Lawless: Obamacare and Federal Power

When referring to the nationalizing of medicine known as the Affordable Care Act, Speaker of the House Nancy Pelosi said, “We have to pass the law to see what’s in it.”

“[Law] is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated,” said Thomas Aquinas, defending the claim that promulgation is one of the essential characteristics of law (Summa Theologiae, Ia.IIae., q. 90, a. 4).

We should not suppose that promulgation is necessary only as a practical matter, since it is not possible to be certain that one is obeying the law unless one knows what the law is.  It is also necessary because law is meant for rational beings.  It is not something extrinsic to the lawgiver or the law-receiver, for “the proper effect of law is to make those to whom it is given, good, either simply or in some particular respect” (q. 92, a.1), by the virtue it inculcates.  Since virtue is a habit in accord with reason, the law must be capable of entering into the minds of those who must obey it, not so that they may deliberate about it, since the deliberation will already have been completed, but so that they may order themselves by it.  For example, “the natural law is promulgated by the fact that God has instilled it into man’s mind so as to be known by him naturally” (q. 90, a.4).  Jonathan Swift understood the point, writing in Gulliver’s Travels of the well-governed Kingdom of Brobdingnag, whose laws could not exceed in words the number of letters in the alphabet, “wherein those people are not mercurial enough to discover above one interpretation.”

A law need not be clear in all of its particulars to every subject in the land.  But if no one can possibly know what the law entails, how can it be a law at all?  What power does it have as law if we must wait until a judge somewhere draws forth a mazy line of rhetorical deduction to arrive at the interpretation he preferred at the outset?  When even those who are charged with representing the people do not know the law because it runs to thousands of pages, with thousands more to come by way of regulations whose establishment the law requires?  Such a creature cannot appeal to reason, nor can it have been the rational work of those who are charged with making the law, nor can it ultimately be ordered to the common good, even in the unlikely case that it should prove to be generally beneficial, since the common good is also a good for rational beings and not for mere electoral matter.

But I think it is not enough to say that the Affordable Care Act is no law, by Thomas’s definition.  We must give the daft Speaker due credit.  So says Larry Arnn, president of Hillsdale College, in the most recent publication of the college’s newsletter, Imprimis.  For our representatives have long ceded to cadres of lawyers the writing of bills that no one can read, much less grasp in their entirety, and have ceded to bureaucrats the actual fleshing-out of the bills, so that indeed no one can possibly know what the law really is until that vast machinery of the executive power infuses it with blood and covers it with flesh, or rather with a triple armor of insulation against the chances and changes of electoral politics.  We still call them “laws,” and in some sense they are, since we have to obey them, just as in some sense a cancer cell is a cell and a part of the body, even though its aim is to devour it.

Such a system, President Arnn suggests, is like the Ring of Gyges that Socrates describes in Plato’s Republic.  The reader may recall the situation.  Socrates is having a conversation about justice with two young noblemen, Glaucon and his brother Adeimantus.  Glaucon has been pressing Socrates to defend the reality of justice against the gruff and sneering arguments of the sophist Thrasymachus, who says that “justice” is only the will of the strong.  What the king or the archon or the chief justice or the secretary says justice is, it is, and that is that.  “Conscience is but a word that cowards use,” cries Richard III on the morning of his disastrous battle at Bosworth Field, “invented first to keep the strong in awe!”  If the tyrant Richard and the tyrant-cuddler Thrasymachus are right, then all our inveighing against the injustice or indeed the illegality of the monstrous things that now go by the name of “law” are all so much futile waste of breath.

So Socrates tells a story about Gyges, a shepherd, a nobody, who one day found a ring with a special property.  If he placed it on his finger and turned it one way, he became invisible.  If he turned it the other way, he became visible again.  Gyges took stock of the stroke of luck, and used the ring to seduce the queen, kill the king, and become ruler of the realm in his place.  The question is, “If we could do what we will and get away with it, if in effect we had a Ring of Gyges, what should we do?  What would ‘law’ or ‘justice’ mean to someone with that insuperable advantage?”

Arnn’s point is that government by bureaucracy, by lawyers litigating the details of any one of the hundreds of thousands of regulations in the Federal Register, or by judges who themselves cannot possibly read or comprehend the laws upon which they are to pass judgment, functions as an all-encompassing Ring of Gyges.  No one knows what the lawmakers, that is, the hundreds and hundreds of thousands of secretaries and undersecretaries in departments and offices at all levels of government, are doing, or even who they are.  The lawmakers themselves do not know what they in the aggregate are doing, or who they are.  They might be, individually, as virtuous as Socrates; but they would still be not transparent, but invisible, impossible to see.

And how likely is it that they will be as virtuous as Socrates?  For they cannot be wholly unaware of their privileged position.  Does anyone know the whole of the IRS’s actions?  Can anyone know it?  If an IRS commissar sends a vaguely worded obliviscendum to an underling, to the effect that certain people engaged in certain political activities might merit a somewhat more acute investigation of their businesses and their charitable donations, who is to know?  A paper trail is almost meaningless when you are suffocating under an ocean of paper.  It is not that the paper trail leads nowhere.  It leads anywhere and everywhere.  It is not that there is but one possible trail.  There are innumerable possible trails.  And I do mean innumerable.  The factorial function comes into play: one department chief multiplied by two aides, three secretaries, four division chiefs, five division assistants, six subdivision heads, seven liaisons, eight coordinators, nine principals and ten people on the ground—a tangle among only ten strata, gives you the number 10!, which is 3,628,000.  The number 20!, I believe, is greater than the number of stars in the universe.

The devil is in the details, as the saying goes.  Such a system leaves all the details up to bureaucratic devils, with a vast field of play, and virtually no accountability.  It is a Ring of Gyges.

What can citizens do about it?  Nothing at all, unless they begin to recognize what it is: Jabba the State, I call it.  It knows no limits.  It has a diseased life of its own.  It shares its prime directive with all creatures, including cancers: it must survive.  Its second directive is like unto the first: it must grow, and reproduce.  It appears to be run by the people, but that is a bad joke; the people, no matter how they cast their vote, are afraid of it, and believe it capable of all evil.  It has more influence over what enters the mind of a child—your child, reader—than the King of England in the Middle Ages had over anything at all, including the customs duties that filled his coffers and the military escapades of his own dukes and earls.

It retains the outward show of a democratic republic, and indeed makes a noisier display of democratic machinery, such as elections, than ever before.  But it is not a democratic republic.  It is something else.  Its tentacles are legion, and they strike deep.


Anthony Esolen, a contributing editor at Crisis, is a professor and writer-in-residence at Magdalen College of the Liberal Arts. He is the author, most recently, of Sex and the Unreal City (Ignatius Press, 2020).

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