Half Past the Month: We’re All Rechtsstaat Now

April 15, 2015

“In the abstract, we may envision an Olympian perfection of perfect beings in Washington doing the business of their employers, the people, but any of us who has ever been at a zoning meeting with our property at stake is aware of the urge to cut through all the pernicious bullshit and go straight to firearms.” — the playwright David Mamet

WHAT DO WE DO when the citizenry simply isn’t good enough, when administrators, planners and even our democratic representatives find typical Hoosiers . . . well, not up to snuff?

The pages of the state’s largest newspaper fairly drip with that sentiment. The editors pine for a higher-grade citizenry, one of which officialdom could be proud. Its columnists provide daily lectures on citizen self-improvement. They make certain not to overlook any failings in social tolerance or material fairness.

The upcoming issue of The Indiana Policy Review attests to this dissatisfaction, beginning with the case of Charlestown, Indiana, where planners designated the residents of an entire neighborhood inadequate and in need of replacement.

We wish the examples would end right here, with the immaturity of media-think or a crackpot zoning board. They don’t — not by a long shot. Indeed, it is difficult to find a public official in Indiana who operates fully within the framework of the founding documents.

That would be an official neither abiding nor participating in what Dr. Philip Hamburger, a Columbia University legal scholar and historian, identifies as “unlawful administrative law.” He reminds us in his latest book that it is forbidden in our constitutional republic for legislatures to delegate to unelected officials the writing of rules that legally bind citizens. Myron Magnet, reviewing for the City Journal, homes in on the point:

“The Constitution lodges all legislative power in Congress, which therefore cannot delegate its lawmaking function. So it’s forbidden for Congress to pass a law creating an executive branch agency that writes rules legally binding on citizens — for example, to set up an agency charged with making a clean environment and then to let it make rules with the force of law to accomplish that end as it sees fit. ‘The power of the legislative,’ as the Founding Fathers’ tutelary political philosopher John Locke wrote, is ‘only to make laws and not to make legislators.’ And if Congress can’t delegate the legislative power that the Constitution gives it, it certainly cannot delegate power that the Constitution doesn’t give it — namely, the power to hand out selective exemptions from its laws, which is what agencies do when they grant waivers.”

Proponents of this approach — a ruling here, a waiver there — can point to a long history of noble intent. We are told that it resembles the early 19th-century doctrine of Rechtsstaat, in which the function of the state was to protect the welfare of each individual in the community as he stands. This subtly differs from our system, in which the goal is to protect an individual’s right to pursue property, happiness, etc., wherever that might lead him.

The idea is that through trial and error, our officials will pull us along, ruling by ruling, interpretation by interpretation, to eventual civic perfection. “Soft despotism,” Dr. Hamburger calls it.

So we can feel grateful that Indiana doesn’t have “bad” officials — fascists, communists, mandarins and the like — pursuing the interests of a dictator, emperor or political party. Rather, we have “good” officials who look out for the welfare of each one of us, individually, to the best of human ability.

There is a downside, however, for a state concerned with low-paying jobs and a shrinking middle class. Dr. Hamburger puts it in the form of a question: “Why invest if a mere administrator, without much political or legal constraint, can later prohibit your investment? Why even enter a business if an administrator, without even adopting a regulation, can use an interpretation or waiver to give advantages to your competitors?”

Of especial concern, he cautions, is the involvement of the biggest companies and organizations “who conspire in the rule-making process and have armies of lawyers and lobbyists to romance the regulators and sometimes even write the regulations.” The Indiana Chamber of Commerce, the various economic-development districts and the Indiana State Teachers Association come to mind.

In any case, the result is a loss of “investment, wealth, innovation, experimentation and personal happiness,” the professor concludes.

We don’t feel as grateful as we did a moment ago.

— Craig Ladwig



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