Never To Be Put Up For Vote; N. Hultberg

creeping over us. If we were to ask an ordinary American if he considers himself free and his government just (and if he were articulate), he would undoubtedly Mr. Hultberg is a freelance writer in San Diego. recite a long list of policies forced upon him by Washington and his own local city hall, ranging from ever increasing taxes and welfare to the incredible absurdities of mandatory co-ed gym classes, the banning of father and son picnics, and statemandated hiring of drug addicts and drunks. If we were to ask one of America's industrious small businessmen today if he considers himself free and his government just, he would (if he were politically aware) promptly reply, "Are you kid ding? I'm unfairly taxed, regulated, and controlled beyond belief by mindless government bureau crats. The forms to fill out for one year's operation alone are enough to swamp an army of secretaries and the most sophisticated computer I can afford to buy."

If we were to ask one of America's more money wise pensioners today if he considers himself free and his government just, we would be informed somewhat testily, "Certainly not. My savings are being systematically destroyed, a little bit more every year, by the 'paper aristocracy' and govern ment-induced inflation. Federal Reserve flim flammers are robbing me as surely as if they were to come into my local bank and steal a certain per centage of my savings account." How are we to account for such reactions? America doesn't have a visible dictator and is not like the Chinese, South Asian or Middle East tyrannies. How then can there be such widespread 372 disenchantment with the amount of freedom and justice we have in this country? The answer of course is that America does have a dictator, an invisible dictator. It is difficult for many to recog nize, for the dictator is not the President, or the Congress, or the Supreme Court. It is popular will.

What is the difference whether a government's dictates emanate from a single autocrat like Hitler, or from oligarchs like the Party in China, or from an electoral plurality as in America? If they are absolute dictates, arbitrarily arrived at, wide spread and cannot be disobeyed by the individual, then freedom no longer prevails. Today's high school civics classes laud the idea of "democracy" with pages of hosannas attesting to its charm. But our children would be better served with an introduction to H. L. Mencken's Noteson Democracy:"The aim of democracy is to break all ... free spirits to the common harness. It tries to iron them out, to pump them dry of self respect, to make docile John Does of them. The measure of its success is the extent to which such men are brought down, and made common. The measure of civilization is the extent to which they resist and survive. Thus the only sort of liberty that is real under democracy is the liberty of the have nots to destroy the liberty of the haves." 1 "[M]en of unusual intelligence and enterprise, men who regard their constitutional liberties seri ously and are willing to go to some risk and expense to defend them ... are inevitably unpop ular under democracy, for their qualities are qual ities that the mob wholly lacks, and is uneasily con scious of lacking."2 "Why should democracy rise against bribery? It is itself a form of wholesale bribery. In place of a government with a fixed purpose and a visible goal, it sets up a government that is a mere function of the mob's vagaries, and that maintains itself by constantly bargaining with those vagaries.

Its security depends wholly upon providing satis factory bribes for the prehensile minorities that constitute the mob, or that have managed to deceive and inflame the mob." 3 "The democrat, leaping into the air to flap his wings and praise God, is forever coming down with a thump. The seeds of his disaster ... lie in his own stupidity: he can never get rid of the naive delusion ... that happiness is something to begot 373 by taking it away from the other fellow."4 What then are we to make of this ruinous, "legalized plunder" that we call participatory democracy and extol as some sort of political Nirvana? A ConstitutionalRepublic What we are to make of it is that America was never meant to be a pure democracy. She was meant to be a strictly limited Constitutional Republic, governed by elected level-headed, high minded men whose chief function is to preserve our rights rather than render them nonexistent.

In other words, the Founding Fathers recog nized that all men possess rights that were never to beput up for vote. One of the most important of these was a man's right to his property (which meant also his wages and his profits). This is the fundamental cornerstone of our economic system, and precisely where it differs from the tumult of a democracy. The majority will is supposed to be strictly limited and have no power to redistribute a man's earnings. America's Founding Fathers knew their history well, and had seen the ultimate result of democracies-that they vote themselves into tyrannies, marked by constant unrest and sedition. James Madison gave us sage advice when he warned that "democracies have ever been specta cles of turbulence and contention; have always been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths."5 John Adams advised his fellow countrymen: "There never was a democracy yet that did not commit suicide."6 Thomas Jefferson, writing in relation to the Vir ginia legislature, stated, "one hundred and seven ty-three despots" are "as oppressive as one," and that "an elective despotism was not the govern ment we fought for."7 Even the intellectuals of ancient Rome recog nized that their empire's greatness and freedom were directly related to their republican form of government. In the words of historian Will Durant, Cicero believed that "[w]ithout checks and balances ... democracy becomes mob rule, chaos, and dictatorship." Cicero went on to say that the man usually chosen as leader in a democ racy is "someone bold and unscrupulous ... who 374 THE FREEMAN • OCTOBER 1992 curries favor with the people by givingthem other men's property." 8 Are we in modern America any different? Are not our political leaders "bold and unscrupulous"?

Do they not attempt to "curry our favor" by advo cating the redistribution of more and more person al wealth for socialservices? Is this not the same as giving the people "other men's property"? Have not all our modern era administrations been pos sessed of the same dictatorial inclinations? Have they not all advocated that the productive people of the nation give up progressively more of their earnings every year for those who do not wish to be productive? Here then is the evil of a democracy: It allows dictatorial control and confiscation of property simply because the electorate desires such control and confiscation. The concept of individual rights is thus destroyed, a dangerous cloud of confusion develops in the area of social ethics, and the might of numbersbecomes our only guide as to what is right and wrong. Few businessmen would ever think it right to rob the corner grocery store at the point of a gun to obtain money to help their faltering dry goods business. Yet most Americans today do not think it wrong to force the owner of that grocery store (under the threat of a prison sentence) to give up a substantial portion of his money (in the form of higher taxes) to subsidize corporations that are unprofitable, to support able-bodied men and women until they decide to go back to work, to reward pretentious mediocrities through the National Endowment for the Arts, and to pay farmers not to grow crops. What is the ethical difference between the two acts? Both are viola tions of the individual store owner's right to the product of his labor. The democratic method is so indirect that the responsibility for the act is diffused, and thus not so obvious to the perpetra tors. But is it somehow right because a plurality of the electorate is supporting it? The philosoph ical democrat would answer yes. But both acts, the gun-point robbery by an individual and the government taxing, are acts of coercion and infringe the individual store owner's rights. In both cases, the owner is forced against his will to give up money that he has earned to be used for a purpose that he neither approves of, nor cares about, nor is necessary to preserve a free society.

Philosophical democrats should ask themselves the following: What if a plurality of the people were bigots and voted a curfew for blacks? What if a plurality of the people were secular humanists and decided that the free exercise of religion was a detriment to the public interest? Or overwhelmed with the envy that lurks in the heart of every man decided to impose a 100 percent tax on incomes over $30,000per year? Would such unbridled big otry and envy be right because the majority will had voted so? Certainly not. A majority has the same capacity to destroy a man's freedom and a nation's justice as any graft-swillingdespot in any Third World dictatorship. By their very nature, an individual's rights are not to be abrogated by vote. They are· not to be subject to open assault by frenzied voters in search of covetous gratification. Madison, Jefferson, Hamilton, Henry, and Adams would be inflamed with outrage at the constitutional violations taking place in America today-violations that strike at the heart of the existence of the Republic.

PowerBringsAboutCorruption As Constitutional scholar Gottfried Dietze points out, the Founders of this nation believed that "popular government, being as human as any other form of government, ... was not immune from the corruption that tends to come with power. An expansion of popular power ... could bring about despotism as much as had the expan sion of monarchical power . . . . In a word, the growth of democracy could conceivably reduce the protection of the individual. It could pervert free government into a sheer majority rule which considered democracy an end in itself. "It testifies to the wisdom of the Founding Fathers that they recognized this danger. The oppressive acts of Parliament and of some state legislatures had brought home to them a demo cratic dilemma which was expressed by Elbridge Gerry's remark in the Federal Convention: 'The evilswe experience flowfrom the excessof democ racy.' The recognition that American government had to be democratic was accompanied by the realization that democracy could degenerate into a majoritarian despotism. To prevent this, democ racy was bridled. While men were deemed worthy of self-government, they were not considered so perfect as to be trusted absolutely.They were not given free reign."9 Our primary fault today then is that we have misconstrued what the democratic process is really for by givingmen the right to vote themselves spe cial privileges and riches at the expense of their neighbors. We now think the voting process can be used to determine what the entire role of govern ment should be.

In other words, whatever a plurality of voters wish of their government, they have the right to have, which in baldest terms is mobocracy, and leads to what Alexis de Tocqueville warned it would-the tyranny of the majority-in which the power of government "covers the whole of social life with a network of petty, complicated rules that are both minute and uniform through which even men of the greatest originality and the most vigor ous temperament cannot force their heads above the crowd. It does not break men's will,but softens, bends, and guides it; it seldom enjoins but often inhibits action; it does not destroy anything, but prevents much being born; it is not at all tyrannical, but it hinders, restrains, enervates, stifles,and stul tifies so much that in the end each nation is no more than a flock of timid and hardworking ani mals with the government as its shepherd." 10 This is modern democracy. If men such as Tocqueville, Acton, Burckhardt, Mill, Spencer, Belloc, and Mencken were alive today, they would surely be amused at our calamitous efforts to govern our selves by counting noses to decide truth and polit icallegitimacy.

This is not what America's republican form of democracy was meant to be. The democratic pro cess,in its republican form, was meant to be main ly the ability to remove politicians from office peacefully.It was meant to be a method to transfer power, not a method to define the scope and size of government. Such a task as that had already been accomplished through the Constitution. Thus the powers of government were already defined, with its functions prescribed for it in a written Constitution. The laws and services that citizens were to be allowed to vote for were strictly limited, and were almost always to be pro vided on the local or state level. Only in a few clearly designated areas were the people to be allowed to vote for the Federal government to provide them with laws and services. If it became necessary to alter this procedure, there was an amendment process provided that would require the electorate to operate deliberately and pruNEVER TO BE PUT UP FOR VOTE 375 dently. This was America's republican form of limited democracy.

Democracy's proper task is to allow people to determine which citizens of their communities are sufficiently possessed of the necessary integrity, brains, and skills to go to the seats of political power and implement government's pre-defined constitutional functions. It is basically a tool to avoid violence and coups d'etat in the transfer of power, to assure a peaceful and orderly succession. But the role of government cannot be left up to the vote of the majority in the open-ended, arbitrary manner that presently prevails. As the history of every ancient Greek democracy demonstrates, such a system will destroy the edifice of liberty, order, and prosperity. Many pundits, when confronted with the major ity-willdilemma, reply that such concern over the tyranny of the electorate is paranoid; that the country has endured till now, and that it will con tinue to do so; that the erosion of rights spoken of here could never happen. But it already has hap pened, continuously throughout the past 80 years, and to a lesser degree throughout the 19th century.

The progressive income tax amendment ratified in 1913,which basically permitted the destruction of the right to the product of one's labor and also equal rights under the law,was justified by the fact that the "majority of Americans" approved of it. In this case, three-fourths of the state governments eliminated the constitutional ban on direct taxa tion, and a plurality of our Congressmen made it steeply progressive over the years. The fact that it takes three-fourths of the state governments to alter the Constitution does not effectivelycheck a covetous majority from infring ing the rights of the individual. Fifty-one percent of each single state's legislators present and voting is all that is required for that state to ratify a fun damental change in the Constitution, and those legislators are put in office by a plurality vote of the people of that state. Thus if a plurality percent of the voters of 38 states can take awaya man'sfundamental rights,we really do not have an iron-clad guarantee against tyranny. In this way, it takes even less than 51 percent of the nation's voters to alter the structure of the Constitution itself and abrogate all the free doms we possess. Thus even our "deliberate pro cess" of amending the Constitution is susceptibleto exploitation at the hands of ill-informedpeople.

376 THE FREEMAN • OCTOBER 1992 There are numerous other examples of free doms lost to majority passions during this past cen tury. For example: The rash of labor legislation enacted during the twenties, thirties and forties (the Clayton, Wagner, and LaGuardia Acts), which destroyed the rights of workers and owners to trade freely, was justified by the fact that the "majority of Americans" approved it. The govern ment's present obsession with implementing racial and sexual quotas in business and education, which violate men's rights to associate freely, are being justified by the fact that the "majority of Americans" approve of them. Polls show that the "majority" approves of fed erallegislation restricting free trade. Yet the rights to trade openly and to associate freely are sup posed to be clearcut rights guaranteed to us as Americans. How long will they remain predomi nantly so? The Federal government is so imperi ous now that it doesn't even bother to cajole the necessary majorities of the required 38 states into amending the Constitution, to give it the power it wants. It merely grants itself sufficient bureaucrat ic power every few years to chip away at the right of citizens to dispose of their property, to trade and to associate.

If the Federal government can take away our right to our property (i.e., our income), our right to trade openly, and our right to associate freely because of "majority approval," then it can also at some later date take away our right to worship freely, our right to speak and write freely, our right to habeas corpus,or any other right we now pos sess. Yet are any of these usurpations proper because the majority wills them? Or even three fourths of the people? The answer is automatic to stalwart men of honor and principle: Might does not make right. The power of the majority willmust always be limited. And this is the reason why the Constitution should be interpreted literally, pro tecting rights that transcend the electoral process. This was the vision of America's revolutionaries in 1787.They gave us a republic,not a democracy. And though they fell short of achieving a perfect document, they at least gave the world a spectacu lar start toward understanding the value of a writ ten Constitution. They recognized that all humans have rights that are essential for the living of life-the chief of those being freedom of thought, association, and trade, and the control and dispos al of one's propertyrights that were not to be taken away by the one or the many.

In the end, personally committing an evil act most clearly shows its evil, such as the individual robbing a store. But the indirection of that same evil act (such as takes place through political means, when a plurality of voters approve legis lators and laws to confiscate private property through taxes) clouds the concepts of right and wrong and allows the evil to become entrenched. In such a covetous climate, tyranny is not far away. Few authorities are willingto discuss it, but here is a principal impediment to freedom and justice in America today: our blind worshiping of the major ity will.We are making slaves out of those who are productive, and rulers out of special interests. We are allowing the destruction of individual rights to be justified by the might of numbers. The demo cratic majority swathed in envy is stepping all over the individual, and we have lost the clarity of mind to recognize such a crime for what it is. D 1. H. L. Mencken, Notes on Democracy(New York: Alfred A.

Knopf,1926),p. 151. 2. Ibid., p. 160. 3. Ibid., p. 180. 4. Ibid., p. 208. 5. EssayNo. 10, The FederalistPapers,RoyP. Fairfield,ed. (New York:Doublday& Co., 1961),p. 20. 6. The SelectedWritingsofJohn and John QuincyAdams, Koch and Peden, editors (NewYork: Alfred A. Knopf,1946),p. xxxii. 7. Quoted in Gottfried Dietze, The Federalist:A Classicon Fed eralismand Free Government(Baltimore:The John HopkinsPress, 1960),p. 61. 8. Will Durant, The Story of Civilization,Part III: Caesar and Christ(NewYork:Simonand Schuster,1944),p. 165. 9. Gottfried Dietze,America'sPoliticalDilemma:From Limited to UnlimitedDemocracy(Baltimore:The JohnHopkinsPress,1968), p.14. 10. Alexis de Tocqueville,DemocracyIn America, J. P. Mayer, editor (NewYork: Anchor Books,1969),p. 692.