an unfair tax system.

When it went too far the entire system collapsed in the French Revolution. Long before this happened, however, France had ceased to be a significant world power as preferment replaced policy. Is the US in danger of a revolution? No. Is the US in danger of becoming ineffective in foreign policy, uncompetitive in manufacturing and scientific research, and unable to maintain its infrastructure? Just look around.

Moral:A democratic society must operate under the rule of law.

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Copyright © 2006 Robert D Feinman
Feel free to use the ideas, but the words are mine.