It’s Not Democracy That’s Dying; It’s Our Anti-Democratic Safeguards

Everyone is worried about “our democracy.” The left believes Donald Trump is trying to destroy it by challenging the results of the 2020 presidential election, aided by state legislatures controlled by his party passing stricter voter identification and ballot verification laws.

The right believes the Democratic Party is trying to destroy democracy by stuffing ballot boxes with illegitimate votes and flooding the country with undocumented immigrants who will either vote illegally themselves or have children who will eventually vote Democrat.

They all agree on one thing. Our democracy is in peril, and it must be saved.

Certainly, if there was enough fraud to change the results of any election, that is a problem. But what is tearing our society apart is not destruction of our democracy, because we don’t live in a democracy. And it isn’t just a republic, either. All “republic” means is that the people elect representatives to perform the various functions of government. North Korea is a republic; China is a republic. Neither are countries in which most Americans would want to live.

No, what made the American system better was not its democratic elections or republican form but it’s anti-democratic safeguards. The Constitution allows for representatives to be elected democratically – although only the House of Representatives was originally by direct vote of the people – but the rest of its provisions are there to protect us from democracy.

The bicameral legislature, presidential veto, separation of powers, and strictly enumerated powers are all intended to protect individuals from what democratically elected representatives might do.

The Bill of Rights is completely anti-democratic. Its articles say the democratically elected Congress shall make no law regarding the establishment of religion, shall not infringe the rights of free speech, or to bear arms. They say the democratically elected executive shall not conduct unreasonable searches, punish you without due process, etc.

The key to all the so-called “checks and balances” in the Constitution is they set up adversarial processes that must occur before power is exercised.  

Older readers may remember the Schoolhouse Rock cartoon, “I’m Just a Bill.” It attempts to educate youngsters on all the hoops a bill must jump through to become a law. While clever, the problem with its tone is the strong implication that the bill failing to become a law is regrettable, even tragic.

That the Constitution makes it difficult to pass a law is a feature, not a bug.

The popular sentiment that Congress “isn’t getting anything done” springs from the same misconception. When a bill is proposed and subsequently either dies in committee or fails to pass a general vote, Congress did indeed “get something done.” It vetted the proposition to require or prohibit some human activity by force and (usually wisely) declined to do so. That’s as much “getting something done” as passing the bill – and usually ages better.

Yet, while still professing fidelity to the Constitution, federal legislators have passed many laws allowing the executive branch to bypass this entire process and effectively legislate by fiat. If you’re wondering how President Trump could levy a tariff (a tax) on imports without a law passed by Congress, it’s because Congress passed the Trade Act of 1974, effectively allowing the president to exercise this power exclusively delegated to Congress if, in his sole judgment, “any existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States.”

The National Emergencies Act similarly transfers legislative power to the president by his merely declaring an emergency to exist. Worse yet, the “state of emergency” doesn’t end until the president declares it is over or Congress passes a joint resolution to end it – which can be vetoed by the president!

As I’ve written before, the entire New Deal constitutes an unconstitutional transfer of power from the legislature to the executive by allowing regulatory agencies to not only write their own regulations (legislate) but often usurp the judicial power by deciding disputes in their own administrative courts.

That’s why President Biden can mandate vaccines for businesses with over one hundred employees without new legislation from Congress. He can simply have OSHA require it through “regulation” – a euphemism for the executive branch legislating.

Needless to say, Congress cannot assign powers exclusively delegated to itself to another branch of the government, no matter how many legal or logical acrobatics Supreme Court justices have performed saying they can. There would be no need for Article V of the Constitution if Congress could merely override the separation of powers or other constitutional constraints with legislation. And the Constitution certainly provides for emergencies. There is no emergency more serious than war, for which the Constitution clearly provides.

Yet, no one blinks an eye when a president decides to bomb Syria (name one that hasn’t lately) without a declaration of war and in violation of the War Powers Resolution which specifically limits the president’s power to “introduce the United States Armed Forces into hostilities” to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” [emphasis added]

The list of violations of the Constitution’s limitations on power and separation of those powers it does grant is too long to cover here. But they all have one thing in common: they eliminate adversarial processes capable of overriding the will of majority – of overriding democracy – to preserve liberty.

Everyone recognizes the political climate in the United States is toxic and many legitimately fear it will become violent. This isn’t because democracy is diminished. Rather, it is because the people of these states have tolerated the erosion or elimination of most restraints on democracy built into our Constitution.

My own view of the Constitution is much closer to Lysander Spooner’s than Madison’s or Jefferson’s. But as I said four years ago, the limits it places on federal power, especially in terms of the separation of powers between the federal and state governments, could prove useful in easing the pressure before the boiler explodes. While peaceful, full-scale secession from both the federal and state governments might be the philosophical ideal, it is much less likely than a “soft secession,” accomplished by simply enforcing the Constitution’s limits on federal government power.

That soft secession has already begun, although most of those seceding probably don’t realize they are doing so. Over half the states have nullified federal marijuana laws by passing state legislation legalizing their use for medical purposes, recreation, or both. Many blue state cities have declared themselves “sanctuary cities,” refusing to enforce federal immigration laws. 

Most recently, Texas passed a law prohibiting abortion once a fetal heart rate is detectable, or more accurately clarifying laws prohibiting abortion never taken off the books after Roe v. Wade. 

None of the federal laws or regulations in question are constitutional. They were all merely passed by Congress or enacted by executive edict and then, in some cases, “discovered” to be constitutional by the Supreme Court. Madison himself said regulating immigration was a power “no where delegated” to the federal government. And whether one considers abortion healthcare or homicide, the federal government isn’t given power over either. 

Most people in red states have a visceral hatred for sanctuary cities, just as most in blue states hate the Texas abortion bill. And that’s just the point. These are matters that can only be dealt with locally. No supermajority of states ever has or ever will consent to the federal government imposing one policy in these areas over all the states.

The response to to Covid-19 has followed the trend. In 2020, there was an increasingly diverse policy response as the pandemic progressed, with some states imposing severe lockdowns and mask mandates while others imposed less severe restrictions or none at all. South Dakota led the way in refusing from the start to close businesses or issue stay-at-home orders, followed by Florida in September 2020 and Iowa and Texas in early 2021. 

As for President Biden’s vaccine mandate (announced but not yet written), Florida and Texas have already banned the mandates within their states, while South Dakota governor Kristi Noem took the most libertarian approach in neither mandating nor banning vaccine mandates for private businesses. Meanwhile, New York’s governor Kathy Hochul has ordered all healthcare workers in her state to get the vaccine and is prepared to call in National Guard personnel to replace those who don’t comply.

Many fear violent conflict resulting from state nullification of federal laws or regulations. But we haven’t seen that over nullification of marijuana prohibition and we wouldn’t likely see it when state governments take similar action on other issues. 

Rather than a recipe for violence, more widespread soft secession from the present, unconstitutional system would allow the two dominant political tribes to stand down from their current, confrontational posture. And it would allow the rest of us to at least “pick our poison” in terms of which less-than-ideal system we would prefer.

Most important, it would save us all from what we have now: democracy run amok.

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

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