Chevron and Auer undermine the rule of law.
Legal scholarship is too often a game of small ball, where vast efforts are expended in pursuit of minimal gains, like a game of football with 50 downs, or trench warfare where lives are expended for mere inches. How vastly more interesting are Sir Thomas Browne’s puzzling questions. “What Song the Syrens sang, or what name Achilles assumed when he hid himself among the women, though puzzling Questions, are not beyond all conjecture.”
For the modern don, these are perhaps a little too obscure, but I can think of other puzzling questions that beg for an answer, such as just why America is quite so corrupt. In Transparency International’s Corruption Perceptions Index, the U.S. comes in at number 19, well behind most other First World nations in a measure of political corruption.
What, you thought Illinois didn’t count?
Sociological explanations might first come to mind, along the lines of what Marty Lipset has told us about America. These leave me unsatisfied, however, as they are tautological: They come down to saying that social norms are different because social norms are different. I incline, therefore, to institutional explanations that focus on America’s distinctive legal culture.
One might, for example, point to corrosive effects of a rights culture on steroids, where people are encouraged to press their claims without regard to the harms they cause. My body, myself—and I have a right to an abortion until the moment of birth, or perhaps a few days afterwards. I have a right to a same-sex marriage? Then bakers have a duty to make me a wedding cake.
I have something other in mind, however, the constitutional differences between presidential government in the United States and the parliamentary governments in the countries that rank higher (less corrupt) in the Corruption Perceptions Index. Not to mention the significant correlation between corruption and presidential government I found in The Once and Future King (Encounter Books, April 2014).
Firstly, the much-touted separation of powers immunizes politicians from oversight. The Administration is able to cover up its scandals—Benghazi, Fast and Furious, the IRS—by stonewalling Congressional investigations. There are rotten things going on, we all know it, and it’s all okay. It’s part of what makes America America.
One doesn’t see this in parliamentary governments, where corrupt, incompetent or merely unpopular prime ministers can be turfed out at any time in a non-confidence motion. As well, the Opposition has the option of keeping an issue alive as long as it wants. Oh, there’s always corruption of a kind, but you’d be amazed at how trivial it is by American standards. For example, Senator Mike Duffy has been suspended from the Canadian Parliament for accepting a gift to repay travel expenses of $90,000 that he had the right to expense. That’s hard to explain to Americans.
Then’s there’s the problem of minoritarian misbehavior. At the 1787 Philadelphia Convention, Madison expressed a concern about majoritarian misbehavior, for a majority that oppresses a minority. There’d be less of that, he said, in an extensive republic such as the United States than in a single state, because it would be harder for a majority group to coalesce in a large country. But there’s also an opposite problem, of minorities harming majorities, seen in the special earmarks demanded by Congressmen, in the Robert Byrd Centers for this that and the other thing in West Virginia, or in John Murtha’s Johnstown International Airport. One saw a spectacular example of earmarks in the scramble to pass Obamacare, with its “Louisiana Purchase” for Senator Landrieu and the “Gator Aid” for Senator Bill Nelson. Senate Majority Leader Harry Reid was unapologetic about the last-minute deals. “You’ll find a number of states that are treated differently than other states. That’s what legislating is all about. It’s compromise.” The President agreed. “As with any legislation, compromise is part of the process.” Earmarks were said to be banned after the Republican takeover of the House in 2011, but they really haven’t gone away.
That doesn’t much happen in a parliamentary system. A party must go to the polls as a national party, and the perception that a special region is favored, that there’s an odor of corruption, can humble a party. That’s what happened to the fat and comfortable Canadian Tories in 1993, when they fell from a majority of 156 seats down to 2 seats. Couldn’t happen here.
Might all this plausibly has something to do with perceptions about American political corruption? When an American says “politics ain’t beanball,” what he means is that political corruption doesn’t much bother him.
The Founders thought the Republic would survive if the people were virtuous. But what if republican institutions themselves sap one’s virtue?
Of course, cher lecteur, this is all very speculative. So how would you explain it?