What happened to consent of the governed?

I am thankful that throughout my life my interaction with the administrative state has been confined to the routine. Obtaining a driver’s license, filing taxes, and filing my marriage license.

Recently I have had a friend get caught up in the administrative state. I won’t go into details but essentially it boils down to an administrator acting as judge and jury for the rules and regulations their administration created and executing those decisions.

These decisions impacted my friend’s personal life on a level to which the government was never meant to interfere. This administrative agency combines the powers of the judiciary, the legislature, and an executive, yet remains un-elected and largely unaccountable to the people.

Consent of the Governed

 

In the American system of government the consent of the governed is obtained through voting for representatives. These representatives are imbued with a part of the power of each individual person through an election.

These representatives, imbued with this power, create laws and administer various functions of the government. If the people believe their representative is doing a bad job, lacks sufficient character, or they generally do not like the person they are free to select a new representative when their term is up.

These representatives must repeatedly return to the people to renew this consent to represent them. This means that representatives are accountable to the people they represent and only have power in so far as it has been granted to them by the consent of the people.

The Loss of Consent

The administrative state does not operate with the consent of the governed. Instead they claim their authority from expertise. This allows administrators to remain insulated from the ‘dirty business’ of politics. This insulation from the consent of the governed was not produced by accident, but rather a key feature of the Progressive system of politics and administration.

 

The Progressives believed that if they could empower experts and remove them from having to deal with running for elections, then those experts would be able to make the right decisions and could use the power of the government to solve the problems of their time.

In order to achieve this, Progressives needed to reject the ideas of the Founders. Chiefly the ideas of the consent of the governed and the separation of powers. By ‘freeing’ experts from politics to focus on administration, they dispensed with the consent of the governed.

Unification of Powers

The Progressives believed that the separation of powers was both inefficient and irresponsible. They thought it was inefficient because it would take a long time to get anything done. They considered it irresponsible because it made it difficult for popular will to be translated into government action.

The solution was to combine the powers of government (legislative, judicial, and executive) into administrations headed up by experts (rational educated progressive people) who could use the power of government filtered through their expertise to solve the problems of a modern world.

We see this today in the various administrative agencies, who can make rules and regulations that have the power of laws, often are able to act as judges for disputes that arise due to those rules and regulations, and can take action to enforce rules and regulations or impose punishments on those who violate them.

At the same time the Progressives did away with the separation of powers, they focused on increasing democratization of politics. This was to amplify the power of public opinion (majority faction) in politics.

The paradox of this Progressive model of politics and administration is that while it increases the volume of public opinion in politics, it removes the power of that opinion from almost any influence it would have on administration.

Meaning the power of the administrative state is separated from the consent of the governed. Yes we get to vote for President and for Congress and for Governors but we do not get to vote for the head of the EPA. The people we vote for do not debate each other and create laws, the EPA simply produces them out of thin air.

We can voice our opinions louder and we have some impact on the administrative state but if the expert in charge of an administrative agency decides to ignore the will of the people, there is very little to almost zero recourse for the people. They do not require our consent to exercise all the powers of government, instead they claim their authority from their expertise.

Human Nature

This near worship of expertise denies something the founders understood clearly. That no matter how much of an expert any individual was, in the end they are still a human being. A human with all the same flaws, faults, interests, emotions, and capacity for good and evil as any other person.

This is why the separation of powers and the consent of the governed are so important. The consent of the governed allows the people to invest their power into another human being. They can take into account the nature of the person and decide if they are the right person to entrust with their representation. 

The separation of powers is important because it helps protect the rights of the individual (the greatest minority) and provides a tempering for the passions of the people as well as a restraint on the power of those who are entrusted with governing.

In order to have a representative government, meaning a government by the consent of the people, you must have a limited government. If the government is larger than the people than it is no longer representative of the people but represents those in government. It is not merely the size of the government that poses a problem but also the manner and structure of that government.

Our government by the consent of the governed is slipping away and instead of working to restore that limited form of government we have been more interested in fighting over who controls an ever increasingly powerful administrative state. Now is the time to make the choice, do we want the liberty to pick up the responsibility to solve the problems of our times ourselves or do we want to entrust our life, liberty and happiness into the hands of administrative experts?