Punishing the Punishers

– June 15, 2023 Reading Time: 4 minutes

Americans usually think of governments as the entities that punish those duly convicted of breaking laws with community service, fines, jail time, and perhaps even death. What happens, though, when governments themselves go rogue and break the law or ignore state or federal constitutions?

John Locke, Thomas Jefferson, and many others in the Anglo-American governance tradition argued that the equivalent of death was moral and lawful for any government that ceased serving its citizens. Ridding society of a venal government even became a civic duty after it perpetrated a long train of abuses and usurpations. That meant regicide when the monarch claimed to be the corporeal instantiation of the state, and establishment of a new form of government, by force if necessary, in other instances.

Early Americans also believed that mere incompetence justified a peaceful transfer of power, as in 1787 when the Constitutional Convention amended the Articles of Confederation by completely replacing them. To avoid frequent repeat, the new Constitution included mechanisms for amending itself.

One of the amendments to the U.S. Constitution, the 25th, specifies the procedure for removing an incompetent president (POTUS) from office; the original Constitution (Article II, Section 4) specifies the procedure for removing a venal president, vice president, or any other federal civil officer. The first has yet to be invoked and the latter has been invoked only 21 times against 20 people (mostly judges, three Presidents (one twice), one cabinet member, and one Senator) and succeeded in only 8 instances.

Cabinet members and most of the people in the 9,000 positions listed in the Plum Book (United States Government Policy and Supporting Positions) serve at the pleasure of POTUS. That might seem like a substantial check, but a lame duck President has little incentive to replace incompetent underlings and no incentive to remove venal ones, at least those whose wrongdoings remain hidden from the public. A first term POTUS, by contrast, may keep venal or incompetent underlings, especially those in the surveillance agencies like the FBI or CIA, ensconced due to fears that they could leak real or fabricated information with election implications in retaliation for their chastisement.

The Framers also built regular elections into the Constitution so that incompetent or venal leaders, or leaders who countenance incompetent or venal underlings or governance institutions, could be removed through rule of law. If elected officials do not have the de facto power to eliminate or even to curb those incompetent or venal institutions, however, lawful options remain few and weak.

Citizens with “standing” can sue governments or bureaucracies that exceed their lawful mandates, but most people cannot afford the money or the time required to effectively counter. Nonprofit law firms like Pacific Legal Foundation have won important Supreme Court cases but the governance dikes have more leaks than the nonprofits have thumbs.

In some instances, elected officials have punished parts of the government excessively in order to curry favor with vociferous or favored factions. “Defund the Police” failed, for example, because it slashed budgets instead of identifying and rectifying the core causes of police abuse. Yet the worst that happened to the municipal governments that abetted the current crime wave was the election of new leaders who appear no better than the incumbents they replaced!

State governments that violated the US Constitution by seceding, by contrast, were disbanded and forced to apply for readmission to full statehood under new state constitutions. In its 1868 decision in Texas v. White, the U.S. Supreme Court made clear that Texas had never left the Union because it could not lawfully do so. The federal government’s actions against that states “usurping government” were justified under the Constitution’s guarantee of republican government. What, if any, state government actions short of secession and armed rebellion against the US government would trigger the same response remains unclear, though one would think a prima facie case could be made that a state that admits it caused trillions of dollars of damage to one minority and tries to make restitution by seizing the income and assets of another minority is not a republican government.

For those and other reasons, I fear that many Americans already contemplate declaring independence from the US federal government and perhaps the state governments in Albany, Springfield, and Sacramento, too. The train of abuses and usurpations from just the last three years appears to be at least as long and serious as the one Founders laid out against King George almost 250 years ago.

Reform of the current government, which served America well until the New Deal anyway, would be preferable. I’m especially intrigued by European and American experiments in participatory budgeting (PB), or in other words decision-making systems where each taxpayer gets to decide how the (usually so far city) government spends a portion of his taxes.

PB presumably decreases tax avoidance because it allows taxpayers to fund projects or services that they believe to be worthwhile and not to fund activities that they find abhorrent. It certainly returns some of the proverbial power of the purse to the people. PB would have been impractical at the national and even the state level for most of the nation’s history, but today it is technologically feasible.

If PB of the discretionary part of the US federal budget were adopted, Congress would still set the level and type of taxes. If, though, the FBI, NEA, NPR, or the “Ministry of Truth” receives an allocation of, say, only $10, the punishment for incompetence or venality has been fairly meted out, has it not? What could be more democratic than direct dollar democracy? Alas, while PB is no bigger a reform than ranked-choice voting, it’s probably too effective for power hungry leaders to countenance.

Robert E. Wright is the (co)author or (co)editor of over two dozen major books, book series, and edited collections, including AIER’s The Best of Thomas Paine (2021) and Financial Exclusion (2019). He has also (co)authored numerous articles for important journals, including the American Economic Review, Business History Review, Independent Review, Journal of Private Enterprise, Review of Finance, and Southern Economic Review. Robert has taught business, economics, and policy courses at Augustana University, NYU’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since taking his Ph.D. in History from SUNY Buffalo in 1997. Robert E. Wright was formerly a Senior Research Faculty at the American Institute for Economic Research.