A Government of Men, Not Laws

When our country was founded, one of the major complaints against King George and his minions was that they exercised arbitrary power and didn't follow due process of law.  The colonists didn't appreciate having to bow and scrape before

...swarms of Officers to harass our people and eat out their substance...

and who held the power to destroy a life's work on a whim.

To prevent government employees from exercising arbitrary power in the future, our founders wrote a Constitution which was supposed to be the supreme law of the land.  The Constitution listed a very few things that government could do and forbade government from doing anything else.

Who Rules - the Law or the King?

This wasn't the first time in history that a society had attempted to write laws that even the king had to obey, of course.  Genghis Khan, who united the Mongol tribes and conquered an empire that reached from northern China to the gates of Vienna, was enslaved in his youth.  His mother was kidnapped from her first husband and his wife was stolen for long enough that the paternity of his oldest son was always in question.

Realizing that he had to persuade his tribesmen to stop making war on one another for his regime to survive, he instituted a set of laws that even he had to obey.  It took a great deal of persuasion backed up by the odd execution here and there, but Genghis managed to form a unified nation which was loyal to one set of laws.  The fact that having a stable set of laws which were recognized over a 3,000 mile span of territory was good for business expanded the economy enough to keep his warriors contented.

After Genghis died, his youngest son's wife proved to be the most adept at politics and the Mongol empire ended up divided among her four sons.  Her youngest son Kublai got the smallest piece, the part of northern China which Genghis had been able to conquer.

Kublai turned out to be a better politician than warrior and he gradually took control of all of the rest of China through diplomacy, propaganda, and encouraging businesses.  His scheming was greatly helped by the legal system his grandfather had instituted.  The predictable legal system made Kublai's government much more acceptable to ordinary Chinese who feared the Sung dynasty's reputation for arbitrary decrees.

Businessmen who believed they'd do better under Kublai's stable legal system migrated to his territory where the taxes they paid helped fund his imperialistic notions; this virtuous cycle made his eventual victory seem more and more inevitable.  When Kublai finally stormed the Sung's capital city in 1276 after nearly two decades of scheming, his army included more Chinese allies than Mongol soldiers.¹

Unfortunately, Kublai's successors found it more convenient to rule by decree and did not maintain his practice of subordinating themselves and their government officials to well-defined laws.  Over time, their subjects became just as unhappy with arbitrary Mongol rule as the Americans were unhappy with arbitrary British rule and rebelled.  For all its glory, the Mongol dynasty didn't last very long.

The Death of Our Constitution

Most Americans have forgotten that the purpose of the Constitution wasn't to list the few rights the people had.  It listed the few rights the government had and reserved every other right to the people or to state governments.

Ever since President Roosevelt threatened to pack the Supreme Court with men who'd vote his way, the Court has interpreted the "commerce clause" of the Constitution to mean that government can do pretty much anything it wants to do.  Given this attitude, it's no surprise that various Presidents have tended to rule by decree whenever they could get away with it.

Henry Kissinger, who was President Nixon's Secretary of State, said, "The illegal we can do right away.  The unconstitutional takes a little longer"; or as his boss more pithily put it, "When the president does it, that means it is not illegal."

Having the Emperor, or President, or Prime Minister, subject himself or herself to the rule of law is a primary source of virtue in any society.  Rulers lead by example far more effectively than by words.  If the leaders are seen to obey the law, the people are much more likely to obey, but if the leaders don't have to follow the laws, why should the people follow when they can get away with breaking the law?

Let's contrast some of Mr. Obama's words with some of the actions of his administration.  Back when he was trying to appoint Tom Daschle to head his efforts to get Obamacare passed, it turned out that Mr. Daschle had cheated on his income taxes, just like our Secretary of the Treasury.  Mr Obama realized he had a public relations problem; the Times' "quote for the day" was:

I've got to own up to my mistake, which is that ultimately it's important for this administration to send a message that there aren't two sets of rules.  You know, one for prominent people and one for ordinary folks who have to pay their taxes." [emphasis added]

- President Barack Hussein Obama

Mr. Obama said that he'd learned that his administration has to convince people that there aren't two sets of rules, a relaxed set of rules for the elite where breaking the law is a justifiable "mistake" and rules for the rest of us where breaking the law means jail.  That's not news - Kublai Khan could have told him that, to say nothing of Jefferson or Hamilton.  Let's see how Mr. Obama's acknowledging his mistake is playing out.

GM and Chrysler Bankruptcy

Mr. Obama chose to push GM and Chrysler through bankruptcy in order to shed some of their obligations so they could continue to operate.  So far, so good.

Instead of following centuries of settled bankruptcy law, however, he chose to rob the senior creditors, who should have received the lion's share of the assets, and gave the companies to the United Auto Worker's Union.  When some of the creditors sued, he used political pressure to force them to withdraw.

Thus, he established that there are two sets of bankruptcy laws - one for normal creditors and another for unions who helped get Mr. Obama elected.  One reason American businesses are sitting on large piles of cash instead of lending it to established businesses is that they know that the legal system doesn't work properly any more.  If the company they lend to goes bankrupt, the administration may reallocate the assets to its friends instead of to the creditors who're legally entitled to them.  Far better to have the cash sitting in a bank account where a few keystrokes can whisk it out of Obama's reach.

BP Oil Spill Shakedown

When the Deepwater Horizon drilling platform sank and oil started to befoul the Gulf of Mexico, headlines screamed that the administration was planning to bring criminal charges against BP executives.  That's tricky because the prosecution has to prove that the defendant intended the crime to occur.  It would be pretty hard to show that BP intended the oil to spill, but our legal system has become so subject to political pressure that it's quite possible that the top dogs at BP could have been sent to jail on trumped-up criminal charges.

A funny thing hapened on the way to court, however.  Mr. Obama and Mr. Holder, his Attorney General, had a meeting with the head of BP after which BP announced that it would set up a $20 billion cleanup fund which would be under government control.  As if by magic, all talk of criminal charges died away.

Prying money out of BP by threatening criminal prosecution is extortion, pure and simple, just like paying the Mafia not to break your leg is extortion.

The difference is that if you pay the Mafia, you actually get protection.  Suppose you pay the Mafia not to trash your pushcart.  When someone else trashes you, the Mafia will explain to the perpetrator that it's not a good idea to mess with you.  Mr. Obama took the $20 billion and continues to vilify BP; they paid, but got no protection.

This is not to say that BP shouldn't pay, not at all.  BP is clearly liable for the cleanup, but the costs should be determined and compensation should be awarded according to due process of law, not through Presidential shakedown.  Are other foreign companies going to want to invest in the US when they know that the President will shake them down if they become unpopular?

Mr. Obama knows better, or at least his teleprompter does:

No business wants to invest in a place where the government skims 20 percent off the top, or the head of the port authority is corrupt. No person wants to live in a society where the rule of law gives way to the rule of brutality and bribery. That is not democracy, that is tyranny, and now is the time for it to end.   [emphasis added]

- President Barack Hussein Obama, on the need for reform in Africa, New York Times quote of the day, July 12, 2009

Mr. Obama is entirely correct that no one wants to live in a society where law gives away to extortion, but extortion is becoming his theme song - GM creditors, Chrysler creditors, now BP.

It's fascinating to note what he's doing with BP's $20 billion.  In "The US Drills Deep Into BP," one of the most descriptive headlines we've ever seen, the Wall Street Journal reports:

BP just received a $75,000 nonitemized bill for a one-day visit by Vice President Joe Biden to the New Orleans crisis center.

"We effectively work for the government here," BP's Mr. Dudley says.

It's one thing for the administration to try to get BP to pay for political travel - politicians have been asking big companies to fund junkets for a long time, but that's not all the Obama administration wants from BP:

Bob Dudley, BP PLC's lead executive in the Gulf of Mexico, spotted his U.S. government counterpart, retired Adm. Thad Allen, at the New Orleans hotel where both were staying earlier this month. Wanting to say good night after a long day, Mr. Dudley instead got fresh orders.

Adm. Allen said the government wanted BP to pay for community representatives in states affected by the oil-well blowout. "What does that mean?" Mr. Dudley asked. "I'm reluctant to agree without understanding what you are asking us to do." On Tuesday, the government ordered BP to set up such teams, which are designed to handle local concerns.

What are "community representatives?"  Mr. Obama got his start in Chicago politics working with "community activists" like ACORN which became notorious for signing up false voters and for advising a would-be madam only to claim a few of her child prostitutes as dependents on her tax returns.

When ACORN dissolved in disgrace, Mr. Obama was left without a partner who can sign up enough Chicago-style voters to steal the coming election.  His asking BP to pay for "community representatives" which will be under government control is an attempt to repair the setback to his plans.

It was left to USA Today to drop the other shoe, however.  Their page 1 story "Welfare agencies see wave of voters" explained that a 1993 law requires states to register voters at motor vehicle bureaus, welfare offices, and even at polling places on election day.

Voting rights advocates say millions of low-income people could be registered this way.  A U.S. Election Assistance Commission report in 2007-08 showed 21 states registered less than 1% of voters at welfare offices.  Only Vermont, Tennessee and New York registered more than 4% that way.

An increase could help President Obama and his party.  A USA TODAY/Gallup Poll in June showed 55% of Americans with incomes less than $20,000 like Obama's performance, tied for his best showing among income groups. [emphasis added]

Who'da thunk it!  Getting welfare agencies to register voters, whether real or imagined, might help President Obama and his party!  That's clearly front-page news.

Jason Torchinsky, a former Justice Department lawyer in the Bush administration, says liberal groups want welfare offices to replace the work of ACORN, a coalition of anti-poverty groups that disbanded this year after allegations of voter fraud.

"With the demise of ACORN, the left needs somebody to pick up that function," he says.

ACORN's wrongdoings were so egregious that not even its deep connections to Mr. Obama could save it.  ACORN was disbanded because of fraud, so the administration goes after the welfare offices and shakes down BP to pay for yet more "community representatives."

Kublai Khan's heirs lost their empire in large measure because they stopped following the rule of law and started ruling by decree.  King George III lost his American colonies in large measure because his officers didn't follow the rule of law and ruled by decree.

Americans are perfectly willing to be governed by the rule of law, but we don't appreciate tyranny.  With each violation of the law, Mr. Obama's lawlessness brings us one step closer to civil war.

1 Jack Weatherford, Genghis Khan and the Making of the Modern World, Three Rivers Press (New York, 2004) Chapter 8