Do We Have A Democracy?

The issue of whether the USA is a democracy continues to arise. The simple truth is: No, the USA is not a democracy, not even a representative democracy, although it once was. That needs to change if America is to survive.

Theoretically, we live in a democracy. Schools then and now keep saying America is a democracy, and our federal constitution and all our state constitutions say we are a democracy. But today, the actual structure of our federal government and of all our state governments violates all those constitutions, so democracy is effectively dead.

Let me explain.

The phrase in the Declaration of Independence about governments deriving their just powers from the consent of the governed affirms men’s right to self-government, implemented via “democracy,” a term that connotes “government by the people.” Taken literally, the term “democracy” implies that the people subject to the government actually govern themselves for their votes decide all the issues of government.

For this to seem plausible, one must understand that democracy comes in two flavors, usually denominated “direct” and “representative.” A direct democracy is a government in which the people governed actually do decide all the issues of all three branches of government, legislative, executive, and judicial, in a big conclave or some such arrangement (e.g., old-style Vermont town halls). Obviously, this is not feasible where the people governed number in the millions.

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A representative democracy is a government in which the people elect representatives who staff the three branches of government and act on the people’s behalf. The democracy of the United States and of each of the States of the United States is supposed to be a representative democracy.

You might find it interesting to learn that the English Common Law—which (a) governed the 13 colonies and which the colonists valued so much they fought a war against Great Britain to retain because the latter was diminishing those laws and (b) is still the basis for our system of government and law today—is Teutonic in origin for ancient Teutonic people operated under a direct democracy.

Once Julius Caesar successfully conquered Germania by 50 BC and post-Caesar Romans conquered Britain by 88 AD, the Roman historian Cornelius Tacitus wrote his 97-98 AD work Germania. There, he noted that the Germani were the most formidable of all Rome’s opponents and attributed this to the Germani’s intense morality and strong attachment to freedom, of which Tacitus wrote, “The freedom of the Germani is a deadly enemy.” If you’re interested, he described in detail how their direct democracy played out.

In The Outline of History, H.G. Wells tells us that when trouble at home caused the Roman legions to be recalled from Britain to home in 410 AD, the Germani, Jutes, Angles, Saxons, and Danes switched from raiding Britain to settling in Britain, and became the fathers of the English.

Daniel Hannan, in Inventing Freedom: How the English-Speaking Peoples Made the Modern World, further asserts that the Anglo-Saxon political values these Teutonic migrants brought with them to Britain included personal autonomy, rights of contract, property rights, and rule by law, and thus became the headwaters of the English common law.

But enough of our Teutonic digression. Now let us return our attention to elucidating exactly how it is that, today, our federal and state governments fail to be democracies.

The US Constitution provides in Article 1 Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

This says in very plain words that all of the federal government’s legislative powers are vested in Congress. That means no person or institution has any power to make a federal law except Congress. Hence, no one can enact federal law except the people’s elected representatives. That is the constitutional guarantee of the representative form of democracy in the federal legislative branch.

In particular, the bureaucracy has no power to make laws. That is, no federal agency can write laws. But of course, today, they all do! Federal administrative regulations have the force of laws, and their total mass and effect are far greater than congressionally-created laws.

The same Article 1 Section 1 provision appears in every state constitution, but all the states have their home-grown bureaucracies that promulgate regulations, often called “administrative rules,” that are themselves laws, all without elected officials being involved.

Question: Which branch of the federal and state governments contains the bureaucracy? Answer: The bureaucracy is in the executive branch.

So, all those laws made under the guise of “administrative regulations” are made in the executive branch. What a gross violation of both federal and state constitutions and the separation of powers doctrine!

Now, to be sure, the bureaucrats have an excuse. They point to statutes by which the state and federal legislatures have delegated to the agencies the authority to make laws in the form of administrative regulations, and there is a long history of state and federal appellate decisions dealing with this delegation. (most notably Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which the Supreme Court is currently reviewing).

Initially, courts applied the doctrine of “non-delegable duty,” which rejected delegation. Then, when delegation proponents threatened court packing, the courts created a nuance that allowed delegating if the delegating statute provided sufficient guidance and instruction about how the agency was to implement the delegated legislative authority.

In fact, today, the United States and all states have a large statute called the “Administrative Procedure Act” (APA), which has the procedures for the administrative enactment, enforcement, and adjudication of administrative regulations. If you want to see the APA for a specific state, just Google the state name followed by “administrative procedure act.” The whole federal administrative infrastructure got a boost in 1984 from the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which said agencies got to have the last say in interpreting laws. The Supreme Court is currently reviewing its Chevron holding.

Today, every president, every governor, every congressman and state legislator, every elected politician, and every judge and justice of every court, both state and federal, knows that most of the “laws” controlling Americans are, in fact, the products of non-elected administrative agencies rather than constitutionally-authorized legislation from federal or state legislatures. All these actors go along with it to get along.

So, Houston, we have a problem: we are no longer a democracy, whether direct or representative! This exercise of unconstitutional power by the executive branch agencies to enact laws is truly a great source of many of our problems today.

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