—James Madison,The Federalist 51
Burke was writing about corruption in the Hanoverian court of George III, but he could have been writing about the metabolism of vested interest in modern bureaucratic democracies. People across the political spectrum feel that the political order is out of joint. Their identification of the causes may differ according to political filiation, but there is widespread and uneasy agreement about the symptoms. The uneasiness speaks to the complexity, also to the seriousness, of the issue. A rising tide of corruption brings with it a faltering of legitimacy, which in turn yields a withdrawal of allegiance. Western democracies still maintain the forms of a free society. We hold free elections. We pay obeisance (a nice Latinate word for “lip service”) to free speech and free markets. But these forms increasingly resemble the abandoned buildings of a ghost town. The structures still stand, but no one lives there. We elect people to govern us but are, more and more, governed by an alphabet soup of unelected bureaucrats. According to The Washington Post, over the past decade, the Environmental Protection Agency has spent close to $1 billion on high-tech military-grade weaponry, including guns, body armor, camouflage equipment, unmanned aircraft, amphibious assault ships, radar, and night-vision gear. Why? We preen ourselves about the First Amendment but are too timid to teach Huckleberry Finn in high school, even as the Attorney General of the United States issues minatory bulletins about prosecuting people for saying disobliging things about Islam. A decadent society is one in which the traditional forms of social life persist but without the animating faith that once implicated them in the warp and woof of everyday life. Is that where we are now?
No human institution is immaculate. Having been framed by the crooked timber of humanity, how could it be? And yet there are degrees of maculation. So long as an ideal commands respect, local failures to achieve the ideal can be tolerated as part of our human, all-too-human frailty. Part of the genius of the American Founders was to devise a mechanism that not only recognized, but actually incorporated the passion of individual self-interest into the fabric of political life, “supplying,” as Madison famously put it, “by opposite and rival interests, the defect of better motives.” As Jay Cost points out in his essay below, this system was never perfect. And perhaps, he suggests, you “sometimes . . . need a little corruption to get things done.” The question is whether, or to what extent, the government should be party to the favoritism that vested interest demands. Madison thought the federal government should be more or less hors de combat in that theater. It should take care that the playing field be even but not be party to the scrum. The more worldly, or more cynical, Hamilton thought that larger common good required the federal government to play favorites. If the country was to thrive, certain segments of the economy, and hence of the populace, must be advanced over others. In practical terms, Hamilton won the day, though the engine of his robust commercial ambitions powered a vehicle whose chassis was largely delineated by Madisonian ideals.
In the essays that follow, three large themes recur. One is the Burkean theme warning against the dangers of imposing lofty abstractions on the messy reality of everyday life. “The pretended rights of these theorists are all extremes,” Burke wrote in Reflections on the Revolution in France; “and in proportion as they are metaphysically true, they are morally and politically false.” Declarations of Human Rights (upper case, please!) sound very grand; all the grander and the less accountable are those propagating them. But their implementation on the ground, in everyday life, is consistently the opposite of grand when it is not like a dark comedy framed by Kafka or Gogol. Noel Malcolm, in his reflections on the evolution of human-rights law in post-war Europe, notes that what was proposed as a protection against majoritarian tyranny has come more and more to be a tyranny of unaccountable elites. “All can accept the notion of fundamental human rights,” he writes,
as a way of saying that people should be protected against tyranny; but when those rights are elaborated into detailed instructions about how we may and may not make our arrangements within a thoroughly non-tyrannical state and society, the value of the whole human rights enterprise is put in jeopardy. And that is what the expansion of human rights law has already begun to do. What should have been a set of limiting conditions, setting an outer framework beyond which political power should not go, has become instead a set of generative principles, out of which more and more specific rules can be deduced about how people should act in normal life.
How specific? Malcolm provides several examples that would be comic were they not part of the dismal politically correct script that has come to define so much of our cosmopolitan, ruled-by-elites life. Thus it is that the right to be secure in home “now covers a gypsy who is living illegally on non-residential land.” The legal reductiones are often ad absurdum. In one case Malcolm cites, a judge found that poor television reception counted as a human rights violation.
At issue is not only the absurdity of the human-rights regime, but also the profoundly anti-democratic pressure its fecund self-generation of ever-new rights entails. By imposing “one fixed solution,” the bureaucracy of human-rights law “removes democratic choice not only at the present time but forever, as it rules out any future attempt to amend or repeal.” Part of the corruption of our political institutions flows from the habit of vesting more and more power in bureaucracies that are answerable, in fact if not in principle, only to themselves. As Douglas Carswell notes in his discussion of the bureaucratization of political parties in Great Britain, what we have witnessed is the emergence of “a new oligarchy” that pits a remote elite of both parties against the interest of the people.
In “International law v. the people,” Keith Windschuttle describes this process unfolding in Australia. Whether the issue is illegal immigration from the Third World or Aboriginal rights, Australian law has become more and more captive of a “supra-national legal regime” that “sits above national constitutions and is enforced mostly by compliant national courts.” This movement, Windschuttle notes, involves “a reversal” of Australia’s traditional, democratically ordained political arrangements and a wholesale transfer of power to “courts, NGOs and transnational bodies.” More Gogol: Today, Australia maintains not only a Disability Discrimination Commissioner and his staff, but also a Race Discrimination Commissioner, a Sex Discrimination Commissioner, a National Children’s Commissioner, an Age Discrimination Commissioner, and an Aboriginal Social Justice Commissioner. Has any special (not to say specious) interest group been left out?
The intentions of those administering this carnival of supposed grievances may be good; then again, they may simply employ the rhetoric of good intentions (rights for Aborigines, rights for Sri Lankan boat people, etc.) as a cover for the accumulation of power and political perquisites to themselves. Either way, the idea that sound policy “could be developed by abstract principles of human rights drawn up by activists in Geneva and New York rather than by careful attention to what was actually happening on the ground in the country concerned was always legal hubris.”
Last year marked the eight-hundredth anniversary of Magna Carta, whose glorious mandate concerned the universality and impartiality of the law, whose imperatives, King John was made to acknowledge, applied even to the monarch. The year was full of celebrations of Magna Carta, and rightly so. It has exerted enormous influence on the literature, and sometimes the practice, of democracy ever since. And yet, as Andrew C. McCarthy points out in “Equality above the law,” the ink wasn’t dry on the parchment before King John, with the connivance of Pope Innocent III, abrogated the Charter’s central imperative that the law applies to everyone equally. McCarthy’s essay dilates on a second recurrent theme in these essays: the ironical tendency of calls for equality to wind up trampling on the equal or impartial application of the law. The Fourteenth Amendment to the U.S. Constitution calls for “equal protection” under the law, but the hermeneutical ingenuity of (mostly) left-leaning lawyers has seen to it that the law has been enforced most unequally in the pursuit of that ideal. Consider, for example, the specious doctrine of “substantive due process.” Based on what McCarthy identifies as the fallacy that “a guarantee of objectively fair procedure implies a guarantee of subjectively fair outcomes,” the insistence on “substantive due process” requires that Justice remove her blindfold and be ready to put her finger on the scale. “The liberty ostensibly safeguarded by due process,” McCarthy drily notes, “often counts for less than the government institution that gets to decide what process is due.” The result, he writes, is less the rule of law than “the use of law as a political weapon” to enforce a politically defined version of “equality” that requires the unequal enforcement of the law to proceed.
The corruption or decadence of a society’s political institutions does not develop in a vacuum. Our institutions are only as vital as the allegiance the people accord them. Which is why, as McCarthy notes, “Our political institutions reflect the state of our culture.” The relation between the state of our culture and the state of our political institutions was the third large theme to emerge in the essays that follow. As Daniel Johnson points out in “The dereliction of duty,” the hollowness of our political institutions is a coefficient of the hollowness of our attachment to the civilization that gave rise to them. Most of us, Johnson remarks, long ago “ceased to cherish or even understand” the cultural and religious roots that fed Western civilization and built up through the centuries the structures that persist as increasingly hollowed out caricatures of their former selves. It is a mournful sight that our elites present us with—what Johnson calls “priesthood of all unbelievers,” “votaries of a secular culture that has been drained of much of its moral and intellectual lifeblood.” And yet the recognition of that loss implies the possibility of recovery. The general tendency of these essays, like the discussion from which they sprang, is the opposite of cheerful. But it is also far from despairing. Johnson mentions the salutary effect of ridicule when directed against a sclerotic and, indeed, ridiculous establishment. To be sure, ridicule is a sharp and barbed arrow in the rhetorical quiver of dissent. But there are other resources in the armory of cultural recuperation. The primary burden of these essays was the negative task of diagnosis, a necessary precondition for the work of political and spiritual recovery that the corruption of our political institutions has bequeathed to us.
“The Corruption of Our Political Institutions,” a conference sponsored jointly by The New Criterion and London’s Social Affairs Unit, took place on October 2, 2015, in New York City. Participants were Jeremy Black, Tim Carney, Douglas Carswell, Jay Cost, Michael Gleba, Simon Green, Daniel Johnson, Roger Kimball, Andrew C. McCarthy, Noel Malcolm, Michael Mukasey, James Piereson, and Keith Windschuttle. Discussion revolved around earlier versions of the essays printed in this special section.
This article originally appeared in The New Criterion, Volume 34 Number 5, on page 4
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