The racial wealth gap has become a heated issue as part of the ongoing woke crusade, but rather than the economic elite, it is average, workaday White Americans who are the scapegoat. White millennials in particular—ironically given their role as some of the most vocal carriers of the woke torch—will be the primary bearers of this burden The explosion of anti-white identity politics over the past decade coincides with one of the worst economic crisis’ in modern history which has particularly impacted Millennials. Millennials now control just 4.2% of the nation’s wealth, and are 4 times poorer than Boomers were when they were 34. Those now graduating from college face grim job prospects while older millennials are still recovering from the last economic crisis. Rhetoric and policy aimed at depleting White Privilege can only make a bad thing worse for this floundering generations of whites—but it may just supply a moral veneer for their suffering.
Millennials have been hard hit across racial-lines by recent economic downturns, but the media, academia, and powerful corporate interests persist in focusing on the racial dimension of inequality. JP Morgan Chase, for example, proposes spending $30 Billion to solve the racial wealth gap, with a significant portion of that granting home loans to African Americans and Latinos. The bank’s CEO, Jamie Dimon, who is of the Baby Boomer generation, has taken this cause as an opportunity to virtue signal, professing that “Systemic racism is a tragic part of America’s history,” and that “It’s long past time that society addresses racial inequities in a more tangible, meaningful way.” The last foreclosure crisis demonstrated where these policies could well lead: to another economic bubble-burst in the housing sector, spurred by overzealous loan-granting. Meanwhile, Millennials across racial lines are unable to achieve security at the very age that is crucial for starting families and building up assets. 17% of Millennials state they will further delay starting a family due to Covid-19 and the economic aftermath of these policies could very well end up having an impact on the future of family formation.
This election, voters in my native state of California voted upon initiatives that presented opportunities for age and race-based favoritism. California is worth focusing on here as in many cultural and political matter it is a bellwether for where the rest of the country may be heading. The most notable piece of proposed “woke” California legislature was Prop 16 which would have ended a previous ban on affirmative action in higher education, jobs, and government contracts. Prop 16 was mercifully defeated by a diverse and democratic leaning electorate but bankrolled by billionaire donors, most of whom were White Boomers. When looking at the statistics, White undergraduate enrollment in the UC system has declined from 31% in 2010 to just 21% in 2019. Whites are currently estimated at 36.6% of California’s population and prop 16 was expected to reduce both White and Asian enrollment. One must ask: when will whites be underrepresented enough to right the wrongs of history? And why should it be the Millennial generation and below that suffers the most?
Even the conservative Howard Jarvis Tax Payer Association–the architect of the original Prop 13—oppose this measure on the grounds that it does not so much eliminate a tax burden, as push it into the future. This future tax burden will in fact be even more severe. As Howard Jarvis spokeswoman Susan Shelley said to the LA Times : “It’s a billion-dollar tax increase on California families.” Meanwhile, on the supposedly progressive side, The California Democratic Party did in fact endorse Prop 19 as did Governor Newsom.
Perhaps there is no better encapsulation of the “progressive” California Boomer mentality—no huger middle-finger to White Millennial citizens of California– than the significant minority of voters who did in fact follow the California Democratic Party’s recommendation by voting “yes” on both propositions 16 and 19. The California counties that voted yes on both measures are those which constitute the wealthiest sections of the Bay area: Marin, San Francisco, San Mateo, Santa Cruz, and Alameda Counties. These are some of the wealthiest counties in the Country and are known for their extreme nimby restrictions on new housing which make it difficult for Millennials to get a foothold. Ironically, many majority Latino counties in the Central Valley rejected both those measures.
As the election stands it looks like Joe Biden will be our next president and there is strong symbolism behind the image of a frail, old, White man, long privileged and powerful, grandfathering in Kamala Harris, a power hungry woman of color who also happens to be the favorite of Wall Street and Silicon Valley, ushering in a new woke era in American history.
Joe Biden’s initial primary support was largely a coalition of Baby Boomers and African-Americans who helped him defeat Bernie Sanders. To a large extent, it would seem, Biden had the upper hand over Bernie with these groups because Senior Citizens and African Americans already benefit from the kind of specialized government programs that Bernie promised to institute. With a more color-blind economic-focused agenda that promised a social safety net for all, Bernie appealed to many younger Whites struggling with student loan debt, and with a generally uncertain view of their economic future. In 2016 the slur Bernie Bros was used by the Democratic establishment to deride young Bernie supporters as racist, misogynistic, and having middle class entitlement. In 2020, however, Bernie shifted his message towards woke politics and after his defeat put his support behind Joe Biden who fails to provide any positive vision of a better future for America’s youth.
The GOP really isn’t much better. Despite Trump’s reputation as both a bigot and the leader of new populist nationalist movement his re-election agenda and rhetoric were fairly standard GOP, with tax cuts, deregulation, and special race based government packages, e.g. a Platinum Plan for African Americans and an American Dream plan for Latinos. Trump did succeed in winning over more non-White voters this cycle, but his greatest electoral weakness was in the upper Midwest where he especially lost among White voters in those crucial swing state including many of the original Obama to Trump voters he was able to win over in 2016 with a more populist and middle class focused message.
The reality of politics is that groups that organize for their group interest will have greater clout in the political process. This applies to both senior citizens, minority interest groups, and obviously corporate interests but White Millennials were brought up with individualistic or universalist values and view organizing for their own interest as an alien concept, or as pure evil if the “whiteness” is emphasized.
We will likely see the continuation of woke austerity combined with a more draconian cancel culture in years ahead. Besides affirmative action, younger workers without long work histories on their resumes will be especially vulnerable to losing their job over having the wrong political opinions.
Woke policies are a way for those in power to virtue signal and it’s much easier for major institutions to chose select and favored groups than to secure the economic future for a middle class. Many well-off liberal boomers feel guilty about their own prosperity being a product of White privilege and systematic racism but rather than making personal sacrifices, it is much easier to just pass on the burden to future generations. In the case of many wealthy Boomers, their wealth is such that their immediate offspring will be able to thrive come what may, and their me-generation individualism precludes concern for their genetic lineage past this short term.
In California there is an unspoken dynamic in which well-off, White, liberal boomers signal their loyalty to the woke cause by putting a BLM sign in their yard and are thus able enjoy the rest of their golden years, self-assured of their moral righteousness, all while the policies and rhetoric they have supported have ensured that their descendant’s quality of life will decline for generations.
The political culture that evolved out of the great prosperity of the latter half of the 20th Century lacks any concept of a birthright for future generations—any concept that future generations are entitled to reap the benefits of the accomplishments and sacrifices of their forbearers. Much the opposite, this political culture insists that future generations must sacrifice for the sins of their ancestors—quite possibly more than they can afford to lose. In a future with increased scarcity and austerity, younger Whites will bare the brunt of these policies. Long term these trends are not sustainable, and we will likely see a continued rise in populism as well as an increase in those engaging in identity politics and identity-based patronage networks. It will become increasingly clear that anyone who wants to thrive must engage in these identity politics and patronage—even whites—and the culture of identity politics will become less idealistic and more focused on group survival. This is hardly the multicultural harmony Boomers once dreamt of, but it may move us all away from the pernicious individualist values that got us into this predicament.
Political wisdom, dearly bought by the bitter experience of generations, is often lost through the gradual change in the meaning of the words which express its maxims. Though the phrases themselves may continue to receive lip service, they are slowly denuded of their original significance until they are dropped as empty and commonplace. Finally, an ideal for which people have passionately fought in the past falls into oblivion because it lacks a generally understood name. If the history of political concepts is in general of interest only to the specialist, in such situations there is often no other way of discovering what is happening in our time than to go back to the source in order to recover the original meaning of the debased verbal coin which we still use. Today this is certainly true of the conception of the Rule of Law which stood for the Englishman’s ideal of liberty, but which seems now to have lost both its meaning and its appeal.
There can be little doubt about the source from which the Englishmen of the late Tudor and early Stuart period derived their new political ideal for which their sons fought in the 17th century; it was the rediscovery of the political philosophy of ancient Greece and Rome which, as Thomas Hobbes complained, inspired the new enthusiasm for liberty. Yet if we ask precisely what were the features in the teaching of the ancients which had that great appeal, the answer of modern scholarship is none too clear. We need not take seriously the fashionable allegation that personal freedom did not exist in ancient Athens: whatever may have been true of the degenerate democracy against which Plato reacted, it certainly was not true of those Athenians whom, at the moment of supreme danger during the Sicilian expedition, their general reminded above all that they were fighting for a country in which they had “unfettered discretion to live as they pleased.” But wherein did this freedom of the “freest of the free countries,” as Nicias called it on the same occasion, appear to consist – both to the Greeks themselves and to the Elizabethans whose imagination it fired?
I suggest the answer lies in part in a Greek word which the Elizabethans borrowed from the Greeks but which has since gone into disuse; its history, both in ancient Greece and later, provides a curious lesson. Isonomia, which appears in 1598 in John Florio’s World of Wordes as an Italian word meaning “equalitie of lawes to all manner of persons,” two years later, in its Englished form “isonomy,” is already freely used by Philemon Holland in his translation of Livy to render the description of a state of equal laws for all and of responsibility of the magistrates. It continued to be used frequently throughout the 17th century, and “equality before the law,” “government of law,” and “rule of law,” all seem to be later renderings of the concept earlier described by the Greek term.
Equal Laws for All
The history of the word in ancient Greek is itself instructive. It was a very old term which had preceded demokratia as the name of a political ideal. To Herodotus it was “the most beautiful of all names” for a political order. The demand for equal laws for all which it expressed was originally aimed against tyranny, but later came to he accepted as a general principle from which the demand for democracy was derived. After democracy had been achieved, the term continued to be used as a justification and ‘later, as one scholar suggests, perhaps as a disguise of the true character of democracy: because democratic government soon proceeded to destroy that very equality before the law from which it derived its justification. The Greeks fully understood that the two concepts, although related, did not mean the same thing. Thucydides speaks without hesitation of an “isonomic oligarchy,” and later we find isonomia used by Plato quite deliberately in contrast to, rather than in vindication of, democracy.
In the light of this development the celebrated passages in Aristotle’s Politics in which he discusses the different kinds of democracy, even though he no longer uses the term isonomia, read like a defense of this old ideal. Readers will probably remember how he stresses that “it is more proper that law should govern than anyone of the citizens,” that the persons holding supreme power “should be appointed only guardians and servants of the law,” and particularly how he condemns the kind of government under which “the people govern and not the law.” Such a government, according to him, cannot be regarded as a free state: “for when the government is not in the laws, then there is no free state, for the law ought to be supreme over all things”; he even contends that “any such establishment which centers all power in the votes of the people can not, properly speaking, be called a democracy, for their decrees can not be general in their extent.” Together with the equally famous passage in the Rhetorics, in which he argues that “it is of great moment that well-drawn laws should themselves define all the points they can and leave as few as may be for the decision of the judges,” this provides a fairly coherent doctrine of government by law.
How much all this meant to the Athenians is shown by the account given by Demosthenes of a law introduced by an Athenian under which “it should not be lawful to propose a law affecting any one individual, unless the same applied to all Athenians,” because he was of the opinion that, “as every citizen has an equal share in civil rights, so everybody should have an equal share in the laws.” Although, like Aristotle, Demosthenes no longer uses the term isonomia, the statement is little more than a paraphrase of the old concept.
17th-Century Rediscovery
A characteristic dispute between Hobbes and Harrington, from which, I believe, the modern use of the “government by laws and not by men” derives, indicates how alive these views of the ancient philosophers were to the political thinkers of the 17th century. Hobbes had described it as “just another error of Aristotle’s politics that in a well-ordered commonwealth not men should govern but the law.” Harrington countered that the “art whereby a civil society is instituted and preserved upon the foundation of common right or interest” is “to follow Aristotle and Livy … the empire of laws, not of men.”
To the 17th-century Englishmen, it seems, the Latin authors, particularly Livy, Cicero, and Tacitus, became increasingly the more important sources of political philosophy. But, even if they did not go to Holland’s translation of Livy where they would have found the word, it was still the Greek ideal of isonomia which they met at all the crucial points. Cicero’s Omnes legum servi sumus ut liberi esse possumus [we are all servants of the laws in order that we may be free] (repeated later, almost word for word, by Voltaire, Montesquieu, and Kant) is perhaps the most concise expression of the ideal of freedom under the law. During the classical period of the Roman Law, it was once more understood that there was no real conflict between freedom and the law, their generality, certainty, and the restrictions they placed on the discretion of the authority, which was the essential condition of freedom. This condition lasted until the strict law (ius strictum) was progressively abandoned in the interest of a new social policy. As a distinguished student of Roman Law, F. Pringsheim, has described this process ‘which started under the Emperor Constantine:
The absolute empire proclaimed together with the principle of equity the authority of the imperial will unfettered by the barrier of law. Justinian with his learned professors brought this process to its conclusion.
Struggle for Economic Freedom
When it comes to show what the Englishmen of the seventeenth and eighteenth centuries made of the classical tradition they had rediscovered, any brief account must inevitably consist mainly of quotations. But many of the most telling and instructive expressions of the central doctrine as it developed are less well known than they deserve. Nor is it generally remembered today that the decisive struggle between King and Parliament which led to the recognition and elaboration of the Rule of Law was fought mainly over the kind of economic issues which are again the center of controversy today. To the 19th-century historians the measures of James I and Charles I which produced the conflict seemed antiquated abuses without topical interest. Today, some of these disputes have an extraordinarily familiar ring. (In 1628 Charles I refrained from nationalizing coal only when it was pointed out to him that it might cause a rebellion!)
Throughout the period it was the demand for equal laws for all citizens by which Parliament opposed the King’s efforts to regulate economic life. Men then seem to have understood better than they do today that the control of production always means the creation of privilege, of giving permission to Peter to do what Paul is not allowed to do. The first great statement of the principle of the Rule of Law, of certain and equal laws for all and of the limitation of administrative discretion, is contained in the Petition of Grievances of 1610; it was caused by new regulations for building in London and the prohibition of the making of starch from wheat which the King had made. On this occasion the House of Commons pleaded:
Among many other points of happiness and freedom which Your Majesty’s subjects of this kingdom have enjoyed under your royal progenitors, Kings and Queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of law, which giveth both to the head and the members that which of right belongeth to them, and not by any uncertain and arbitrary form of government…. Out of this root hath grown the indisputable right of the people of this kingdom, not to be subject to any punishment that shall extend their lives, lands, bodies, or goods, other than such as are ordained by the common law of this land, or the statutes made by their common consent in Parliament.
The further development of what contemporary Socialist lawyers have contemptuously dismissed as the Whig doctrine of the Rule of Law was closely connected with the fight against government-conferred monopoly and particularly with the discussion around the Statute of Monopolies of 1624. It was mainly in this connection that that great source of Whig doctrine, Sir Edward Coke, developed his interpretation of Magna Carta which led him to declare (in his second Institutes):
If a grant be made to any man, to have the sole making of cards or the sole dealing with any other trade, that grant is against the liberty and freedom of the subject … and consequently against this great charter.
We have already noticed the characteristic positions taken on the critical point of executive discretion by Hobbes and Harrington respectively. We are not interested here in tracing the further steps in the development of the doctrine and shall pass over even its classical exposition by John Locke, except for the rarely noticed modern justification which he gives it. Its aim is to him what contemporary writers have called the “taming of power”:
Laws made and rules set … to limit the power and moderate the dominion of every part and member of society.
The form in which the doctrine became the common property of an Englishmen was determined, however, as is probably always true in such cases, more by the historians who presented the achievements of the revolution to later generations than by the writings of the political theorists. Thus, if we want to know what the tradition in question meant to the Englishman of the late eighteenth or early 19th century, we can hardly do better than turn to David Hume’s History of England which indeed is to a large extent an interpretation of political progress from “government of will” to “government of law.” There is particularly one passage, referring to the abolition of the Star Chamber in 1641, which shows what he regarded as the chief significance of the constitutional developments of the 17th century:
No government, at that time, appeared in the world, nor is perhaps found in the records of any history, which subsisted without a mixture of some arbitrary authority, committed to some magistrate; and it might reasonably, beforehand, appear doubtful whether human society could ever arrive at that state of perfection, as to support itself with no other control, than the general and rigid maxims of law and equity. But the Parliament justly thought that the King was too eminent a magistrate to be trusted with discretionary power, which he might so easily turn to the destruction of liberty. And in the event it has been found that, though some inconveniencies arise from the maxim of adhering strictly to law, yet ,the advantages so much overbalance them, as should render the English forever grateful to the memory of their ancestors who, after repeated contests, at last established that noble principle.
Later, of course, this Whig doctrine found its classic expression in many familiar passages of Edmund Burke. But if we want a more precise statement of its content we have to turn to some of his lesser contemporaries. A characteristic statement which has been attributed to Sir Philip Francis (but which probably occurs in the Junius letters) is the following:
The government of England is a government of law. We betray ourselves, we contradict the spirit of our laws, and we shake the whole system of English jurisprudence, whenever we entrust a discretionary power over the life, liberty, or fortune of the subject to any man, or set of men, whatsoever, on the presumption that it will not be abused.
The fullest account of the rationale of the whole doctrine which I know occurs, however, in the chapter “Of the Administration of Justice” in Archdeacon Paley’s Principles of Moral and Political Philosophy:
The first maxim of a free state is, that the laws be made by one set of men, and administered by another; in other words, that the legislative and the judicial character be kept separate. When these offices are united in the same person or assembly, particular laws are made for particular cases, springing oftentimes from partial motives, and directed to private ends: whilst they are kept separate, general laws are made by one body of men, without forseeing whom they will affect; and, when made, must be applied by the other, let them affect whom they will….
Parliament knows not the individuals upon whom its acts will operate: it has no case or parties before it: no private designs to serve: consequently, its resolutions will be suggested by the consideration of universal effects and tendencies, which always produce impartial and commonly advantageous regulations.
Here, I suggest, we have nearly all the elements which together produce the complex doctrine which the 19th century took for granted under the name of the Rule of Law. The main point is that, in the use of its coercive powers, the discretion of the authorities should be so strictly bound by laws laid down beforehand that the individual can foresee with fair certainty how these powers will be used in particular instances; and that the laws themselves are truly general and create no privileges for class or person because they are made in view of their long-run effects and therefore in necessary ignorance of who will be the particular individuals who will be benefited or harmed by them. That the law should be an instrument to be used by the individuals for their ends and not an instrument used upon the people by the legislators is the ultimate meaning of the Rule of Law.
Since this Rule of Law is a rule for the legislator, a rule about what the law ought to be, it can, of course, never be a rule of the positive law of any land. The legislator can never effectively limit his own powers. The rule is rather a meta-legal principle which can operate only through its action on public opinion. So long as it is generally believed in, it will keep legislation within the bounds of the Rule of Law. Once it ceases to be accepted or understood by public opinion, soon the law itself will be in conflict with the Rule of Law.
As the establishment of the Rule of Law in England was the outcome of the slow growth of public opinion, the result was neither systematic nor consistent. The theorizing about it was mainly left to foreigners who, in explaining English institutions to their compatriots, had to try to make explicit and to give the appearance of order to a set of seemingly irrational traditions which yet mysteriously secured to the Englishman a degree of liberty scarcely known on the Continent.
These efforts to embody into a definite program for reform what had been the result of historical growth at the same time could not but show that the English development had remained curiously incomplete. That English law should never have drawn such obvious conclusions from the general principle as formally to recognize the principle nulla poena sine lege, or to give to the citizen an effective remedy against wrongs done him by the state (as distinguished from its individual agents),or that English constitutional development should not have led to the provision of any built-in safeguards against the infringement of the Rule of Law by routine legislation, seemed curious anomalies to the Continental lawyers who wished to imitate the British model.
The demand for the establishment of the Rule of Law in the Continental countries also became to some extent the conscious aim of a political movement, which had never been the case in England. Indeed, for a time in France and for a somewhat longer period in Germany, this demand was the very heart of the liberal program. In France it reached its height during the July monarchy when Louis Philippe himself proclaimed it as a basic principle of his reign: “Liberty consists only in the rule of laws.” But neither the reign of Napoleon III nor the Third Republic provided a favorable atmosphere for the further growth of this tradition. And although France made some important contributions in adapting the English principle to a very different governmental structure, it was in Germany that the theoretical development was carried furthest. In the end it was the German conception of the Rechtsstaat which not only guided the liberal movements on the Continent but became characteristic of the European governmental systems as they existed until 1914.
This continental development is very instructive because there the efforts to establish the Rule of Law met from the very beginning conditions which arose in England only much later – the existence of a highly developed central administrative apparatus. This had grown up unfettered by the restrictions which the Rule of Law places on the discretionary use of coercion. Since these countries were not willing to dispense with its machinery, it was clear that the main problem was how to subject the administrative power to judicial control. It is a matter of comparative detail that in fact separate administrative courts were created to enforce the elaborate system evolved to restrain the administrative agencies. The main point is that the relations between these agencies and the citizen were systematically subjected to legal rules ultimately to be applied by a court of law. The German lawyers indeed, and with justice, regarded the creation of administrative courts as the crowning achievement of their efforts toward the Rechtsstaat. There could hardly have been a more grotesque and more harmful misjudgment of the Continental position by an eminent lawyer than A. V. Dicey’s well-known contention that the existence of a distinct administrative law was in conflict with the Rule of Law.
Limits to Coercion
The real flaw of the Continental system, which English observers sensed but did not understand, lay elsewhere. The great misfortune was that the completion of the Continental development turned on a point which to the general public inevitably appeared merely a minor legal technicality. To guide all administrative coercion by rigid rules of law was a task which could have been solved only after long experience. If the existing administrative agencies were to continue their functions, it was evidently necessary to allow them for a time certain limited spheres within which they could employ their coercive powers according to their discretion. With respect to this field the administrative courts were therefore given power to decide, not whether the action taken by an administrative agency was such as was prescribed by the law, but merely whether it had acted within the limits of its discretion. This provision proved to be the loophole through which, in Germany and France, the modern administrative state could grow up and progressively undermine the principle of the Rechtsstaat.
It cannot be maintained that this was an inevitable development. If the Rule of Law had been strictly observed, this might well have caused what David Hume had called “some inconveniences,” and might even substantially have delayed some desirable developments. Although the authorities must undoubtedly be given some discretion for such decisions as to destroy an owner’s cattle in order to stop the spreading of a contagious disease, to tear down houses to prevent the spreading of tire, or to enforce safety regulations for buildings, this need not be a discretion exempt from judicial review. The judge may want expert opinion to decide whether the particular measures were necessary or reasonable. There ought to be the further safeguard that the owners affected by such decision are entitled to full compensation for the sacrifice they are required to make in the interest of the community.
The important point is that the decision is derived from a general rule and not from particular preferences which the policy of the government follows at the moment. The machinery of government, so far as it uses coercion, still serves general and timeless purposes, not particular ends. It makes no distinction between particular people. The discretion conferred is a limited discretion in the sense that the agent is to carry out the sense of a general rule. That this rule cannot be made wholly explicit or precise is the result of human imperfection. That it is in principle, however, still a matter of applying a general rule is shown by the fact that an independent and impartial judge, who in no way represents the policy of the government of the day will be able to decide whether the action was or was not in accordance with the law.
No Permanent Achievement
The suspicion with which Dicey and other English and American lawyers viewed the Continental position was thus not unjustified, even though they had misunderstood the causes of the state of affairs which existed there. It was not the existence of an administrative law and of administrative courts which was in conflict with the Rule of Law, but the fact that the principle underlying these institutions had not been carried through to its conclusion. Even at the time when, in the later part of the last century, the ideal of the Rechtsstaat had gained its greatest influence, the more deliberate efforts made on the Continent had not really succeeded in putting it into actual practice as fully as had been the case in England. There still remained there, as an American observer (A. B. Lowell) then described it, much of the kind of power which “most Anglo-Saxons feel … is in its nature arbitrary land ought not to be extended further than is absolutely necessary.” And before the principle of the Rechtsstaat was completely realized and the remnants of the police state finally driven out, that old form of government began to reassert itself under the new name of Welfare State.
At the beginning of our century, the establishment of the Rule of Law appeared to most people one of the permanent achievements of Western civilization. Yet the process by which this tradition has been slowly undermined and eventually destroyed had even then been underway for nearly a generation. And today it is doubtful whether there is anywhere in Europe a man who can still boast that he need merely keep within the law to be wholly independent, in earning his livelihood, from the discretionary powers of arbitrary authority.
Socialist Inroads
The attack on the principles of the Rule of Law was part of the general movement away from liberalism which began about 1870. It came almost entirely from the intellectual leaders of the socialist movement. They directed their criticism against practically everyone of the principles which together make up the Rule of Law. But initially it was aimed mainly against the ideal of equality before the law. The socialists understood that if the state was to correct the unequal results which in a free society different gifts and different luck would bring to different people, these had to be treated unequally. As one of the most eminent legal theorists of Continental socialism, Anton Menger, explained in his Civil Law and the Propertyless Classes (1890):
By treating perfectly equally all citizens, without regard to their personal qualities and economic positions, and admitting unlimited competition between them, it was brought about that the production of goods was increased without limit, but also the poor and weak had only a small share in that increased output. The new economic and social legislation attempts therefore to protect the weak against the strong and to secure for them a moderate share in the good things of life. We know today that there is no greater injustice than to treat as equal what is in fact unequal.
A few years later, Anatole France was to give wide circulation to the similar ideas of his French socialist friends in the much quoted gibe about “the majestic equality of the laws, which forbids the rich as well as the poor to sleep under bridges, to beg in the streets, to steal bread.” Little did the countless well-meaning persons who have since repeated this phrase realize that they were giving currency to one of the cleverest attacks on the fundamental principles of liberal society.
The systematic campaign which during the last sixty years has been conducted against all the constituent parts of the tradition of the Rule of Law mostly took the form of alleging that the particular principle in question had never really been in force, that it was impossible or impracticable to achieve it, that it had no definite meaning, and, in the end, that it was not even desirable. It may well be true, of course, that none of these ideals can ever be completely realized. But, if it is generally held that the law ought to be certain, that legislation and jurisdiction ought to be separate functions, that the exercise of discretion in the use of coercive powers should be strictly limited and always subject to judicial control, etc., these ideals will be achieved to a high degree. Once they are represented as illusions and people cease to strive for their realization, their practical influence is bound to vanish rapidly. And this is precisely what has happened.
The attacks against those features of the Rule of Law were directly determined by the recognition that to observe them would prevent an effective control of economic life by the state. The economic planning which was to be the socialist means to economic justice would be impossible unless the state was able to direct people and their possessions to whatever task the exigencies of the moment seemed to require. This, of course, is the very opposite of the Rule of Law.
Concept of Justice Abandoned
At the same time, another and perhaps even more fundamental process helped to speed up that development. Jurisprudence abandoned all concern with those metalegal criteria by which the justice of a given law can alone be determined. For legal positivism the concrete will of the majority on a particular issue became the only criterion of justice applicable in a democracy. On this basis it became impossible even to argue about – or to persuade anybody of – the justice or injustice of a law. To the lawyer who regards himself as a mere technician intent upon implementing the popular will, there can be no problem beyond what is in fact the law. To him the question whether a law conforms to general principles of justice is simply meaningless. The concept of the Rechtsstaat, which originally had implied certain requirements about the character of the laws, thus came to mean no more than that everything the government did must be authorized by a law – even if only in the sense that the law said that the government could do as it pleased.
Years before Hitler came to power German legal scholars had pointed out that this complete emptying of the concept of the Rechtsstaat had reached a point where what remained no longer formed an obstacle to the creation of a totalitarian regime. Today it is widely recognized in Germany that this is exactly where that development led.
But if there is now a healthy reaction under way in German legal thinking, the state of British discussion on this crucial problem seems to be very much where it was in pre-Hitler Germany. The Rule of Law is generally represented as either meaningless or requiring no more than legality of all government action. According to Sir Ivor Jennings, the Rule of Law in its original sense, “is a rule of action for Whigs and may be ignored by others.” In its modern sense, he believes, it “is either common to all nations or does not exist.” In Professor W. A. Robson’s opinion it is possible to “distinguish ‘policy’ from ‘law’ only in theory” and “it is a misuse of language to say that an issue is ‘nonjusticiable’ merely because the adjudicating authority is free to determine the matter by the light of an unfettered discretion; and equally incorrect to say that an issue is ‘justiciable’ when there happens to be a clear rule of law available to be applied to it.” Professor W. Friedmann informs us that in Britain “the Rule of Law is whatever Parliament, as the supreme lawgiver, makes it” and that therefore, “the incompatibility of planning with the Rule of Law is a myth sustainable only by prejudice or ignorance.” Yet another member of the same group even went so far as to assert that the Rule of Law would still be in operation if the majority voted a dictator, say Hitler, into power: “the majority might be unwise, and it might be wicked, but the Rule of Law would prevail. For in a democracy right is what the majority make it to be.”
In one of the most recent treatises on English jurisprudence it is contended that in the sense in which the Rule of Law has been represented in the present discussion, it “would strictly require the reversal of legislative measures which all democratic legislatures have found essential in the last half century.” That may well be. But would those legislatures have regarded it as essential to pass those measures in this particular form if they had understood that it meant the destruction of what for centuries, at home and abroad, had been regarded as the essence of British liberty? Was it really essential for social improvement that law after law should have given ministers powers for “prescribing what under this Act has to be prescribed”? About one thing there can be no doubt: this is essential to the progress of socialism.
[This article was originally published in The Freeman: April 20, 1953 (part I), May 4, 1953 (part II).]Author:
F. A. Hayek (1899–1992) is undoubtedly the most eminent of the modern Austrian economists, and a founding board member of the Mises Institute. Student of Friedrich von Wieser, protégé and colleague of Ludwig von Mises, and foremost representative of an outstanding generation of Austrian School theorists, Hayek was more successful than anyone else in spreading Austrian ideas throughout the English-speaking world. He shared the 1974 Nobel Prize in Economics with ideological rival Gunnar Myrdal “for their pioneering work in the theory of money and economic fluctuations and for their penetrating analysis of the interdependence of economic, social and institutional phenomena.” Among mainstream economists, he is mainly known for his popular The Road to Serfdom (1944).
Up until the closing of precincts on November 3, the 2020 election was about Donald Trump versus Joe Biden. With the absence of meaningful campaign messages and appearances from Biden, the election was essentially a referendum on four years of Trump’s presidency and whether the American voters would give him another mandate for four more years. By objective accounts, they did. But with abundant evidence pointing to a rigged election to hand in the presidency to Joe Biden, the real issue is no longer about who the president-elect is. This is no longer about Trump versus Biden.
The real issue now is whether America will be a banana republic or not. The integrity of the election will define the nation for years to come. Therefore, President Trump must see this fight not for his survival, but for the survival of the United States of America.
During the campaign, the liberal Democrats, including Joe Biden, have made it clear that they were not genuinely interested in discussing their real plans for the next four years if the voters handed them the power. Asked by a reporter prior to the election whether he would be packing the Court or not, Biden said he would answer the question after the election. At this juncture, one has to take seriously the Democrats’ intent at face value. Whoever brazenly committed massive cheating of this magnitude in front of millions of American people will certainly have no qualms doing the same or even worse in the future. A desperate and obsessive desire for power can lead to desperate measures.
In the last two weeks, the Trump legal team has gathered enormous data and information indicating that massive cheating and fraud to steal the election have been committed. If they are highly confident in the evidence they have, then, as Jay Valentine described, it’s time to call it as it is: a coup. That is a deliberate attempt to capture power through a combination of violent means (committed by the radical wing of the party) and preprogrammed, organized election fraud.
A coup is never constitutional. In fact, it is a direct attack to the Constitution.
What then must a sitting president do? The president’s oath provides the answer plainly.
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
It is worth repeating that the solemn duty of the president is to defend the Constitution.
History often teaches us a great lesson on how to deal with a crisis.
Facing a prolonged war and the breakup of the nation, President Lincoln appointed Ulysses S. Grant general-in-chief of the Union armies in February 1864 with a sole intent to win the war in order to keep America together as a union. Not wasting any time, General Grant summoned General William Sherman to meet him at the Burnet House in Cincinnati, Ohio, on March 20, 1864 to devise a strategy to defeat the Confederacy.
Both generals came up with a plan. General Sherman was to attack General Joseph Johnston’s army in the South, and General Grant would go after General Robert E. Lee in Richmond, Virginia. Through long and hard battles, both the Union generals were victorious, which effectively ended the war on April 9, 1865.
The history lesson is fighting two simultaneous battles to win a war.
As the president’s legal team is assembling all the evidence to be presented to the Supreme Court, it is wise and imperative for the president to simultaneously prepare and announce the initiative needed to enforce the constitutionality of this election. There is little doubt that the left will resort to violence and intimidation to get what it wants in this election. Already a radical Democratic politician and an activist in Michigan threatened the children of Monica Palmer, a Republican Wayne County Board of Elections canvasser, for her refusal to certify the corrupt election results in the county. Fearing for the safety of herself and her family, Monica Palmer gave in and agreed to certify the election. (She is now attempting to rescind her vote.)
Unfortunately, we will very likely see more of this. The Democratic Party’s goal is simple: threatening anyone who dares to challenge the integrity of the election and refuses to validate the results with violence. But if we choose to cave in to the thuggery instead of defending the Constitution, that means we are no better than many third-world countries, where despots and dictators generally win elections through intimidation and vote manipulation. And we have no standing whatsoever to tell the world about the merit of our democracy, let alone fight in other countries in the name of democracy.
We don’t know when or whether this case goes to the Supreme Court, which will hopefully help sort it out. But the president must make it clear that any attempts to threaten the constitutionality of the election, whether by threats of violence or mass riots, will be dealt with swiftly, with force. Whether the president decides to invoke the Insurrection Act or any other legal means available at his disposal as the commander-in-chief, it had better be announced soon.
If, after all possible legal means have been exhausted to ensure the constitutionality of the election, including counting only the legal votes, President Trump turns out to be behind Joe Biden, kudos to the Democratic Party. They won the race fair and square. But that in itself is Trump’s monumental achievement worthy of historic praise. And the year of 2020 may be remembered not just for the coronavirus, but for the beginning of truly fair and honest elections across America.
For that reason, President Trump must not give up.
It is an overplayed cliché to refer to the insanity of the current year. Still, 2020 manages to surprise. It is increasingly looking like 2020 has created the greatest challenge to democratic legitimacy in the past century.
Yesterday was a truly remarkable day in American history.
The official legal team for President Donald Trump—led by Rudy Giuliani, Sidney Powell, and Jenna Ellis—outlined an argument that America’s elections were hijacked by a conspiracy involving Dominion voting systems, the Smartmatic corporation, and elected officials of both parties. The team claimed that these actors collaborated with foreign enemies of the president to ensure he lost the 2020 election, actively inflating the vote totals for Joe Biden. The evidence, they say, will include hundreds of sworn affidavits and other documents that will validate their accusations. They also implied that the Department of Justice is either actively involved in this plot or serving to protect those involved.
The press conference was heavy in bold and striking claims, but so far the legal team has not provided enough documentation to adequately vet the claims made. It is certainly true that questions existed about some of these voting systems prior to the election and that the official results include all sorts of unprecedented voting trends that have sparked questions about their statistical likelihood. Unlikely outcomes are not, however, impossible outcomes, and there are no accusations that any voting machines were illegally used without going through the legally required certification processes.
Any serious legal challenge by Trump’s campaign team will require significant evidence that they have yet to make available. Of course, if the claims are accurate, the case involves a crime that may be beyond the capabilities of America’s judicial system.
What the Trump campaign can legally prove, however, is almost a secondary issue at this point.
Yesterday’s press conference has entrenched the current American president in the position that his anointed successor is illegitimate and that he is the one who holds a democratic mandate to govern.
America has had controversial electoral outcomes before, such as the elections of 2000 and 1876, which ended up being decided by party leaders in a smoke-filled backroom (Republican Rutherford Hayes was given the presidency over Samuel Tilden in exchange for the repeal of Reconstructionist-era laws in the Southern states).
There are several key differences between these instances and the current political turmoil: you now have a populist sitting president, actively despised by the corporate press, who is simultaneously disliked by the establishment of his own party and passionately beloved by his base.
regardless of the legal outcome, America is about to find itself with a president that will be viewed as illegitimate by a large portion of the population—and perhaps even the majority of some states. There is no institution left that has the credibility to push back against the gut feeling of millions of people who have spent the last few months organizing car parades and Trumptillas that their democracy has been hijacked by a political party that despises them.
The response we will receive from the corporate press, Very Serious pundits, and the various talking heads representing all the institutions that Trump has repeatedly mocked and belittled is obvious. Trump’s legal team is being dismissed as a bunch of partisan, sycophantic cranks spinning baseless conspiracy theories. Donald Trump is being portrayed as a spoiled, entitled man-child who would rather take down American democracy than admit he lost. His supporters will be dismissed and mocked as, at best, dumb suckers or, at worst, potentially violent right-wing extremists.
The problem is that, regardless of one’s opinion of Donald Trump or the specific claims made by his legal team, America’s elite and those in power have no credibility of their own.
For almost four years, the corporate press has propped up various false stories about the president while simultaneously propping up his political enemies and actively ignoring stories about the misconduct of Joe Biden’s son and potential conflicts of interest regarding the former vice president. The concerted effort to ask serious questions even forced journalists like Glenn Greenwald to ditch a media company he helped found.
At the same time, progressively-aligned Big Tech companies (many of which are staffed by former members of Kamala Harris’s political offices) have been taking an increasingly aggressive role in censoring and editorializing President Trump and his supporters.
Their claims that they have an ethical obligation to combat “misinformation” in the name of “democracy” are undermined by their willingness to actively assist the Chinese Communist Party in censoring dissidents.
Meanwhile, the professional political class in this country, lauded as “experts” by the bad actors mentioned above, has long mocked the notion of democratic oversight. An explicit example was offered just recently when Jim Jeffrey, a US envoy to Syria, gleefully disclosed to DefenseOne that American military leaders successfully maintained a larger military presence in the country than President Trump had ordered. The power of America’s professional bureaucracy goes beyond military matters, however, and the hope of much of America’s elite is that US policy will be increasingly influenced by their colleagues at the UN and other globalist institutions. Be it the Paris Accord or the Great Reset, many American progressives increasingly view very serious policy matters as issues too important to be entrusted to American voters.
Further still, America’s political environment has become so polarized and hostile that you have many elected officials in positions of influence who openly despise large swaths of the American population. For example, Arizona’s secretary of state—the woman in charge of election integrity in the state—described Trump’s base as “neo-Nazis” in 2017. Given her public statements, why would any Trump supporters have any faith in a governing body she influences to count votes? Meanwhile, the secretary of state in Michigan was a former employee of the Southern Poverty Law Center, a left-wing hate group.
It would, of course, be wrong to suggest that the elites of the American left are alone in their hatred of their political enemies. While the Left has tended to be more violent in recent years, there are many Republican voters who consider the political left immoral, un-American, and a threat to their families. The difference is that, outside of a few levers of federal power held by the Republican Party, the American right does not have nearly the same institutional support that the Left does currently.
It appears that 2020 may be the year that finally proves that the façade of democracy is not enough to maintain a unified political body. The election process does not inevitably lead to compromise and tolerance, but rather ends in those in power and those who are politically vanquished. When the losers of elections do not view their loss as a genuine reflection of democratic will, but rather an illegitimate coup, it is difficult to maintain governance over a population. Joe Biden appointing John Kasich–type Republicans will do little to soothe and reassure those who view a Biden presidency as little different than an occupational force.
This is why Ludwig von Mises viewed political decentralization and secession as a necessary component of liberal democracy. The proper objective of the democratic process was the peaceful transfer of power reflecting changes in the political will—political self-determination—rather than some form of civil worship of the will of the majority. When political differences become irreconcilable, true political decentralization allows for the breaking of political unions.
Will that end up being the ultimate result of the position of Trump’s legal team? Who knows. Trump and a few lawyers will certainly not be enough to overturn the official results or to successfully spur a Trump secession movement. What will be interesting is how the institution of the Republican Party will respond to the escalating rhetoric of the president.
Under President Obama, the Republican Party remained civil and submissive while its Tea Party base discussed ideas like nullification and a convention of states. The sterility of the traditional GOP is likely a major reason why Donald Trump was able to take over the party. How much of the modern GOP will continue to follow the forty-fifth president, and how many will end up being perfectly content with being partners with Joe Biden?
What we can be sure of is that it will be much harder for Biden to win over many of the 70+ million Americans who voted for Donald Trump earlier this month.
Love is blind, they say; sex is impervious to reason and mocks the power of all philosophers. But, in fact, a person’s sexual choice is the result and sum of their fundamental convictions. Tell me what a person finds sexually attractive and I will tell you their entire philosophy of life. Show me the person they sleep with and I will tell you their valuation of themselves. No matter what corruption they’re taught about the virtue of selflessness, sex is the most profoundly selfish of all acts, an act which they cannot perform for any motive but their own enjoyment – just try to think of performing it in a spirit of selfless charity! – an act which is not possible in self-abasement, only in self-exultation, only on the confidence of being desired and being worthy of desire. It is an act that forces them to stand naked in spirit, as well as in body, and accept their real ego as their standard of value. They will always be attracted to the person who reflects their deepest vision of themselves, the person whose surrender permits them to experience – or to fake – a sense of self-esteem .. Love is our response to our highest values – and can be nothing else.” ― Ayn Rand
Love is blind, they say; sex is impervious to reason and mocks the power of all philosophers. But, in fact, a person’s sexual choice is the result and sum of their fundamental convictions. Tell me what a person finds sexually attractive and I will tell you their entire philosophy of life. Show me the person they sleep with and I will tell you their valuation of themselves. No matter what corruption they’re taught about the virtue of selflessness, sex is the most profoundly selfish of all acts, an act which they cannot perform for any motive but their own enjoyment – just try to think of performing it in a spirit of selfless charity! – an act which is not possible in self-abasement, only in self-exultation, only on the confidence of being desired and being worthy of desire. It is an act that forces them to stand naked in spirit, as well as in body, and accept their real ego as their standard of value. They will always be attracted to the person who reflects their deepest vision of themselves, the person whose surrender permits them to experience – or to fake – a sense of self-esteem .. Love is our response to our highest values – and can be nothing else.” ― Ayn Rand
CHARLES Louis de Secondat, Baron de Montesquieu, was called “perhaps the most central thinker … of the enlightenment” by Robert Wokler. He was such an important influence on America’s founders, particularly his argument that a separation of powers was necessary for liberty to be maintained, that one writer characterized him as the “Ideological co-founder of the American Constitution,” along with John Locke.
Of particular importance for America was his analysis of liberty (including economic liberty), property, and the role of government in a republic. Countries are well cultivated, not as they are fertile, but as they are free.
Liberty consists principally in not being forced. Political liberty consists in security. In a country of liberty, every man who is supposed a free agent ought to be his own governor. The liberty of one citizen is of greater importance to the public than the ease or prosperity of another.
In a well regulated democracy, men are equal only as citizens. In republican governments, men are all equal; equal they are also in despotic governments: in the former, because they are everything; in the latter, because they are nothing.
Political liberty is to be found only … when there is no abuse of power. The real wants of the people ought never to give way to the imaginary wants of the state.
A nation may lose its liberties in a day. It is much better to leave trade open than … to restrain the liberty of commerce. Severe and tyrannical government was incompatible with commerce.
Commerce … flies from the places where it is oppressed, and stays where it has liberty to breathe.
When a democracy is founded on commerce, private people may acquire vast riches without corruption of morals. Trade produces … exact justice, opposite to robbery. Commerce … renders every man willing to live on his own property.
When the inhabitants of a state are all free subjects … each man enjoys his property with as much right as the prince. The public good consists in everyone’s having his property … invariably preserved.
Each citizen contributes to the revenues of the State a portion of his property in order that his tenure of the rest may be secure.
Whenever the public good happens to be the matter in question, it is not for the advantage of the public to deprive an individual of his property, or even to retrench the least part of it by a law, or a political regulation.
The state is the association of men, and not men themselves. In a democracy the people are the sovereign.
We cannot give someone else greater power over us than we have ourselves. In an extensive republic … there are trusts too considerable to be placed in any single subject; he has interests of his own; he soon begins to think that he may be happy and glorious, by oppressing his fellow-citizens.
The tyranny of a prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy. Cut the tree at the bottom and gather the fruit. That is exactly a despotic government. Useless laws weaken the necessary laws. Laws undertake to punish only overt acts.
Montesquieu was one of the most influential political thinkers behind America’s founding in pursuit of the blessings of liberty. Central to that influence was his recognition that those blessings required that “government should be set up so that no man need be afraid of another.” But his intellectual legacy is now honored mainly in the breach, with government primarily devoted to transferring resources and power to the politically influential, which forces Americans to constantly fear that government’s power will be employed against them. We need to revive our commitment to that legacy, rather than to developing new and improved means for the state to prey on citizens it was intended to protect.
