The deep state and democratic institutions

The Drawbridge, from Imaginary Prisons, Giovanni Battista Piranesi, 1750.

by John MacBeath Watkins

Does a 'deep state' threaten a republic, or actually strengthen it?

One of the complaints of Trump supporters is that the deep state -- a sort of Praetorian Guard that controls who will rule and how -- has frustrated Donald Trump's efforts to remake American government.

This is a fascinating claim. The Praetorian Guard was an elite corps of the Roman army tasked with protecting the emperor. Over the centuries, their power increased, to the point where they were either killing emperors and naming their successors (Caligula, dead, Claudius, emperor) or signalling their support for who would rule after an emperor died (Claudius poisoned, Nero supported for emperor.)

But these were not bureaucrats, nor were they equivalent to the lightly-armed Secret Service. In the reign of Tiberius, there were nine cohorts of 4,500 soldiers each in the Praetorian Guard, three of them stationed in Rome and the others nearby.

The deep state of our time is supposed to be the staff of the U.S. government, whether in the Justice Department, State Department, or intelligence services. The idea is that they may lack loyalty to the president.

One problem with this is that we are a country ruled by laws, carried out by our elected and career government, not a nation ruled by the will of a leader. John Locke, whose writing inspired many of the ideas for the American experiment, said that if the people cannot rid themselves of an oppressive and arbitrary ruler by any other means, they had a right to revolution.

So, our founding fathers decided we needed a republic, which would be governed at the highest levels by people who could be voted out of office.

But if a new regime is to take over, how is it to govern? Won't the personnel of the old regime frustrate the new?

The first answer to this was the spoils system, which allowed each new government to replace large numbers of government workers with people chosen for their loyalty, rather than their skills.

The result was powerful political machines with the ability to reward or punish people according to their loyalty, and a great deal of corruption.

In the late 19th century, the progressive movement started changing this. Their idea was that they could eliminate much of the power and the corruption of political machines by replacing the political hacks with professionals chosen for their skills, and protect those professionals from the corrupting influences of political machines by ensuring they could not be arbitrarily fired.

This was in keeping with the concept of the Constitution. Article VI of the Constitution includes this language:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Note that these officials do not swear to support the president. This is the current federal oath of office:

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

Donald Trump is reportedly upset that Attorney General Jeff Sessions has recused himself from the investigation of Trump's campaign, and blew his top over the issue, saying that he "needed his Attorney General to protect him."

But Sessions -- and for that matter, Trump -- took an oath to protect the constitution against enemies foreign and domestic. This means that if even the president becomes an enemy of the constitution, his attorney general (and, paradoxically, the president himself) is obligated to defend the constitution from him.

The U.S. Constitution lays out a system of government designed to work, within a set of parameters, for successive governments chosen by the electorate. For that system to work, it has to be a professional government that can work for whichever people get elected.

But this is not how Donald Trump conducts business. He demands absolute loyalty of those around him, and has always relied on his lawyers to clean up any messes he may have with the law. Right now, his main fixer, Michael Cohen, is in trouble for the way he went about cleaning up those messes.

You can run a business this way, especially a small family firm without the reporting or legal requirements of a publicly held corporation. As a system of government, the Germans had a word for it: fuhrerprinzip, usually translated as the leader principle. Under that system, at each level of government, the person in charge has total control, and that person's will overrides any written law. The person at the top of the hierarchy is the Fuhrer, whose will overrides any written law and any orders by subordinates.

President Trump, with his admiration for dictators, has shown a preference for the leader principle. Now, the proper control on this behavior is not the democratic norms embedded in the professional standards of the civil service, which has no role described in the constitution for constraining the authoritarian ambitions of a president. The proper control is congress, which passes the laws the executive is charged with putting into action and has the power to remove the president.

There's a problem with that. Not only are most Republican legislators scared of the power Trump holds over the Republican base electorate, many of them agree with his anti-democratic instincts.

From a Sam Tanenhaus article in the July, 2017 issue of The Atlantic:

https://www.theatlantic.com/magazine/archive/2017/07/the-architect-of-the-radical-right/528672/
(Economist James McGill) Buchanan’s theory found another useful ally in the budget-slasher and would-be government-shrinker David Stockman, who idolized Hayek and declared that “politicians were wrecking American capitalism.” But Stockman also discovered that restoring capitalism to a purer condition would mean declaring war on “Social Security recipients, veterans, farmers, educators, state and local officials, the housing industry.” What president was going to do that? Certainly not Reagan. As Stockman reflected, “The democracy had defeated the doctrine.”

Tanenhaus was writing about Nancy MacLean's book, Democracy in Chains, which explores the influence of Buchanan's public choice theory on American politics. Essentially, the argument is that when it appeared that democracy was a threat to the pure form of capitalism Buchanan favored, his doctrine said that the value system of capitalism should be the one to triumph.

If democracy defeated the doctrine, the solution was to defeat democracy.

We live in a democratic republic. Republics can be undemocratic: The Roman Senate operated more like the English House of Lords than the House of Commons. America's founders thought the best way to have a peaceful and well-governed country was to have its leaders democratically elected, so that if they governed poorly, they could be peacefully replaced.

Over time, we have recognized the humanity of groups like women and former slaves and their descendants by granting them the vote. Rousseau defined freedom as living under a law of your own making. Widening the franchise recognized that previously disenfranchise people were their own masters, and should have a role in determining the laws under which they lived.

Buchanan's theory seems like a throwback to the times when one had to own property to have the right to vote. John Locke theorized that we each are born owning ourselves, and can never sell that property right to anyone else. If you own your own soul, should that not be property right enough to shape the government that rules you?

Buchanan said he was applying economic theory to politics. The problem is that he, and those who have financed the political movement that has drawn on his ideas, also applied economic values to politics, privileging economic assets and market value above all else.

Buchanan does stipulate that there can be just constitutional arrangements in which people can be rightly taxed. He only stipulates that this arrangement requires unanimity in agreeing to the terms of the constitution. From Chapter 6 of his book, Limits to Liberty:

Under a unanimity rule, decisions if made at all are guaranteed to be efficient, at least in the anticipated sense. Individual agreement signals individual expectation that benefits exceed costs, evaluated in personal utility dimensions, which may or may not incorporate narrowly defined self-interest. With a purely public good, the individually secured benefits, as evaluated, must exceed the individually agreed-on share of costs, measured in foregone opportunities to secure private goods. From an initial imputation of endowments or goods, the multiparty exchange embodied in public-goods provision moves each individual to a final imputation, which includes public goods, that is evaluated more highly in utility terms. Each person in the collectivity moves to a higher position on his own utility surface, or thinks that he will do so, as a result of the public-goods decision reached by unanimous agreement.

No such results are guaranteed when collective decisions are made under less-than-unanimity rules...

(A couple of paragraphs later:)

...We are assuming that the same persons participate in the conceptual constitutional contract and in postconstitutional adjustments. From this it follows that, if a constitutional contract is made that defines separate persons in terms of property rights, and if these rights are widely understood to include membership in a polity that is authorized to make collective decisions by less-than-unanimity rules, each person must have, at this prior stage, accepted the limitations on his own rights that this decision process might produce.

Now, that's a slightly different position than the "all taxes are theft" position taken by some other theorists, but note that none of the factors that would make the last quoted paragraph apply to the American tax system do in fact apply. While all the states ratified the constitution, they did not do so by unanimous vote. Massachusetts, for example, ratified it by a vote of 187 to 168. While Buchanan theorized that there could be just taxes, no government I know of meets his standards for justice.

Charles Koch became interested in his work, and in 1997 donated about $10 million to finance Buchanan's think tank, the Center for the Study of Public Choice, which is associated with George Mason University.

Public choice theory did much to destroy the idea of "the public good," as understood by political theorists prior to the 1960s. Public choice theory assumes that the people who make up government have their own self-interest. Therefore, any time someone claims to be acting in the public interest, we should assume that whoever is making these claims is acting in their own interest.

Now, consider the first paragraph in section 8 of the U.S. Constitution:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

James Monroe claimed the phrase "...and general Welfare..." was meaningless, Alexander Hamilton claimed it was crucial. Hamilton was a mercantilist who believed in government taxing and spending to develop the nation.

The welfare clause became the justification for the Supreme Court's 1937 ruling in Helvering v. Davis that held the government had a right to levy Social Security taxes and pay pensions. After all, if Social Security doesn't provide for the general welfare of the country, what does?

Well, who says what the general welfare of the country is? Is it any better defined than "the public good?" Aren't the people promoting the idea just acting in their own interest?

One of the problems with the tools of economics is that it is a discipline that makes certain assumptions about human nature, that humans are rational and self-interested. It is a discipline with a decent but mixed record of analyzing behavior in a restricted part of human endeavor, the economic part. It is not really designed for analyzing altruism, heroism, or even the sacrifices a parent will make for a child, seeking to explain all these things in terms of individual self-interest.

The self-optimizing individual isn't necessarily selfish. One may have a preference for as much money as possible, or one may prefer to spend a lifetime trying to save the world from whatever you feel threatens it. Economics treats these preferences as equal, making no judgments as to the moral value of preferences. However, many on the right seem to treat all preferences as selfish, because they are the preferences of individuals. Perhaps this is because they have fallen under the sway of a far more widely known thinker, Ayn Rand, who wrote:

Man—every man—is an end in himself, not the means to the ends of others. He must exist for his own sake, neither sacrificing himself to others nor sacrificing others to himself. The pursuit of his own rational self-interest and of his own happiness is the highest moral purpose of his life.

This takes the economic assumption in the commercial sphere that people will try to optimize their financial well-being, expands the "virtue of selfishness" to all of life, and changes it from an empirical assumption into a normative judgment.

But we have more than one way of organizing society. There are spheres of human endeavor in which the market is simply not competent to deal with our problems. In fact, markets cannot exist without these other spheres of endeavor. Attempts to run an economy without a properly-functioning legal system have resulted in poor economic performance, and societies only satisfactory to those with enough influence to make sure the courts rule in their favor. Markets were never intended to deal with the problems of those who cannot work.

What sort of parent would fail to sacrifice their sleep to a wailing infant, or their time and money to the education, both academic and moral, of their children? Rand had no children, in keeping with her philosophy that she was an end in herself, but a society of such people would disappear in one generation.

Even in obviously financial decisions, like what one does for a living, people are not financially optimizing creatures. That's not a problem for economics, it just means that the preferences being optimized are not necessarily financial. The problem is with the way this economic explanation is interpreted. The default assumption on the right seems to be that unless one's motives are Evangelical Christian or military, they are selfish, therefore those who seek a profession that gives their lives meaning, like taking a job in the Environmental Protection Agency in the hope of working toward a better world, are really motivated by selfishness.

And if that's the case, the people working for the government cannot be altruistic. Any claims that they are acting for the good of the country can be discounted. People working at agencies because they agree with the purpose of the agencies and the laws that established them are, to this way of thinking, just as selfish as those who want to tear down those agencies so that corporations can make more money.

One of the more troubling ways conservatism has become corrupt is this belief that there are no altruistic people, just hypocrites pretending to have moral standards.

These assumptions would staff your deep state with morally corrupt people whose agenda is not that of the governed, but only of their own corrupt ends. And the solution to this problem would be to elect the Great Man, and make the government subject to his will. The checks and balances built into our government by people who believed there was such a thing as "the general welfare" are useless in this world view, and serve only to frustrate democracy.

But we've seen this movie before, and the ending wasn't funny. In fact, it's a story thousands of years old. About 2,500 years ago, Aristotle wrote the following in Politics:

“When states are democratically governed according to law, there are no demagogues, and the best citizens are securely in the saddle; but where the laws are not sovereign, there you find demagogues. The people become a monarch... such people, in its role as a monarch, not being controlled by law, aims at sole power and becomes like a master.”

Plato, his contemporary, thought societies went through a natural progression from oligarchy, to democracy, then tyranny, each stage representing the breakdown of the previous stage.  To be ruled by a tyrant is to be subject to the will and the whims of that ruler. Plato said the tyrant arrives as the peoples' champion, telling them only he can fix their troubles, but cannot even govern himself because there is no constraint on his whims and urges. Moreover, because all his relationships are built on domination and submission, the tyrant “never tastes of true freedom or friendship.”

If you cannot know friendship, can you know empathy? Trump is Ayn Rand's ideal man, always looking after number one and as a result treating others like number two. He wants to wield the kind of power held by the people he admires, men like Vladimir Putin and Kim Jong-Un. He does not want a government of laws, he wants a government that will do his will.

When his followers refer to organizations such as the Justice Department as the "deep state," they are saying they do not want Trump constrained by the laws of our country. You might think this is just an animal urge on the part of his supporters, most of whom have never heard of James Buchanan, but that would mistake the nature of influential ideas. People who couldn't spell John Locke's name and have never read his work hold his ideas about each of us being born our own master sacred. You don't have to read The Second Treatise of Government to feel that way, the idea is embedded in our culture.

The ideas of people like Buchanan and Rand have become embedded in the hive mind of the right, and have become part of their culture.

The concept of the deep state also made some inroads on the left, particularly the far left, where faith in democracy has always been weak. Public choice theory has always had less appeal to this group, because its assumptions are those of capitalist economics. Whereas Buchanan might be said to have made the argument that money doesn't run everything, but it should, the far left tends to think that money does run everything. The deep state of liberal nightmares is the military-industrial complex. The deep state understood by adherents of Buchanan's ideas is government based on laws passed by the people's elected representatives.