Discretionary Government

And the men who spurred us on
Sit in judgment of all wrong
They decide and the shotgun sings the song
--The Who

In societal contexts, laws are rules of conduct that are enforceable by a governing authority. In order for a law to be enforced, the authority must compare an individual's behavior to the rules. The authority then renders judgment as to whether the behavior was legal or not. If the behavior is deemed illegal, then the individual has 'broken the law' and is subject to reprimand by the authority.

Clearly, an important feature of law is the extent to which it can be consistently interpreted. If interpretation is subject to personal whim, then law is arbitrary. Arbitrary law is enforced at the discretion of the authority.

Arbitrary law is not really law at all, as it leads to societies where despots, rather than laws, rule.

The founding of the United States was steeped in this understanding. The colonists had experienced the woes of discretionary government firsthand. They knew that a nation conceived in liberty could not persist under arbitrary rules. Their intention--to be a nation governed by laws rather than by men--pervades historical records of the founding period.

The product of their intention was the Constitution. As the supreme law of the land, the Constitution limited central government authority so as to reduce the likelihood of discretionary power. The powers granted to the federal government were carefully specified. A system of checks and balances sought to restrain any branch from assimilating discretionary power.

An ingenious design--one intended to persist with the ages. But only effective if followed.

The ink was barely dry on the Constitution before those interested in harnessing discretionary power began pursing ways to evade the limited government principles. This pursuit reached a critical mass during the Progressive era. It was during this period that those who sought discretionary power broadly criticized the Constitution and those who developed it as being out of step with modern times.

Congress learned that they could pass laws by ignoring Constitutional principles, or by interpreting snippets of the Constitution out of context. The president learned learned that he could rule by decree via a morass of executive agencies, and that he could 'pack the court' with judges willing to interpret law in his party's favor. Disinterested judges became a thing of the past; judges learned that interest pays.

Today, the rule of law has been replaced by discretionary government. The principled Constitution has been replaced by arbitrary rule--rule that is for sale to the highest bidder.

We give lipservice to liberty while practicing despotism. Absent a return to the rule of law, the result will surely be chaos.