How Washington Thinks

December 21, 2000

I think it was the Roman historian Tacitus who wrote, “A corrupt society has many laws.”

You don’t hear that observation quoted in Washington very often. Here the demand is always for more new laws, more new programs, more new regulations. There is no such thing as too much government — or even enough. Anyone who suggested that maybe we already had all the government we needed in the days of (say) Jimmy Carter would be deemed a right-wing extremist.

In Washington every new imposition on the freedom of the citizen and the money of the taxpayer is hailed as an “achievement” or “accomplishment,” and a really hellacious one is considered a “legacy.” A few years ago, Bill Clinton hoped that his “legacy” would be a huge national health-care program. (That was before Monica.)

The idea that the job of government is basically maintenance — enforcing existing laws, which should be kept minimal — is as alien to Washington as the cult of Isis. Today the big question around town is whether George W. Bush will be able to “govern,” but “governing” doesn’t mean what it used to mean; it means ramming new laws through Congress, whether they are needed or noxious. Perish the thought that what we really need is the repeal of most of the laws on the books!

New laws are often justified in the name of “rights,” as in: “Every American has a right to basic health care.” In Washington, any sentence containing an assertion of a “right” is accepted as self-evidently true. Nobody asks what the obverse of the proposition is. Washington has never heard of obverses.

But the obverse of the statement that any man has a “right” to health care is that another man has an obligation to pay for it. In fact, if it’s a genuine right, it’s being violated at this very moment by that other man’s failure to provide it (through the benevolent medium of government, of course). Furthermore, this supposed right has been violated constantly throughout human history, since most people and their rulers never even heard of it.

Fortunately, this particular “right” didn’t catch on, because enough people realized that it would be pretty expensive to enforce. So when the Clinton health-care plan bombed, it sort of just evaporated. Today few people talk about health care as a right, and nobody seriously maintains that this supposed right is being violated by our failure to force the taxpayer to pay for it. In other words, nobody, not even its advocates, really believed it was a right in the proper sense of the word.

Few laws, especially federal laws, meet the standard of necessity. And unnecessary laws are worse than superfluous: they are tyrannical. That’s why the original federal system was designed to frustrate most attempted legislation by establishing an obstacle course of divided powers. A federal law has to pass two houses of Congress and a president; and it must also meet the standard of constitutionality, by being comprehended in the powers actually assigned to Congress in the Constitution (especially Article I, Section 8).

But in its infinite wisdom, the federal government has decided that this last requirement is far too inhibiting to this nation’s legislative talent pool, so it has been dropped. Today the federal judiciary generally agrees that if Congress feels like doing something, it must, ipso facto, be constitutional. So the U.S. Supreme Court strikes down state and local laws every day of the week, but acts of Congress almost never. If Congress had adopted socialized medicine, the absence of any clause in the Constitution authorizing it would have bothered the Supreme Court not a whit.

The Constitution was designed to protect our liberty not so much by enumerating our rights — the Ninth Amendment makes it clear that its list of rights wasn’t meant to be exhaustive — but by specifying the proper powers of the federal government. And the Tenth Amendment makes it clear that the enumeration of federal powers was meant to be exhaustive.

But today’s Washington is about as attentive to the Tenth Amendment as the Unitarian Church is to the Book of Revelation. The result is many laws. Far too many. And we can expect many more.

Joseph Sobran

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