Mark Steyn - After America

And far from the ballot box, alternative sources of power arose.

Behind our left-wing legislators are lefter judges. In a country where every other institution has lost legitimacy, only our robed rulers still command widespread deference. So these days the left advances its causes more effectively through the courts than through elections, for the fairly obvious reason that very few people are dumb enough to vote for this stuff. The judiciary legislates fundamental issues—abortion, gay marriage, illegal immigration, health care—and thereby supplies electoral cover for Democrats. As Nancy Pelosi explained, “It is a decision of the Supreme Court. So this is almost as if God has spoken.” 77So that’s that. Love to help you, says Nancy, take your point, but there’s nothing I can do.

That’s not how Abraham Lincoln saw it: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers.” 78

Which they have.

America is unique in this regard. In Europe, if the establishment wants to invent a new “right”—that is, yet another intrusion by government—it goes ahead and does so. If it happens to conflict with this year’s constitution, they rewrite it. But the United States is the only western nation in which the rulers invoke the Constitution for the purpose of overriding it.

What Judge Bolton in the Arizona immigration case and Judge Walker in the California marriage case share with Mayor Bloomberg’s observations on popular opposition to the Ground Zero mosque is a contempt for the people. Popular sovereignty may be fine in theory but not when the citizenry are so obviously in need of “re-education” by their betters. The alliance of political statists and judicial statists is moving us into a land beyond law—a land of apostasy trials. The Conformicrats have made a bet that the populace will willingly submit to subtle but pervasive forms of re-education camp.

Over in England, London’s transportation department has a bureaucrat whose very title sums up our rulers’ general disposition toward us: Head of Behavior Change.

In 2008, when the Canadian Islamic Congress attempted to criminalize my writing north of the border by taking me to the “Human Rights” Commission, a number of outraged American readers wrote to me saying, “You need to start kicking up a fuss about this, Steyn, and then maybe Canadians will get mad and elect a conservative government that will end this nonsense.”

Made perfect sense. Except that Canada already had a Conservative government under a Conservative prime minister, and the very head of the “human rights” commission investigating me was herself the Conservative appointee of a Conservative minister of justice. Makes no difference. Once the state swells to a certain size, the people available to fill the ever expanding number of government jobs will be statists—sometimes hard-core Marxist statists, sometimes social-engineering multiculti statists, sometimes fluffily “compassionate” statists, sometimes patrician noblesse oblige statists, but always statists. The short history of the post-war western democracies is that you don’t need a president-for-life if you’ve got a bureaucracy-for-life: the people can elect “conservatives,” as from time to time the Germans and British have done, and the left is mostly relaxed about it because, in all but exceptional cases (Thatcher), they fulfill the same function in the system as the first-year boys at wintry English boarding schools who for tuppence-ha’penny would agree to go and take the chill off the toilet seat in the unheated lavatories until the prefects were ready to stroll in and assume their rightful place. Republicans have gotten good at keeping the seat warm.

Thus, America in the twenty-first century—a supposedly “center-right” nation governed by a left-of-center political class, a lefter-of-center judiciary, a leftest-of-center bureaucracy, all of whom have been educated by a lefterooniest-of-all academy.

Liberalism, as the political scientist Theodore Lowi put it, “is hostile to law,” and has a preference for “policy without law.” 79The law itself doesn’t really matter so much as the process it sets in motion—or, as Nancy Pelosi famously told the American people regarding health care, “We have to pass the bill so you can find out what’s in it.” 80When Lowi was writing in the Seventies, he noted that both the Occupational Safety and Health Administration (OSHA) and the Consumer Product Safety Commission (CPSC) were set up by a Congress that didn’t identify a single policy goal for these agencies and “provided no standards whatsoever” for their conduct. So they made it up as they went along.

Where do you go to vote out the CPSC or OSHA?

Or any of the rest of the unaccountable acronyms drowning America in alphabet soup. For more and more Americans, law has been supplanted by “regulation”—a governing set of rules not legislated by representatives accountable to the people, but invented by an activist bureaucracy, much of which is well to the left of either political party. As the newspapers blandly reported in 2010, the bureaucrats weren’t terribly bothered about whether Congress would pass a cap-and-trade mega-bill into law because, if faint-hearted Dems lose their nerve, the EPA will just “raise” “standards” all by itself. 81

Where do you go to vote out the EPA?

Congress stripped provisions for end-of-life counseling (the so-called “death panels”) out of the ObamaCare bill, but Kathleen Sebelius, the Secretary of Health and Human Services, put ’em back on her say so. 82And why shouldn’t she? As Philip Klein pointed out in the American Spectator , the new law contained 700 references to the Secretary “shall,” another 200 to the Secretary “may,” and 139 to the Secretary “determines.” So the Secretary may and shall determine pretty much anything she wants. Plucked at random: The Secretary shall develop oral healthcare components that shall include tooth-level surveillance . 83

“Tooth-level surveillance”: from colonial subjects to dentured servants in a mere quarter-millennium.

Where do you go to vote out “the Secretary”?

And so “We the people” degenerates into “We the regulators, we the bureaucrats, we the permit-issuers, we the czars.” Dancing with the czars is unrepublican. “Ignorantia juris non excusat” is one of the oldest concepts of civilized society: ignorance of the law is no excuse. But today we’re all ignorant of the law, from John Conyers and the guys who make it down to li’l ol’ you on the receiving end. How can you not be? Under the hyper-regulatory state, any one of us is in breach of dozens of laws at any one time without being aware of it. In a New York deli, a bagel with cream cheese is subject to food-preparation tax, but a plain bagel with no filling is not. 84

Except that, if the clerk slices the plain bagel for you, the food-preparation tax applies. Just for that one knife cut. As a progressive caring society, New York has advanced from tax cuts to taxed cuts. Oh, and, if he doesn’t slice the plain bagel, but you opt to eat it in the deli, the food preparation tax also applies, even though no preparation was required for the food.

Got that? If you’ve got a deli, you better have, because New York is so broke they need their nine cents per sliced bagel and their bagel inspectors are cracking down. How does the song go? “If I can make it there/I’ll make it anywhere!” If you can make it there, you’re some kind of genius. To open a restaurant in NYC requires dealing with the conflicting demands of at least eleven municipal agencies, plus submitting to twenty-three city inspections, and applying for thirty different permits and certificates. Not including the state liquor license. 85The city conceded that this could all get very complicated. So what did it do to help would-be restaurateurs? It set up a new bureaucratic body to help you negotiate your way through all the other bureaucratic bodies. Great! An Agency of Bureaucratic Expeditiousness! And, if that doesn’t work, they’ll set up an Agency of Bureaucratic Expeditiousness Regulation to keep it up to snuff.