Democracy on the Decline

Democracy on the Decline

Ben Franklin, at the conclusion of the drafting of the United States Constitution was asked what the drafters had given the people of the newly minted United States of American. Mr. Franklin responded:

“A republic, if you can keep it.”

That response was both curious and prophetic. Mr. Franklin, unlike the majority of the country’s citizen who had suffered the indignities of colonial rule from a plutocracy of elitists and backed by the power of the monarchy in England, understood that a democracy was a fragile form of government that required at least three things to persevere:

  • Voluntary compliance with the law

  • An executive whose authority is limited by popularly elected legislators.

  • An impartial judiciary unbound by politics

You see a democracy needs to be governed by the majority but limited by the need to protect the rights of individuals. Today, those concepts are being tossed aside by the political class.

While the overwhelming majority of American citizens act to voluntarily comply with the laws as propagated by local, state and federal elected officials, it is the elected officials themselves who have tilted the system to encourage lawlessness. For example in 2020, Portland officials turned their backs on the outrageous conduct of groups identifying themselves as being affiliated with Black Lives Matter and Antifa as they rampaged through the city burning, looting, and vandalizing for over 100 days. The elected officials at both the city and county levels turned the city over to thugs. And even in those rare instances in which individuals were arrested and charged with the crimes, the public officials had adopted a no bail response allowing the miscreants to be back on the streets before the officers completed the paperwork. And after that, the prosecuting attorneys dismissed the cases on a wholesale basis. As a result, Portland has fewer police officers than it has had in over two decades despite an increase in the population.

Why put yourself in harms way if the result is Portland’s laughable criminal justice system? It is a system that encourages rather than punishes lawlessness. Portland has never recovered and never will recover. It has become Detroit on the Willamette much to the chagrin of those of us who loved the city but will not live there or even visit again.

There is no effective deterrent to executive action. In the first instance Congress (and the same is true for state legislatures) have abandoned responsibility for considering and defining the boundaries of legislation passed. Instead they have adopted what is referred to as “target legislation” in which they set a “goal” defined with broad, glittering generalities (i.e. reduce pollution, end poverty, improve health, etc.) and leave the details to unelected bureaucrats in the executive branch of government. While legislators are besieged from all sides with the likely consequences of specific language, bureaucrats are not. Reducing pollution at the expense of economic dislocation is never considered. Ending poverty never considers the cost nor the means by which people are moved from poverty to productive contributors to society – it is focused on giving people that which others work to obtain. And improving health means providing free health services regardless of cost or capacity, or more importantly changing the conduct of individuals as a means for improving health and thus mitigating the need for continuous health care. (For instance when you see an obese woman with three overweight children piling a shopping cart with boxes of dried pasta and cheese, sugared soft drinks and sweetened treats you can rest assured that, after she pays with one of the twenty-three different government sponsored and funded welfare programs, she and/or her children will also be receiving government funded healthcare for obesity, diabetes, high cholesterol and cardiac difficulties.) In other words, improving healthcare means free medical services – not improving the health of its recipients.

And the courts have aided and assisted in the proliferation of this shift of responsibility by deciding that they must defer to the “expertise” of the bureaucracies despite the fact than there is no actual expertise required or, in fact, encouraged. This may be changing given that the United States Supreme Court has recently heard arguments regarding this deferral and whether such authorizing legislation may be void for vagueness. (Loper Bright Enterprises v. Dept. of Commerce and a companion case, Relentless v. Department of Commerce). Hope and pray that they reduce the power of the bureaucrats and force the Congress and state legislatures to deal with the minutia of legislation against a backdrop of its potential effects.

And finally, the judicial system is no longer populated by impartial arbiters but rather by politically biased operatives. This all began when the trial lawyers banded together to maximize the opportunity to place judges in office who would be sympathetic to novel theories of liability and supportive of big verdicts. After a period of time in which there was mixed success, they settled on a strategy of concentrating their political power (money) on gubernatorial candidates who had the power to appoint judges. This occurred most obviously in states with virtual one-party rule such as Oregon and Colorado. It has morphed into a process where a judge appointed is informed directly or by custom that they should resign or retire before the end of his/her term so that the governor can appoint yet an other politically compliant judge or justice. In Oregon, every member of the state Supreme Court and Court of Appeals has been appointed by a Democrat governor – that being the case since the Democrats have held the governor’s office for over three decades. And while that might be lawful it is contrary to intent of the Oregon constitution which made those offices subject to elections. (Yes, the appointed justice must stand for election at the next general election but (s)he does so with the imprimatur of Incumbent on the ballot – basically a signal that this individual is already qualified and on the job.

Let’s be clear, for everyday litigants they are likely to receive quality and unbiased judgments. However, if the matter is primarily political or involves the power of government, you are likely to receive a very political decision. It is precisely what happened in Colorado when a bureaucrat decided to remove former President Donald Trump’s name from the primary ballot and the Colorado Supreme Court, without foundation, upheld the partisan attack. And the same would have occurred with a challenge in Oregon but the United State Supreme Court intervened before the case could be heard. It is the same outcome as expected in states like Georgia, Michigan and Wisconsin where Democrat appointed courts are voiding redistricting maps and substituting their Democrat versions even though state constitutions reserve that authority to the state legislature and the Democrats lack majority status.

I bring these to your attention because these are evidence of the breakdown of democracy. Virtually every aspect of government has now been suborned to the acquisition and retention of power. Decisions are being made not for the well being of democracy but rather for the benefit of political power. It is the harbinger of the failure of the very democracy that our founders and those who gave their lives in between then and today cherished but are now watching vanish.

And in the end only you can do something about it. Will you keep the republic cherished by Benjamin Franklin?