The Law's Spider's Web

Here is former Italian Prime Minister Guilano Amato, on the revised EU Constitution, which its advocates are trying to pass off as just another treaty to avoid the need for referenda in European countries, some of which they are likely to lose (hat tip: EU Observer):

They [EU leaders] decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception. Where they got this perception from is a mystery to me. In order to make our citizens happy, to produce a document that they will never understand! "But, there is some truth [in it]. Because if this is the kind of document that the IGC [intergovernmental conference] will produce, any Prime Minister – imagine the UK Prime Minister - can go to the Commons and say 'look, you see, it's absolutely unreadable, it's the typical Brussels treaty, nothing new, no need for a referendum. Should you succeed in understanding it at first sight there might be some reason for a referendum, because it would mean that there is something new.

Now the EU leadership is notorious for running referenda as many times as it takes to get the result they want. (See Denmark in 1993 on the Maastricht Treaty and Ireland in 2000 on the Nice treaty for more examples.) And so Mr. Amato is somewhat recklessly saying in public what many of us already know, that government power these days is increasingly not about outright political repression but about the quiet suffocation of individual dreams by the regulatory state, crafted, run, litigated and financed by lawyers and others who have mastered the necessary tools of the trade. Complex laws are laws that are harder to challenge, harder to pin down and hence easier to mobilize against your political opponents. The rise of the regulatory state, in which Congress has abandoned its lawmaking powers to the permanent rule-writing bureaucracy (a pattern even worse in the EU) and to court battles among hired guns, has had devastating effects on freedom. Thomas E. Nugent wrote this fine piece at National Review Online recently, lamenting the fact that the rise of lawyers as legislators and, increasingly, presidential candidates means an increase in laws that only the lawyers can understand, which is fatal to liberty.

The argument is more than plausible economically; those who are the high priests of legal interpretation have every incentive to increase the opacity of the law for those without the proper credentials. This limits the competition they face in the market for rulemaking. It is no coincidence that the modern route to getting the government to do something you want (and typically having the government do it to people other than yourself) is not elections but litigation and lobbying. And the increasing complexity and arbitrariness of the rules crafted through this process allows organized pressure groups and advocates to ensnare the citizenry ever more, causing their freedom to maneuver, their ability to plan their own affairs in the confidence a bureaucrat or judge will not molest them, to shrink ever faster.

To see a particularly disquieting example read Bradley A. Smith’s piece in City Journal about citizens intimidated into withdrawal from the political process by our byzantine incumbency-protection racket campaign-finance laws. Examples are found there of citizens who want to threaten politicians and their agendas, but are intimidated into silence through clever legalistic manipulation of these laws.

The fiction that elections are all about taking the public temperature and interpreting the public will is ever harder to take seriously when the entry barriers of incumbency ever more sharply limit political competition. Politicians, ever eager to increase their power over private matters, constantly lament the rise of “economic power,” which (as GM or Ford shareholders could currently tell you) is only as resilient as the time it takes someone to come up with a better product. Of the far more dangerous concentrated political power - rulemakers entrenched by incumbency protection and by the complex nature of the technology for manufacturing legal rules - little is ever said.

Take any measure you like for the increasing scope of government in our lives – pages in the Federal Register, number of federal employees, number of regulatory agencies – and compare now to fifty years ago. We live increasingly in the age of the triumph of the attorneys. Freedom dies not because some marauding army streams over the border (or because crazed jihadists pour into the country out of Arabia) but because, as Tacitus is said to have said, “the more corrupt the state, the more numerous the laws.”