- Feb 12, 2007
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In many threads on the economy and our political culture, members blame Corporations, Lawyers, Wall Street etc. for the damage being done to The Constitution via undo influence on the government. These are off the mark. The problem is far more insidious: the 4th Branch of Government aka the Unelected Regulatory Bureaucracy.
The following link is to a rather long piece which frames the issue The Rule of Law vs. The Discretion of Regulatory Bureaucrats. The first is fixed and knowable, limiting government power to force compliance with political views. The latter is ambiguous and easily abused for political purposes. The Tyranny of the Bureaucracy began decades ago, and is currently snowballing to the point where Constitutionally protect liberties are at high risk. The author includes examples of various regulatory agencies, and how they use vagueness to ensure silence and political compliance.
I highly recommend reading the entire piece.
http://faculty.chicagobooth.edu/john.cochrane/research/papers/rule of law and regulation essay.pdf
Excerpts:
Rule of Law: the Devil in the Details
“Rule of law” and “regulation” are dangerous Big Vague Words. The rule of law is so morally
powerful that the worst tyrants go through the motions. Stalin bothered with show trials. Putin
put Pussy Riot on trial, and then they were “legally” convicted of and jailed for the crime of
”hooliganism.” Even Henry the Eighth had trials before chopping heads. Is this not rule of law?
No, of course, but it’s worth reminding ourselves why not as we think about bureaucracies
(snip)
“Rule of law” is not just about the existence of written laws, and the superficial mechanics of
trials, judges, lawyers, ad sentences. Rule of law lies deep in the details of how those
institutions work. Do you have the right to counsel, the right to question witnesses, the right to
discovery, the right to appeal, and so forth. Like laws, what matters about regulation, both in its
economic efficiency and in its insulation from politics, is not its presence but its character and
operation.
Regulators write rules too. They fine you, close down your business, send you to jail, or merely
harass you with endless requests, based on apparently written rules. We need criteria to think
about whether “rule of law” applies to this regulatory process. Here are some suggestions.
• Rule vs. Discretion?
• Simple/precise or vague/complex?
• Knowable rules vs. ex-post prosecutions?
• Permission or rule book?
• Plain text or fixers?
• Enforced commonly or arbitrarily?
• Right to discovery and challenge decisions.
• Right to appeal.
• Insulation from political process.
• Speed vs. delay.
• Consultation, consent of the governed.
The following link is to a rather long piece which frames the issue The Rule of Law vs. The Discretion of Regulatory Bureaucrats. The first is fixed and knowable, limiting government power to force compliance with political views. The latter is ambiguous and easily abused for political purposes. The Tyranny of the Bureaucracy began decades ago, and is currently snowballing to the point where Constitutionally protect liberties are at high risk. The author includes examples of various regulatory agencies, and how they use vagueness to ensure silence and political compliance.
I highly recommend reading the entire piece.
http://faculty.chicagobooth.edu/john.cochrane/research/papers/rule of law and regulation essay.pdf
Excerpts:
Rule of Law: the Devil in the Details
“Rule of law” and “regulation” are dangerous Big Vague Words. The rule of law is so morally
powerful that the worst tyrants go through the motions. Stalin bothered with show trials. Putin
put Pussy Riot on trial, and then they were “legally” convicted of and jailed for the crime of
”hooliganism.” Even Henry the Eighth had trials before chopping heads. Is this not rule of law?
No, of course, but it’s worth reminding ourselves why not as we think about bureaucracies
(snip)
“Rule of law” is not just about the existence of written laws, and the superficial mechanics of
trials, judges, lawyers, ad sentences. Rule of law lies deep in the details of how those
institutions work. Do you have the right to counsel, the right to question witnesses, the right to
discovery, the right to appeal, and so forth. Like laws, what matters about regulation, both in its
economic efficiency and in its insulation from politics, is not its presence but its character and
operation.
Regulators write rules too. They fine you, close down your business, send you to jail, or merely
harass you with endless requests, based on apparently written rules. We need criteria to think
about whether “rule of law” applies to this regulatory process. Here are some suggestions.
• Rule vs. Discretion?
• Simple/precise or vague/complex?
• Knowable rules vs. ex-post prosecutions?
• Permission or rule book?
• Plain text or fixers?
• Enforced commonly or arbitrarily?
• Right to discovery and challenge decisions.
• Right to appeal.
• Insulation from political process.
• Speed vs. delay.
• Consultation, consent of the governed.
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