Obama vs. the Rule of Law

What would you do if you were asked to sacrifice the life of individual for the nation's alleged economic progress? I'm sure the readers of this journal would be indignant and outrage at the request. We uphold the doctrine of the rule of law, which holds that everyone is equal before the law. The rule of law, however, is much more than that. It protects us from arbitrary power used to violate our rights in the name of mere expediency or whim. It is precisely the rule of law that is under attack when our president demands that we allow him to plunder our most productive citizens if we wish to avoid the "fiscal cliff."

We are a constitutional republic. Broad fundamental laws and a separation of powers protect the American people from the arbitrary rule of men. Our founding fathers designed a system that was meant to keep a liberal democracy from degenerating into mob rule. They knew that mere legality, the creation of statutes, can violate the rights of the individual as much as a lawless tyrant or monarch. Decades later, Alexis de Tocqueville, commenting on "Democracy in America" popularized the phrase "the tyranny of the majority" to describe a degenerate democracy that violates the rights of a minority.

Friedrich von Hayek presents an excellent contemporary treatment of the rule of law in his classic work, The Constitution of Liberty. Law should "in its ideal form be a 'once-and-for-all' command that is directed to unknown people and that is abstracted from all particular circumstances of time and place..." It should apply to each individual equally, not "single[ing] out any specific persons or groups of persons." It should be fixed and general in nature, not situational or short-sighted, thus allowing human planning and long-term production. It defines a "protective sphere" of action better known as private property. Freedom under the law is freedom to act within one's sphere, i.e. use and dispose of what is properly one's own.

The antithesis of the rule of law is the arbitrary rule of men. This occurs when coercive power, sanctioned by government, is used to violate the rights of individuals by disposing of their lives and property as convenience or desire dictates. In a particular order it may well be legal; but that isn't sufficient to meet the standard of the rule of law as described above. Our president is brazenly violating the rule of law by violating the property rights of our most productive minority based on a subjective notion that they are not paying a sufficient fraction of their earnings to support his grandiose spending schemes.

Mr. Obama gives us rationalizations -- "make the rich pay their fair share" -- as a justification of violating the rights of our productive neighbors. However, this "fair share" is nothing more than his gut feeling. What is "fair share"? Is it proportional to earnings? That would be a flat tax and Mr. Obama is no advocate of such a fixed and uniform rule. He favors a so-called progressive tax that disproportionately taxes higher earners. If a disproportional burden is now considered justice, the word has lost all meaning. If he holds the egalitarian notion that any difference in income (i.e. so-called inequity) is inherently unjust, he opposes wealth on principle. Since he won't reveal his principles, we'll have to examine his actions to infer them.

It is curious that he advocates holding the line on taxes for the majority of the population while allowing the Bush tax cuts to expire for the highest earners. He calls us to "ask for the wealthy to pay a little bit more." The added revenue will only be 5% of the deficit and do nothing to stop the debt from spiraling out of control. This is not a serious plan for reducing the deficit and serves a very different purpose.

For the president, the issue is moral. As long as there are wealthy individuals, they should be made to support the majority. Their income should be redistributed according the the rule that Obama implicitly follows: from each according to his ability, to each according to his need. This is not the American tradition; it is a very different tradition that has brought vast misery, death, and destruction in the last century.

A critic might say this goes too far. After all, Mr. Obama said "a little more." But why is he fighting for an insignificant amount? Why is he holding everyone's tax rate hostage to his passion to tax the rich "a little more?" If it isn't the dollar amount, it must be the principle. Establishing a precedent is far more important than solving our sovereign debt problem. He'd dangle the nation over the "fiscal cliff" to extract just "a little more" so that he can reaffirm the Marxist notion that wealth should be redistributed from the pockets of our highest achievers as the majority wills. The mob that "occupied Wall Street" now has a voice in the highest office of the land.

The very reason he advocates plundering the rich is the reason we must oppose it. We cannot allow a minority to be singled out and plundered at will whenever the president wants another "fiscal hit." If we are to maintain a civilized order we have to respect our neighbor's property as we would want them to respect ours. Obama's divide-and-conquer strategy appeals to those who envy their wealthy neighbors; but they delude themselves when they think he will stop the plunder at their neighbor's doorstep. "First they came for the one percent and I said nothing ..."

Last week the voters re-elected the Republicans to congress to do the job of Congress: make the laws. And they re-elected Mr. Obama to the presidency to do what the executive does: execute the laws. It's important to note that the President got elected without significant coattails -- a rare occurrence. It has happened in 1996 when Bill Clinton was reelected and continued to face a Republican Congress. That re-elected Congress passed the Taxpayer Relief Act of 1997, which President Clinton signed into law. Once again, Republicans in Congress must stand on principle; there is no excuse.

Some analysts on the right argue that this is an economic issue, not a moral issue. With all due respect, the moral issue is of greater importance. However, our ethical principles form the basis of a prosperous social order. They are grounded in human nature and serve the purpose of protecting the fruits of rational productive work. This was essentially Locke's argument for property rights. This was the Founders' moral framework. Often this is lost in the details of economic calculation. And one can always find an economist to rationalize any seemingly expedient short-cut to economic growth. Moral short-cuts, as wise philosophers from Cicero to Ayn Rand remind us, are neither moral nor practical in the long run.

Hayek provides a guide to discern the tipping point from liberal democracy constrained by the rule of law to one described as a tyranny of the majority: "What is required here is a rule which, while still leaving open the possibility of a majority's taxing itself to assist a minority, does not sanction a majority's imposing upon a minority whatever burden it regards as right. That a majority, merely because it is a majority, should be entitled to apply to a minority a rule which does not apply to itself is an infringement of a principle much more fundamental than democracy itself, a principle on which the justification of democracy rests."

There is only one honorable position Republicans in Congress can take. They have to tell the president that we cannot abandon the bedrock principle of the rule of law; that the rights of a minority, no matter how modest or successful, cannot be violated, their property seized, their lives disposed of, nor their liberty abridged whenever the state so wills. Republican must state that they understand that the President will try to use our principled stand as an excuse to blame us for the failure to extend the Bush tax cuts, however, principle must yield to short-term political unpopularity. Mr. Obama knows what is at stake here -- it is the soul of our nation.


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