This rather long article is actually a condensation of a longer piece by Garet Garrett called The Rise of Empire, which was published in 1952. The American Empire appears in Mises Wire. It’s a bit of a contrast with AG Barr’s article about how the executive branch is too weak, but there is overlap. Part of the difference between the two lies in the administrative agencies and whether they are truly under the control of the President or under the control or influence of other political interests. Constitutionally, administrative agencies as law-making bodies should not exist at all, but as part of the executive should be entirely under the direction of the office of the President. In practice, they have been unaccountable, extra-Constitutional legislative bodies only marginally under the power of the executive branch. When the occupant of the Presidential office is able to appeal to the appetites and desires of the various administrative agency heads, he will be much more powerful than a President at odds with those same agencies.
We have crossed the boundary that lies between Republic and Empire. If you ask when, the answer is that you cannot make a single stroke between day and night; the precise moment does not matter. There was no painted sign to say: “You now are entering Imperium.” Yet it was a very old road and the voice of history was saying: “Whether you know it or not, the act of crossing may be irreversible.”
That a Republic may vanish is an elementary schoolbook fact.
The Roman Republic passed into the Roman Empire, and yet never could a Roman citizen have said, “That was yesterday.” Nor is the historian, with all the advantages of perspective, able to place that momentous event at an exact point on the dial of time. The Republic had a long, unhappy twilight. It is agreed that the Empire began with Augustus Caesar. What Augustus Caesar did was to demonstrate a proposition found in Aristotle’s Politics, one that he must have known by heart, namely this: “People do not easily change, but love their own ancient customs; and it is by small degrees only that one thing takes the place of another; so that the ancient laws will remain, while the power will be in the hands of those who have brought about a revolution in the state.”
Revolution within the Form
There is no comfort in history for those who put their faith in forms; who think there is safeguard in words inscribed on parchment, preserved in a glass case, reproduced in facsimile and hauled to and fro on a Freedom Train.
Let it be current history. How much does the younger half of this generation reflect upon the fact that in its own time a complete revolution has taken place in the relations between government and people?
The extent to which the original precepts and intentions of constitutional, representative, limited government, in the republican form, have been eroded away by argument and dialectic is a separate subject, long and ominous, and belongs to a treatise on political science. The one fact now to be emphasized is that when the process of erosion has gone on until there is no saying what the supreme law of the land is at a given time, then the Constitution begins to be flouted by executive will, with something like impunity. The instances may not be crucial at first and all the more dangerous for that reason. As one is condoned another follows and they become progressive.
To outsmart the Constitution and to circumvent its restraints became a popular exercise of the art of government in the Roosevelt regime. In defense of his attempt to pack the Supreme Court with social-minded judges after several of his New Deal laws had been declared unconstitutional, President Roosevelt wrote: “The reactionary members of the Court had apparently determined to remain on the bench for as long as life continued — for the sole purpose of blocking any program of reform.”
Among the millions who at the time applauded that statement of contempt there were very few, if there was indeed one, who would not have been frightened by a revelation of the logical sequel. They believed, as everyone else did, that there was one thing a President could never do. There was one sentence of the Constitution that could not fall, so long as the Republic lived.
The Constitution says: “The Congress shall have power to declare war.”
That, therefore, was the one thing no President could do. By his own will he could not declare war. Only Congress could declare war, and Congress could be trusted never to do it but by will of the people. And that was the innermost safeguard of the republic. The decision whether or not to go to war was in the hands of the people — or so they believed. No man could make it for them.
It is true that President Roosevelt got the country into World War II. That is not the same thing. For a declaration of war he went to Congress — after the Japanese had attacked Pearl Harbor. He wanted it, he had planned it, and yet the Constitution forbade him to declare war and he durst not do it.
Nine years later a much weaker President did…
The first requisite of Empire is:
The executive power of government shall be dominant. It may be dominant originally, as in the days of hereditary kingship, or it may come to be dominant by change, as when the Roman Republic passed under the rule of Caesars.
What Empire needs above all in government is an executive power that can make immediate decisions, such as a decision in the middle of the night by the President to declare war on the aggressor in Korea, or, on the opposite side, a decision in the Politburo in the Kremlin, perhaps also in the middle of the night, to move a piece on the chessboard of cold war.
The Federal income-tax law of 1914 gave the government unlimited access to wealth and, moreover, power for the first time to levy taxes not for revenue only but for social purposes, in case there should arise a popular demand for redistribution of the national wealth. World War I immediately followed. Looking backward we can see that these two events marked the beginning of a great rise in the executive power of government. Then came in rapid succession (1) the Great Depression, (2) the revolutionary Roosevelt regime, and (3) World War II, all within an arc of twenty years…
(2) By reinterpretation of the language of the Constitution. That is done by a sympathetic Supreme Court.
(3) By innovation. That is when, in this changing world, the President does things that are not specifically forbidden by the Constitution because the founders never thought of them.
(4) By the appearance in the sphere of Executive Government of what are called administrative agencies, with power to issue rules and regulations that have the force of law. These agencies have built up a large body of administrative law which people are obliged to obey. And not only do they make their own laws; they enforce their own laws, acting as prosecutor, jury and judge; and appeal from their decisions to the regular courts is difficult because the regular courts are obliged to take their findings of fact as final. Thus the constitutional separation of the three governmental powers, namely, the legislative, the executive and the judicial, is entirely lost.
(5) By usurpation. That is when the President willfully confronts Congress with what in statescraft is called the fait accompli — a thing already done — which Congress cannot repudiate without exposing the American government to the ridicule of nations…
(6) Lastly, the powers of Executive Government are bound to increase as the country becomes more and more involved in foreign affairs. This is true because, both traditionally and by the terms of the Constitution, the province of foreign affairs is one that belongs in a very special sense to the President…
Another brand mark of Empire is: “Ascendancy of the military mind, to such a point at last that the civilian mind is intimidated.”
…It was General MacArthur himself who uttered these devastating words:
Talk of imminent threat to our national security through the application of external force is pure nonsense. … Indeed, it is a part of the general pattern of misguided policy that our country is now geared to an arms economy which was bred in an artificially induced psychosis of war hysteria and nurtured upon an incessant propaganda of fear. While such an economy may produce a sense of seeming prosperity for the moment, it rests on an illusory foundation of complete unreliability and renders among our political leaders, almost a greater fear of peace than is their fear of war.
The bald interpretation of General MacArthur’s words is this. War becomes an instrument of domestic policy. Among the control mechanisms on the government’s panel board now is a dial marked War…
No doubt the people know they can have their Republic back if they want it enough to fight for it and to pay the price. The only point is that no leader has yet appeared with the courage to make them choose.