Did the Deep State Overrule the Republic?
And Here We Are in Post-Republican America?
Phillip Hamburger, The Administrative Threat (2017)
...cities without freedom have never expanded either in dominion or in wealth. For it is not the specific value but the general value that makes cities great. And certainly this general value is found only in republics.
Niccolo Machiavelli, Discourses on Livy (1531)
Back when the founders were designing the U.S. at the Constitutional Convention, the buzzword was “republic”. Then as now, people disagreed a lot on exactly what a ‘republic’ was and is. But one thing is certain: A republic is a representative form of government. In a republic, the government rule-makers are somehow subordinated to the people’s will, usually at least by having to be elected by the people. In the 21st century, that is not how the United States government works. Because: The unaccountable Deep State.
How and why the American republic was lost is not complicated, nor is it a mystery. In early 1940s in a coup led by then-President Franklin Roosevelt, the republic of the United States of America was overthrown. It’s not an exaggeration; it’s history.
...the grand concept of law was being eroded away, or prostituted, until it became little more than an ensemble of rules and rulings, changeable without notice, and reflecting little more than an arbitrary exercise of power — the very antithesis of law.
Article I, Section 1
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
That in America “…the government rule-makers are chosen by the people to represent the people’s will” was put into law in Article 1 Section 1 of the Constitution. (That it is the first article of the first section of the Constitution is not an accident). That first law of the republic is simple and clear: Only Congress can make laws. So all the decrees and regulations being created by the unelected U.S. Deep State are illegal. And the vast majority of the new laws in the United States are indeed created by unelected Deep State government regulators. (The exact number of laws is impossible to count as we show in the book Overregulated, but the amount is huge, and mostly created by the deep state).
Article 1 Section 1 of the U.S. Constitution was never officially repealed by an amendment. So the current system of U.S. government is both
• Illegal under its own most important and most foundational laws.
• A system which was put in place by a coup which replaced the republic.
That coup was accomplished by what is called the Administrative Procedure Act (APA). It is a series of acts, the first created in 1946, that give unelected government regulators the power to make laws, and so created the unaccountable deep state, and replaced the republic system. The politicians in Congress created an unaccountable government to avoid accountability. Accountability is the essence of representative government, and without it no nation can really be a republic.
If you don’t believe Rightful Freedom, read legal scholar Phillip Hamburger’s books Is Administrative Law Unlawful? (2014) and The Administrative Threat (2017). He puts forward the case for the deep state being illegal and unconstitutional but, being a professor at an ivy league university, does not quite come to that conclusion himself. The truth is obvious, though. The U.S. system of government is no longer a republic; that system was overthrown by a coup in the late 1940s.
Of course, leftists can write and have written volumes refuting that truth and “explaining” how the Administrative Procedure Act is Constitutional after all, and a great thing, and very, very progressive. But it’s all lies. The leftists also wrote reams of truth about what they were really doing and why. Starting with Wilson and the other Progressives (later to be renamed “Liberals”), the leftists were very open about their conclusion that the Constitution was outdated and had come to stand in the way of a better system, a system of government where elite, modern managers ruled America by decree.
Absolutely. There is no doubt that in the U.S. system laws can be illegal. In 1803, in the foundational case Marbury v Madison, the Supreme Court established the doctrine of judicial review. The court could declare a law illegal under the Constitution.
The court later and frequently elaborated on the fact that laws can indeed be illegal.
The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void and ineffective for any purpose....
It is as inoperative as if it had never been passed... Since an unconstitutional law is void, the general principle follows that it imposes no duties, confers no right, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it...
An unconstitutional law cannot operate to supersede any existing law.... No one is bound to obey an unconstitutional law, and no courts are bound to enforce it.
In other words, because the “laws” created by the deep state are profoundly unconstitutional under Article 1 Section 1 of the Constitution, no American must or should obey them. They are totally illegal.
The legislation might be thousands of pages long. It might have a catchy name that appeals to citizens. It might be celebrated in Washington. The details aren't there. Congress doesn't bother to do that. The work gets passed off to the regulatory state, the alphabet soup of agencies that dominate Washington. The IRS. EPA. CDC. FDA. FTC. HHS. OSHA. FEMA. SEC. TSA and too many others. The unelected bureaucrats at those agencies (and their activist allies) get to tell you and me what to do. They tell us how to spend our money, how to educate our kids, what cars we can drive, how businesses should run, where to invest our money, how to take care of our health, how to use our property, and on and on and on.
Kent Lassman, Competitive Enterprise Institute (2023)
Jeff Bergner, a long-time Congressional
aide, in his 2018 book The Vanishing Congress, wrote
“...the growth in personal staff occurred at precisely the same time Congress
was busy offloading its responsibilities to independent regulatory agencies.”
True, but the book’s title is misleading. Congress wasn’t disappearing, it was
getting bigger, and Congresspersons were getting ever more fabulously wealthy.
The only thing that was disappearing was accountability.
Of course, that isn’t the end of the story, it’s more like the beginning. The APA Coup was the beginning of a new system of government, the Unaccountable State of America. As the post-republican U.S. system evolved, the two-party system was eventually replaced by the one-party Uniparty system.
The impact of the APA Coup can hardly be overstated. Unaccountability spreads from the federal Administrative State to all of government: Federal; State; Local. The unaccountable Deep State government regulators can take the blame, if necessary, for the harm that other government regulators do, and the public has no recourse, because the unelected Deep State legislators are unaccountable. They cannot be defeated in elections and, in practical terms, they can't be fired
And, of course, lots more changes happened after the Coup. Way too many to go into here.
...in every republic there are two conflicting factions, that of the productive commoners and that of the ruling establishment…
Niccolò Machiavelli, "Book 1, Chapter IV That Dissension Between the Senate and Common People of Rome Made it Free and Powerful”, Discourses on Livy (1531)
So there you have it. Don’t worry about “losing the republic”; it’s long gone. So the bad news is that we don’t live in a republic, but the worse news is that we live in an empire. Our republic ended when the ruling establishment over-ruled the common people in a coup that established rule by unelected elites. That’s the truth, like it or not.
RF has a saying: Truth is great, but it’s not much good if you don’t do anything about it. So what are we going to do about it?
If we live in an empire, then who is the emperor? We discuss that, if a bit obliquely, in the article “The Fall(s) of Rome, and How to Decolonize Constantinople”.
The Romans lost their republic and Rome became an empire, but it did not get an emperor until Augustus, many years after the republic was lost. Are we living in the interim between the fall of the American republic, and the appearance of the United States’ version of the emperor Augustus? If so, is there anything we can do to prevent the rise of the first emperor of the United States? Or even to reinstate a truly representative government in America? RF has some ideas.