The Rule of Law Is Even More Important Than Democracy

 

Democracy is a good idea. But it is neither the only good idea nor the most important one. To protect everyone from governmental mistreatment, the rule of law is much more important than democracy.

Democracy gives voters only limited and slow influence over government. It isn't "government by the people." Governing requires power, power requires organization, and the ability to make day-to-day decisions on behalf of any organization always becomes concentrated in the hands of a few individuals.

This "iron law of oligarchy" was originally formulated by a sociologist who studied democratic political parties.

All governments being oligarchical, democracy merely limits what the individuals who are ruling can get away with. Democracy employs competitive elections where people striving for power bid against one another for voter support. Democracy is rule by SOME people, limited by THE people.

Democracy can usually protect a majority of the people from being abused by government but doesn't prevent government from abusing minorities or disfavored individuals.

Furthermore, people have limited ability to know how to vote in their own interests. They choose leaders based on images projected through mass media rather than on personal acquaintance. These leaders will work within circumstances that couldn't be predicted when they were elected. Voters must guess who will do the best job.

Although voters may replace top officials, this is a far cry from changing government's overall behavior. Like a steamship, government has tremendous inertia — a tendency to keep on doing what it is already doing — and is difficult to turn around.

Only over time can persistent voters steer the political ship in a radically new direction.

Protection from abuses that democracy cannot guarantee is provided by the rule of law. The rule of law, as I understand it, requires that government impose sanctions (deprivations of life, liberty, or property) only upon people duly convicted of violating a truly general rule of action.

To be truly general, legal rules must apply to everyone, not just selected parts of the population. No sanctions can be imposed on black people for actions other races are free to take. Government cannot exterminate Jews or put Japanese-Americans in concentration camps.Government cannot imprison or fine women for actions which men can take freely.

The rule of law's requirement that sanctions be imposed only for violating a really general rule of action protects individuals and minorities. Those who govern must be subject to the same rules, ample motivation not to enact intolerable ones.

And this is true whether or not the government is democratic.

We need to be especially careful not to let existence of democracy become an argument against the need for the rule of law, including its vital procedural requirement, due process of law. All government power, including democratic power, is liable to be misused. As Alexis deToqueville wrote, a generation after the Constitutional Convention of 1787:

"If it be admitted that a man possessing absolute power may misuse that power. . . , why should not a majority be liable to the same reproach? Men do not change their characters by uniting with each other. .... For myself, when I feel the hand of power lie heavy on my brow, I care but little to know who oppresses me; and I am not the more disposed to pass beneath the yoke because it is held out to me by the arms of a million men."

If a presidential administration claims it need not guarantee due process of law (as protected by two separate clauses in the Constitution) because a democratic majority elected it, we must give that administration our undivided. . . suspicion.

Was this what Donald Trump was claiming when he tweeted "The Supreme Court is not allowing me to do what I was elected to do"?

We are born into an existing political order. We generally can't choose the form of government under which we will live. But if we did have a choice and couldn't have both types of protection, it would be rational to prioritize the rule of law over democracy.

Why The Civil Service Merits Protection and Appreciation

The federal and state bureaucratic agencies are perhaps the least interesting (to the average American) and some of the most important parts of our government. The recent attacks on the so-called "deep state" have targeted the people employed by these agencies with the express intention of "terrorizing" them---firing them wholesale and trying to scare them into resigning.

To understand why these attacks are a bad idea we need to look at the history of the civil service.

Originally, the federal government employed very few people, an estimated 300 in 1790. The number has gradually increased to over two million people since 1980. Of course the total U.S. population has increased similarly.

Originally presidents were free to employ people as they wished, and handing out federal jobs soon became an import lever for building political support. President Andrew Jackson enthusiastically used this power to bolster his power, proclaiming that "to the victors belong the spoils." Federal employees were often asked to contribute money to the president's political campaigns, and ignoring these "requests" could bring dismissal.

Although early presidents surely did not willfully appoint incompetent people to federal jobs, they placed a higher value on political loyalty than on ability.

As federal civilian employment gradually increased, the power to hand out jobs became more and more important. President Jackson was dismayed to find that John McLean, his inherited Postmaster General, did not approve of the spoils system. Yet the Post Office was a principal location of patronage jobs in those days. Rather than firing McLean, which would have been politically costly, Jackson solved his problem by appointing McLean to the Supreme Court!

After the Civil War, when the federal civilian employment began increasing rapidly, a turning point came after President James A. Garfield was assassinated by a disappointed job-seeker. Under his successor, Chester Arthur, Congress enacted the Pendleton Act, the beginnings of our modern merit-based civil service.

The Pendleton Act shifted from the "spoils system" to a merit system based on competitive exams. It created a Civil Service Commission to administer the exams and protect federal employees from being fired for their political beliefs or partisan loyalties. Although at first the Pendleton Act applied only to a few federal jobs, it was gradually extended to protect nearly all jobs below the highest executives in each department.

More recently, additional federal legislation, the Hatch Act of 1939, limited the right of federal civil servants to engage in partisan politics. This legislation protected civil servants from being pressured for money or political support by their bosses.

Still further federal legislation required state governments to enact similar civil service protections for their employees if they wanted to continue receiving funding from the federal government.

All in all, the merit based civil service system that resulted from these reforms allowed the federal government to wage World War II very effectively and to maintain national security during the Cold War years (1945-1991). Scientific research conducted by civil servants or by private corporations and universities under contracts negotiated by civil servants have stimulated our economy with developments like radar, computers, and the internet.

Although it is fashionable to criticize "bureaucrats," it is impossible to understand modern government without understanding their importance. Our contacts with government are largely with bureaucrats and most day to day government decisions are made by bureaucrats.

Despite the widespread impression that bureaucrats are incompetent paper-shufflers who cannot write or read plain English, their organizations are extremely efficient. Their very sluggishness in dealing with nontypical cases is a side effect of the rules by which they deal efficiently with routine problems, and one person's "red tape" is another person's protection from arbitrary treatment by powerful government officials.

And most of them don't just process paperwork. My own father, like many other federal civil servants, was a technical expert--in his case as an electronics engineer working on military projects for the Defense Department.

Rather than demonizing bureaucrats, we owe them our gratitude.

Have you hugged a bureaucrat lately?

Trump's Vendetta Against Wind Power May Boost Solar Energy

Ironically, Donald Trump's attacks on wind turbines could hasten the day when we stop burning coal, oil, and gas.

Trump is also less than enthusiastic about solar energy, the other main green source. But his special vendetta against wind power will increase investments in solar.

The economics of green energy has been rapidly changing. An older way to harness the sun was "concentrated solar power" (CSP). In the past CSP was much cheaper than PV panels. CSP is not becoming more expensive, but PV panels are now much cheaper than CSP.

In concentrated solar power (CSP) large fields of mirrors concentrate sunlight on a small target, heating it up and generating steam. The steam runs a standard turbine to generate electricity. CSP facilities, like wind turbines, require large amounts of materials to construct. They also need considerable maintenance . PV panels minimize needed materials, generate electricity directly, and require little maintenance.

Things have reached the point that at least one giant CSP installation will be torn down because it is no longer economically rational to operate it.

There are two kinds of wind turbine installations: on land, and in the oceans. Ocean-based turbines cost considerably more than land-based ones. During the last twenty years the cost of PV panels has plunged to the point that the electricity they produce is cheaper than any alternative except land based wind. It is already cheaper than electricity from ocean-based wind and from burning coal, oil, or gas.

The Wall Street J. reports that "Since 1990, the cost of wind power has dropped by about 4% a year, solar energy by 12% a year and lithium-ion batteries by about 12% a year." Since PV costs are going down three times as fast as the cost of wind turbines, most likely they will soon nose out land-based wind and become the cheapest source of electricity.

If wind turbines turn out, like Concentrated Solar Power, to have been bad investments, then Mr. Trump's attempts to halt construction of additional wind turbines could save investors a lot of money. And the less invested on wind turbines, the more is available for PV panels.

A mixture of solar and wind power does have one advantage, because wind power is often most available at night, whereas solar energy is produced during daytime when winds tend to blow less.

The advantage to a mixture of the two technologies will only last while local areas must rely on locally generated electricity. But this advantage won't last forever.

Larger and larger distribution grids are being built around the world. In due courser they will be connected to each other. A worldwide grid will allow us to power the world entirely with solar energy, with little need for wind power to replace locally available solar energy during the night.

This is just my best guess, since even experts find it difficult to predict how future technology will develop. According to Nevil Shute, an aeronautical engineer before becoming a novelist:

"It was generally agreed in 1924 that the aeroplane would never be a very suitable vehicle for carrying passengers across oceans, and that airships [ blimps] would operate all the long-distance routes of the future. We were all quite wrong, of course, but at that time it seemed reasonable; no aeroplane had yet succeeded in crossing the Atlantic from east to west whereas a German airship, the Graf Zeppelin, was already carrying commercial loads of passengers both ways to South America upon a regular schedule."

Or as Yogi Berra put it: "It's tough to make predictions, especially about the future."

If Donald Trump's attacks on wind turbines hasten the day when the world stops burning coal, oil, and gas, it will reflect the difficulty today's energy giants face in knowing where their bread is buttered. .

The money invested in Trump's election by these coal, oil, and gas interests may turn out to have been suicidal. One can hope.

Contracts: A Fundamental Element of Modern Civilization

Contracts: A Fundamental Element of Modern Civilization

During the cancellation of federal government programs, payments were recently halted for work that private contractors had already completed. Cancelling a contract is serious but not always unthinkable. But refusing to pay for contracted work that has already been done is an outrage for which there is an appropriately negative term: stiffing.

The sanctity of contracts is fundamental to modern civilization. Recognition of this principle goes back centuries, and is summarized in the Latin expression pacta sunt servanda---"agreements must be kept."

Contracts are necessary to enable human cooperation, especially the large scale cooperation allowing us to live productive, peaceful lives. As Gordon Tullock explains in The Logic of the Law:

"It is clear that situations in which making such an enforceable promise is desirable are fairly frequent. I wish to buy a house and do not have enough money to do so. Borrowing the money will improve my satisfaction, but in order to do so I have to convince the lender that I will repay. Perhaps I can get away with an unenforceable promise, but for most people such loans are only possible if there is some mechanism to enforce the repayment."

Enforcing contracts is one of government's main functions, so important that contract law is a required course for first year law students. Even the countries governed by Communists during the Cold War, where private enterprise was illegal, had provisions for enforcing contracts between different state enterprises.

Contract law was therefore the main class that I audited during my 1970-1971 sabbatical at the Harvard Law School. My focus that year was voluntary associations, which are created by mutual consent of their parties to the exchange or transfer of inducements. Contracts are a critically important type of voluntary association precisely because they are legally enforceable.

During my sabbatical I also attended classes on Corporations and Labor Law. Labor Law focuses on collective bargaining contracts between unions and employers, while corporations are based on complicated contracts between the different parties making them up.

Upholding contracts is so important that our founding fathers inserted the following words in the Constitution: "No state shall ....pass any ... law impairing the obligation of contracts." (Article I, section 10)

Without government, terms of voluntary associations would not be enforceable. Government thus allows voluntary associations on a scale otherwise impossible. It is no exaggeration to say that private enterprise rests on public foundations.

It is bad enough when private individuals or corporations stiff their workers or organizations with which they have done business, although as we all know this is not uncommon. There are some well-known people from whom the prudent will demand payment in advance.

But when a government stiffs private contractors who have completed their assignments it is especially alarming. A government's bonds are a contract with the people who buy them. If it can repudiate its public debt , as some members of Congress have repeatedly threatened to do during showdowns over the national debt limit, no one will lend it money.

If government employment is going to be substantially downsized, getting essential work done will required contracting more of it it out to private companies. They will be reluctant to bid on this work if they doubt they will get paid for it.

We praise individuals whose word is "as good as their bond." Government's word, given in the contracts it makes, needs to be as good as its bonds.

And government should not just abide by its formal contracts. What about U.S. promises of refuge for Afghanistanis who helped our forces during the war? They will be slaughtered if forced to go back there, which may be about to happen. But if we stiff allies, who will help us in future wars?

A government should set a good example to the people it governs. "Pacta sunt servanda" remains an old reminder of a principle that is still all too relevant.

Cumulative world installed PV in peak gigawatts, by year 2000-2023

Source:  "Growth of photovoltaics" article, Wikipedia  

Year     GW

2000    1.2

2001    1.5

2002    1.8

2003    2.4

2004    3.4

2005    5.0

2006    6.5

2007    9.0

2008   15.3

2009    23.6

2010    41.6

2011    73.9

2012   104.2

2013   141.4

2014   180.8

2015   229.1

2016   301.2

2017   396.3

2018   492.6

2019   595.5

2020   728.4

2021   873.9

2022   1,073.1

2023 1,419.0