Those with a mild concern for self-government in America might be feeling a little bit despondent this week. It seems that the people really don’t govern that much. Yes, elections matter, as the saying goes. But rule by an election is a different thing altogether from self-government. Self government is traditionally linked very much to the passage of laws by the people’s representatives and, if the states are added, to statutory and constitutional changes voted in referendums. These quaint forms are now easily ignored, all with widespread approval from the progressive forces.
Two events are emblematic of this state of affairs. On Tuesday the President spoke at Georgetown University and promised a package of executive orders and administrative rulings that aim, pretty much, to shut down the use of coal. After denying any war on coal during the election, now the administration is engaged in one—and this time, unlike the President’s war in Afghanistan, with what seems a genuine commitment. According to one advisor of the President, “Politically, the White House is hesitant to say they’re having a war on coal. On the other hand, a war on coal is exactly what’s needed.” The interesting thing about this is the overall justification of how policy is made. It is now said that major changes—moving to shut down an industry—will be “done administratively.” If a law can’t be passed, then it is regarded as perfectly acceptable to use the alternative mechanism. Presidents have inched in this direction before; but in the past five years, especially the past three years, this method of making policy has made its way from the shadows to appear in the full light of day. The new method amounts to a system in which ordinary law is replaced by “orders” or decrees coming from the executive or administrative branches. Progressives applaud this system, because everyone in Washington knows that the Republican House is “dysfunctional.”
Event number two is found in yesterday’s two Supreme Court rulings dealing with gay marriage. One of them, involving the state of California, looks to have been a sound legal ruling: the Court dismissed the case for lack of standing of the plaintiffs. But the effect is nonetheless illustrative of the “end of law” direction in which our politics are moving. The people of California passed proposition 8 in a referendum in 2008; it added a provision to the California Constitution that restricted valid state marriages to those between a man and a woman. A few court cases later -–together with some crafty executive inaction—and, bingo, this amendment is soon to be completely obviated. In this instance, almost everyone agrees that a new referendum could now easily achieve this same objective—but, what the heck, it’s easier and less expensive to bypass the lawmaking process.
The other is the Windsor case—discussed by Carl Scott earlier—in which the majority opinion not only sets aside part of the Defense of Marriage Act passed with overwhelming support in 1996, but also dismisses and disparages the motives of those who voted for it. The Progressives, who backed this legislation then but have now changed their minds, applaud this attack on themselves. Self-respect is not a virtue held in much esteem when it comes to moving on.” Again, it is governing by law which is being sacrificed, in this case to a casual court decision filled with much creative self-expression: when it feels progressive, do it.
Nothing in these moves this week is unprecedented. It’s all been done before. But what is new is the open casualness with which the idea of governing by law has been dismissed. Self-government is another of those anachronisms that, thankfully, is giving way to the new normal.