| Advancing the principles of
in the 21st century
|Governance of the people, for the people and by the people|
The United States Constitution was established on the governance model presented by John Locke (1632-1704) in his Two Treatises on Government (1689). Locke defined the principle whereby all men are created equal and have a God-given inalienable right to life, liberty and property. As will be discussed in greater detail below, property rights are essential to human life and liberty. And contrary to popular belief, environmental protection and sustainable development depend on it. Locke demonstrated that the foundation of a progressive civilization, as outlined in his Second Treatise of Government, begins with natural rights rights to what Locke terms "life, liberty and estate." These rights do not derive from government, according to Locke, but are God-given natural rights inherent to all men. Thus, these rights have existed before government. Sir William Blackstone (1723-1780) and others refined these ideas, and Thomas Jefferson made them the cornerstone of the Declaration of Independence, which, Jefferson claimed, is based entirely on the "Laws of Nature and of Nature's God."
The underlying principle of this enlightenment was simple: Civilization is governed by certain natural laws. Violating these laws does not break nature's physical laws, but only results in man eventually breaking himself. Blackstone claimed that this natural law is "superior in obligation to any other. It is binding over all the globe, in all countries, and at all times; no human laws are of any validity if contrary to this.... no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture."4 When Thomas Jefferson penned the Declaration of Independence of the United States, he forevermore established this now famous fundamental principle, "That to secure these Rights, [of life, liberty and the pursuit of happiness] Governments are instituted among Men, deriving their just Powers from the Consent of the Governed."
These principles governed the writing of the United States Constitution which established a constitutional republic for the United States. In a Constitutional Republic the government is accountable to the people through elections, and has many checks and balances designed to break up and distribute power. This Republican form of government is what made the United States the greatest nation in history because it permitted the creative power of man to be unleashed while minimizing corruption and abuse of power. But these principles are almost unknown in the rest of the world. They are rapidly becoming unknown to all but the oldest generation in the United States because they are no longer taught in America's public school system.
What is being taught in American schools today, and is the norm for most of the developed world, is the model of governance based in the philosophies of Jean Jacques Rousseau (1712-1778) and his Social Contract (1762) which focuses on the abstract "general will" of the people.5 It forms the heart of most European socialist governments, and forms the basis for the writings of Karl Marx and therefore communism. Today it is expressed as the "public good" and depends on a "statist" approach to government whereby the state is superior to the individual and all individual rights are derived from the state.
Rousseauian command and control is diametrically opposed to the Lockean model of freedom and individual rights. In the name of the wholeness of man, Rousseau argues that individualism is harmful because individuals focus on self-interest, individual rights, and property. Rousseau sees "man as a malleable creature who lives in simple equality with his fellow man" to be molded by an enlightened government.6 While the U.S. Constitution is established on Locke's principle that all men have equal opportunity to succeed or fail in attaining prosperity, the Rousseau socialist model demands that all men equally share the existing prosperity. Rousseau seeks to achieve this equality through a vague socialist metaphysical concept called the "general will;" a will that is supposedly free from our subjective selves and personal interests.
It is the enlightened state which determines the general will, or common good, of the people. Rousseau likewise places strict social control on private property to prevent the inequalities that he believes will lead to social division and private interest. In the Social Contract, Rousseau acknowledges the great force of the state by admitting that raw force can be used to bring consent to the general will; "That whoever refuses to obey the general will shall be constrained to do so by the entire body.... In this lies the key to the working of the political machine; this alone legitimizes civil undertakings."7 In doing so, Rousseau states the individual will "be forced to be free" from his own selfishness.
French economist, statesman and author Frédéric Bastiat (1801 -1850) calls the Rousseauian ideal legalized plunder. In order to attain the socialist "general will" of Rousseau, the government must take from those who legally own something and give it to those who don't own it. "The law," claims Bastiat, "has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense [of life, liberty, and property] into a crime, in order to punish lawful defense...."8 Sometimes the "law places the whole apparatus of judges, police, prisons, and gendarmes at the service of the plunderers, and treats the victim when he defends himself as a criminal."9 (Italics added for emphasis) This, as we will see, has been the tragic pattern for environmental law in America.
When command and control governance is forced on people, it "substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives. When this happens, the people no longer need to discuss, to compare, to plan ahead; the law does all this for them. Intelligence becomes a useless prop for the people; they cease to be men; they lose their personality, their liberty, their property."10
Rousseauian governance can devolve into communism and dictatorship where the people are but mere cogs in the ruling elite's self-created governmental machine. At any level Rousseau socialism stifles creativity and invention by destroying economic freedom and by skewing the economic system to make it benefit the regulators, not the people. It always inhibits the creative ideas or technology that can solve the problems of modern society and environmental complexities. Because there is little to no accountability of the elite and their cadre of regulators to the people, corruption is inevitable which further stifles economic prosperity.
At best Rousseauian governance is a democratic socialism, in which the elite are at least partially accountable to the electorate that results in a type of benevolent dictatorship. Nonetheless, the people are plundered and the government is used to take from some to give to others in order to achieve "equality." The people are given little opportunity for self-governance, and often become so dependent that they become fearful of any threat or of taking risk.
There is yet another natural tendency of men, however, when they believe they are being plundered unjustly. They fight back. "Thus," explains Bastiat, "when plunder is organized by law for the profit of those who make the law" and those who benefit from the law, "all the plundered classes try somehow to enter by peaceful or revolutionary means into the making of laws."11 After attaining the power they desire, these victims either "stop the lawful plunder, or they may share in it."12 When everyone wants to share in the plunder, the democratic process devolves into a madness whereby "men seek to balance their conflicting interests by universal plunder.... As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish legal plunder. Instead they emulate their evil predecessors by participating in this legal plunder, even though it is against their own interests."13 Hence, in the United States, many believe it makes little difference whether the Republicans or Democrats are in power: Both parties propose laws that plunder particular constituencies without a second thought. They just do it differently.
Bastiat explains this degeneration further: "Under the pretense of organization, regulation, protection, or encouragement, the law takes property from one person and gives it to another; the law takes the wealth of all and gives it to a few whether farmers, manufacturers, shipowners, artists, [or the poor]. Under these circumstances, then certainly every class will aspire to grasp the law, and logically so."14 As various factions grasp powerful political positions to plunder for themselves, the law becomes vicious and destructive.
As long as law plunders by violating property instead of protecting it, "then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder. Political questions will always be prejudicial, dominant, and all absorbing. There will be fighting at the door of the Legislative Place, and the struggle within will be no less furious.... Is there any need to offer proof that this odious perversion of the law is a perpetual source of hatred and discord; that it tends to destroy society itself?"15 (Italics added) Does this sound like twenty-first century politics in the United States? The eventual result is paralysis and finally self-destruction. America's Founding Fathers understood this gruesome truth. That is why James Madison wrote in the Federalist Papers 10.21 and 10.22 that; "In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger..... [A] pure democracy can admit of no cure for the mischiefs of [the majority] and there is nothing to check the inducements to sacrifice the weaker party. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal securities or the right of property; and have in general been as short in their lives as they have been violent in their deaths." (Italics added)
James Madison clearly identifies why Rousseau's socialist model cannot work. It factionalizes an otherwise united people into special interest groups, each fighting to either take the other's rights or property for their own purpose, or defending their own rights or property from the other group. Instead of unifying the whole, as Rousseau postulates, his model invariably creates hostility and division within the whole, ultimately tearing itself apart just as is happening in the United States at the start of the Twenty-first Century.
Once the difference between the Lockean and Rousseauian models of governance is understood, it is clear that U.S. environmental law and all international environmental treaties follow the Rousseau model. As a consequence, the very foundation of freedom in America, and the world, is being undermined. The Rousseauian socialist model of governance creates a class system of supposedly "enlightened" intellectuals, or the privileged, who decide the "general will" then dictate by regulatory force what people can or cannot do.
Laws, rules and regulations passed and promulgated under the statist, or "big government" philosophy, are often arbitrary and capricious, favoring some while harming others. They are not designed to solve a problem in the most cost effective manner, while protecting the rights of the citizens. Instead they are designed to make enforcement benefit the ease and efficiency of the elite and enforcers. It can also be easily corrupted to directly benefit the elite or enforcers. The one-size-fits- all approach and the politicization of the Environmental Protection Agency (EPA) in administering environmental law is a glaring example of this, and has placed costly regulatory restrictions on some, while under-regulating others. Charges of corruption and misuse of power by the regulators has been a reoccurring problem for the EPA, especially in the past ten years.
This is especially true of the United States federal government. According to the U.S. General Accounting Office (GAO), federal agencies produced 5,476 final rules between April 1, 1996, and August 21, 1997. Too many of these regulations are either unnecessary or poorly designed, and needlessly inefficient and expensive as well. Furthermore, federal agencies have not developed a system for making rational and well-informed decisions about efficiently allocating their limited resources in order to maximize the health, safety, environmental, and other benefits expected from these regulations.
Environmental laws have created regulatory "takings" of private property by denying use of the land to property owners, and as a consequence, stripped hundreds of millions, perhaps billions, of dollars of property from American citizens, destroying families in the process. The value in land can represent a family's entire life savings, which is taken by the stroke of a pen, and without one dime of compensation. Often the restrictions are imposed because all other land is already developed, throwing the entire cost of protection on the last open-space landowners.
We must return to the Locke model of governance. Government must be
accountable to the people they serve and power truly divided among the
different branches of government as well as different levels of
government. The judicial and executive branches cannot make or change
law passed by the legislative branch according to whim, public opinion
or personal beliefs. Nor can the higher levels of government usurp
powers delegated to the local units of government. Finally, the weight
of evidence of environmental damage or violation is upon the
government, not the individual citizen. The government must
demonstrate hard, evidentiary science that damage is being done, not
theory or pseudoscience.