Bad Government is also tyrannical government and undemocratic government. This is a constitutional problem. It is not always a problem with laws being "unconstitutional" in the sense of not according with our wonderful national constitution. Rather, it is often a problem of bad design, of poorly constituted government. Such bad government is a result of not applying basic principles of good government to the design of government from top to bottom.
That is why people can assert that things that are perfectly constitutional under our charter are somehow unconstitutional. They mean they don't like the way the government functions. However, the way we've constituted so much of our public and common governance of business, markets, resources, and infrastructure systems is not optimal.
We seem to have expanded our country since the founding in a way that has undermined, kicked problems of governance down the road, privatized them or actually undermined some of those founding principles. In the process we've confused or degraded the quality of the way our country is constituted, even if some of it is perfectly "constitutional" it is not always well constituted. Tyranny results from dysfunction and hierarchy. Combating tyranny requires the application of democratic, republican, commonwealth and Federal principles to government. This post deals with Democratic Republican principles, why they are and what they are.
Any government that is operated of, by and for the wealthy, an elite or that ignores principles of good governments; de-evolves into Tyranny. Tyranny is not only bad, cruel and harmful government, it is dysfunctional.
John Locke defined tyranny as:
"199. As usurpation is the exercise of power which another hath a right to, so tyranny is the exercise of power beyond right, which nobody can have a right to; and this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private, separate advantage. When the governor, however entitled, makes not the law, but his will, the rule, and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion."
Thomas Jefferson is said to have defined tyranny as;
"Tyranny is defined as that which is legal for the government but illegal for the citizenry."
There is no source for this quote in his writings so this one is apocryphal, but the quote maps to "private, separate advantage" so it is still a true statement about tryanny. And tyranny is basically bad governance. It may optimize things for the tyrant, but it is suboptimal for the system as a whole, the people who groan under a tyrants heel, and for the long term health and survival of the realm so governed.
The opposite of a tyrannical organization is one where the officers govern within the concept of the Commonwealth. I'll lay out principles of commonwealth in a separate post, but the common good is the opposite of "private separate advantage" so governing for the sake of the commonwealth is good government, embodies the principles of democratic republicanism, and also provides the field of consensus and mutual benefit that makes government just and well ordered. [More in another Post].
The fact is that good government is designed to prevent tyranny:
John Stuart Mill said (and wrote) that Democracy derives
"from the principle of the necessity of identifying the interest of the government with that of the people." And "most of the practical maxims of a representative government are corollaries." [source Dissertations and Discussions, Appendix Vol 1 (1835)]
Of course a Country operated in the interests of all the people is actually a place that is operated for the common good or "commonwealth" of those people. In ordinary discussion the terms are interchangeable. By original usage Democracy was Greek, Republicanism was originally Roman, and the word commonwealth is from our English Heritage. When John Locke translated "Res Publica" (Republic) as "commonwealth" he was adding depth to the meaning. A Common wealth, to be something other than a Euphemism for Monarchy, must operate for the commonwealth of all the people. For any government to be functional, it must rest on both democratic, commonwealth and republican principles. A government that does not operate in the interest of all the people is both undemocratic and a tyranny. John Stewart Mills further said:
"All popular institutions are means towards rendering the identity of interest more complete. We say more complete, because (and this is important to remark) perfectly complete it can never be. An approximation is all that is, in the nature of things possible."
Thus when we talk about improving government we are talking about the degree to which we can introduce the principles, attributes and features of Democracy into government. Hence we combine Republican principles with Democratic ones to get a better government. And we combine democratic Republican principle with Federal ones to scale that government to meet the needs of people across geographical distance.
- Elective office, the ability to petition the government, to hire lawyers or get a help from a lawyer before a court, service on Juries, the choice of delegates and deputies to both represent dispersed realms to central locations and to represent central locations back to the dispersed realms; are all examples of the application of the principle of Republic. And the only chance that people have to enjoy good government on a large scale involves "Res-publica" or representation of the public in all its various forms. Direct Democracy can't function on a large scale because people are specialized and dispersed, so republics rely on representation. Even aristocratic republics rely on representation, parties, elections. The Athenian Democracy was only a direct democracy for Athenians; but the Romans could setup systems of representation that linked vast differences. The ability to scale was a result, partly of the core concept of a republic. Neither the Romans nor the Greeks got Federal principles right.
- Elective Government
- Designed to mitigate bad government by allowing citizens to cashier bad officers, and by making officers justify their being put into office to the general public. Officers who engage in tyranny (and get caught or manipulate the majority) can be cashiered.
- Separation of Powers
- Separation of powers is designed to prevent or mitigate tyranny by preventing one person from exercising "judge, jury and executioner" in one person -- which is the attribute of injustice and tyranny and tyranny when it occurs. Our present governments frequently combine executive functions and judicial functions in the same person, or let legislative folks decide their own pay, or provide means for officers to subvert good process and engage in various forms of tyranny unchecked. Good process involves setting regular processes so that the attributes of justice can be applied to the whole system and so that no person is put in a situation where the various roles he/she has conflict or contradict one another. Separation of powers applies not only to separating the executive from the judiciary or the legislative from the executive, but also providing separate officers and offices with in the judiciary, executive and legislative to deconflict the officers within those branches and their subdivisions. Bureaucratic governments subvert this principle, which is why they misfire and are dysfunctional. Private rule also subverts this principle. Corporations get their power from being governments over resources. [I'll go into this more at a later date].
- Rule of law
- Rule of law is the principle that makes Democratic Republicanism possible and is generally subverted by Aristocratic republics as they move along the downward spiral towards autocracy, authoritarianism, and (paradoxically) violence and anarchy. It is expressed by the old expression "what is good for the goose is good for the gander" and means that all folks are subject to reasonable, reasonably fair, and equally applied laws and regulations. It too is subverted by both corporatism and various forms of bureaucracy. Rule of law requires that all decisions be just. And Justice requires that decisions be justified, principled, and meet a consensus about what the law is in the particular case. [More later]
- Democracy = Δημοκρατία = Δημο/Demos + κρατία/Kracy or People-Rule
- The ancient Greeks didn't trust what we now think of as Republican principles. For them direct democracy rested on the concept of Ho Boulomenos (any athenian from those who wish to among those who may) or basically citizens stepping up to the plate and standing up for themselves.
- More: Mogens Herman Hansen (book)
- Democracy rests on people volunteering (or being drafted) to participate in government. Direct democracy works because the people involved work it. Republican governments acquire democratic aspects when folks volunteer and step up to partipate. When folks don't participate, then the democratic attribute is gone.
- Thus democracy depends on various institutions that enable ordinary citizens to participate and oversee the function of the government. The basis of these is volunteerism. Militias, emergency response, general assemblies, elections, barn raisings and juries all depend on a volunteering spirit and are exemplars of real democracy at work.
- Juries and jury like institutions.
- One problem with our current system is that our juries are under the thumb of a judge rather than guided by a judge, and don't have the independence to look at and weigh all the facts when they are charged with judging a case or situation. When we want our police to work effectively, citizen participation, for example citizen commission or committees. Citizens who ride along with police. Citizens who examine incidents independently, can prevent officers and collections of officers and their deputies and employees from behaving badly. This is a "democratic control."
- Indeed Alex Sparrow writes that all Athenian Officials were subject to an inquiry:
- Dokimasia and Euthune (“scrutiny” and “the act of setting straight”)
- "Any Athenian official had to be subjected to an examination of their character before taking office (dokimasia), and a review of their public conduct at the end of their term (euthune)." We do the pre-office vetting in a really crappy way and officials often leave office without ever having been examined. But the Athenians actually used Jury structures to do both these things and made folks justify their behavior before and after. Alex notes that something like the Dokimasia would require officials to present their "birth certificate and their tax records." Essentially everyone seeking office would have to be cleared in front of a jury structure of citizens selected from the jury pool.
- If we applied the principles of Euthune. Sparrow notes "First, if the public official had handled money, his office was audited, and taken to a jury court if there were irregularities. If this process were adopted in the 21st century, the last Secretaries of Defense would be in prison for adikion, the loss of funds through incompetence or negligence (the Pentagon hasn’t passed an audit in decades, and has misplaced billions annually). Next, any citizen could lodge a complaint against the former official for abuses of power of failure in duty, again requiring a court hearing. So, in today’s America, there would be no question of whether or not members of the Bush Administration would be impeached or not. The question would be whether they received the death penalty or life in prison." [Sparrow]
- Graphe (“writing”)
- The so-called Lincoln whistleblower laws were probably fashioned with these ideas in mind. Probably the concept of "Graphe." Sparrow notes: "Any Athenian citizen could indict any other for a crime. There were no public prosecutors, so it was up to any citizen to prosecute crime. Plaintiffs would receive a reward for a successful prosecution, which gave rise to a class of people who did nothing but prosecute, called “sycophants”." And a lot of malicious prosecutions. "However, prosecution with no or little case carried a risk to the citizen-prosecutor. If the prosecutor did not receive at one-fifth of the jury voting in his favor, the prosecutor would have to pay the court costs. Prosecutors could also be hit with a "paragraphe", or a counter-indictment for attempting to make an illegal prosecution." I don't think we should go to this sort of thing. Citizens seeking to prosecute someone should have to meet standards like habeas corpus and such which were developed by the Romans and by long conflict between commoners and abusive legal structures. Not everything Sparrow suggests is as good as it sounds.
- Democratic Oversight
- When doctors must examine incidents and investigate them. That is a an executive oversight function. When they must present their case to a citizen panel that is a democratic control. In one case we are relying on the professionalism and factualness of the officers. In the other we are requiring that judges and other officers justify their decisions. Democratic Oversight is as necessary (more) for a functional democracy as elections.
- Empowered juries are also important "Nomothesia" or “law-making” in ancient Athens were the main form of legislature and used juries rather than elected officials. Our practice of subjecting legislation to a Supreme Court review only is initiated when there is a dispute, largely because this function is so powerful. However Jury style commissions are a better alternative to the juries made up of insiders and partisans that are used to form most of our commissions and investigative bodies. Empowering juries is also important for dealing with excessive prosecutorial power. Especially if we don't want to simply abolish the position of prosecutors and go back to using "Graphe" methods of fingering criminality. For example rotating all the positions, except Chief Justice, on our SCOTUS and appellate courts on a jury like random basis would probably make our courts less biased.
- Without the ability to form factions, to argue, to see all the facts, too look at all the angles, democracy falls apart. Without the ability to choose between rivals democracy becomes a joke. The key attribute that makes a democratic republic versus an oligarchic one is that the citizens have the choice of cashiering their officers and choosing new ones, of overriding the decisions of their deputies or even firing them. All officers (legislative, judicial or executive), and not just judges, should have to justify their decisions with facts, figures, and be accountable if they lie. This is a principle of justice too.
Democratic Principles and Democratic Controls
These are some of the basic principles of democracy and republicanism, there are more. The further principles all derive from the ones listed above.
Also I'm ignoring much of what I've read from legal and punditry quarters because much of it is parsing and sophistry that has corrupted the edges of some of these concepts. You will find my explanations justified, but at variance with what you'll hear from some of them.
- Definition of Tyranny:
- Includes, abuse of power, oppression, kleptocracy, etc... The following defines "abuse of power:"
- Continued article:
- The Concept of Commonwealth: http://holtesthoughts.blogspot.com/2012/08/the-concept-of-commonwealth-as-antidote.html
- Another Article I found, by Alex Sparrow, since I first wrote this talks about 5 democratic controls that we could use to upgrade our own government functions:
- 5 Things from Ancient Athens that We Need (Besides Democracy)