DALLAS, July 11, 2013 — A recent Gallup poll shows that 68% of Americans favor a national referendum on key issues. This is one more sign that Americans are increasingly less confident in their elected representatives ability or even desire to follow the will of the people. After more than two hundred years of representative democracy, dissatisfaction with our elected representatives is at an all time high. It’s no wonder citizens would seek to bypass them.
One of the most disturbing trends in government is the abandonment of the principle of the rule of law.
The foundational principle in our Constitution, John Adams described the best government as “an empire of laws, not of men.” The American ideal is that we all stand equal before the law that is equally applied. The reality has become something quite different.
With more laws than even the federal government can count, laws are enforced haphazardly based entirely on the discretion of government bureaucrats, a trait in which Americans have very little trust. If we can’t tally the laws, then obviously we cannot know what all these laws entail or if we are violating them. It is likely that everyone daily breaks at least one of these innumerable rules. Like a reverse lottery, the odds are low that any one person will be prosecuted, but much more likely than the chances of winning millions.
No law illustrates this dysfunctional system of governing more than Obamacare. It began with a series of waivers for select business. Last week, the Obama Administration announced that it was altering the deal by giving businesses at least one more year to comply with the egovernmployer mandate in Obamacare. Individuals, however, were not extended such grace, and families and the self-employed will face the full brunt of the laws convoluted and costly requirements come January 1, 2014.
Two days later, the deal was altered further when the Administration announced another delay in implementing the law. There will be no verification of income or employer provided insurance for those who wished to participate in the tax-payer subsidized state exchanges. This take-all-comers honor system will surely raise the cost of Obamacare even further.
However awful Obamacare is, it was the duly passed law of the land. Placing the burden of the law on some while giving waivers and free rides for others makes a mockery of the idea of the rule of law.
All of these situations make a desire to reassert the “consent of the governed” into our laws through direct democracy understandable. As the California example shows, it’s a disastrous way to govern, one specifically rejected by our founding fathers in favor of a republic. But even if we were to embrace it, there is no guarantee the government would honor our wishes.
In ruling on one California ballot initiative — California’s Proposition 8 outlawing gay marriage — the Supreme Court recently made clear that the governed don’t actually have the right to insist laws be enforced. Because the state officials wouldn’t defend the law the people had voted for, citizens filled that role. The Supreme Court ruled that they didn’t have standing, ruling only the government has the right to defend the laws.
This means is no matter what laws the people pass, if these laws are challenged and if the government officials don’t like the laws, they have no requirement to defend them. No citizen can step in the breach to ensure the rule of law prevails. Referendums and initiatives, therefore, give the citizens only as much power as the government wishes to bestow.
Our nation was founded on the principle of “the consent of the governed.” Our government was established to reflect the desires of its citizens. We now have a system where politicians and bureaucrats can craft the government of their wishes by selectively enforcing or ignoring laws. Whether through our elected representatives or through direct ballot, our right to self-government is hamstrung by an overwhelming government bureaucracy that decides which laws to enforce and upon whom. The rule of law is effectively dead.
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