Power by Appointment, Laws by Steamroller

A man dies in office; his influence is praised; and, almost in the same breath, his seat is promised to his sister as a short‑term replacement. I read that Henry McMaster has announced he will appoint Darline Graham Nordone to serve in the place her brother held in the Senate. In the same account I see that the president, having lost a “go‑to power broker,” has nonetheless backed a bipartisan bill of sanctions, and has urged senators of his party to scrap a parliamentary procedure—the filibuster—that now requires sixty votes to pass another measure. These are small facts by themselves; yet they lay bare the principles on which a people either remain free, or slide by degrees into servitude.

When I wrote my "Second Treatise of Government," I defined political power as a right of making laws with penalties only for the public good, and always held on trust from the people, who are by nature free, equal, and independent. That trust is the first thing we must examine. In the appointment of a legislator—whether by election or by some emergency procedure—the question is not whether the appointee bears the same name as the deceased, nor whether she was dear to him, but whether free and equal persons could reasonably consent to be bound by laws made with her voice. Blood may fit a man to inherit his brother’s land; it does not of itself fit anyone to inherit a share in the coercive power of the laws over other men’s lives, liberties, and estates.

I do not say that every appointment to fill a vacancy is usurpation. A people may, for the avoiding of greater inconvenience, consent beforehand to some rule by which a temporary substitute is named when a seat falls empty—so long as that rule is itself known, general, and subordinate to the people’s continuing right to choose their lawmakers. But where the rule is opaque to the people, or where the choice appears to be guided chiefly by private affection or party convenience, the burden of proof lies wholly on those who wield the appointing power. They must show that their act serves the public good and preserves the people’s property in the wide sense: their lives, their liberties, and their estates. If they cannot, what pretends to be government is but preference and patronage in a public dress.

The same standard applies to the president’s conduct in legislation. That he has backed a bipartisan sanctions bill tells me at least that the measure has passed through some contest of reasons among opposed factions. Whether such sanctions are truly for the public good—whether they protect the community’s safety without inflicting needless harm on innocents in their lives, health, liberty, or possessions—I cannot judge from so bare a report. Yet the form is recognizably legislative: differing parties, an agreement reached, the ordinary procedures respected. Where men deliberate under known rules, exposed to public scrutiny, each side fearing the judgment of the other and of their common masters, the people, there is at least some fence against arbitrary power.

But when I read that the same president urges senators of one side to scrap the filibuster in order to pass another act, my attention is drawn not to the content of that bill, of which I am told little, but to the attack upon the standing rule. The filibuster, as you describe it, is a procedure requiring a heightened majority—sixty votes—before a measure may pass. I do not say this number is sacred, or that such a device is in all times wise. Yet I know this: when one alters the settled forms of making law at the urging of those who hope thereby to carry a particular measure more easily, one confounds the people’s trust. Power becomes not a rule-bound office, but a tool shaped anew for each present desire.

In civil society, the great security men seek, and which I labored to describe, lies in having a known standing law and an impartial judge, so that no man is judge in his own case. Procedures in a senate are a kind of standing law for law‑making itself. If they can be laid aside whenever they obstruct the wishes of the moment, then those who now command a bare majority in that chamber sit as judges in their own cause, and the minority, and through them the people they represent, are left with little more than the condition of those in a state of nature—except that the force they face is now decorated with the name of law. Absolute discretion, whether lodged in one man or in a shifting majority that owns the rules as well as the votes, is still arbitrary power.

Prerogative, I once allowed, is a power in the executive to act sometimes without, even against, the letter of the law for the public good when urgent necessity leaves no time for consultation. Yet such prerogative is tolerable only so long as it is visibly directed to that good and remains revocable by the people through their representatives. To appoint a relative to a vacant seat, or to urge the sweeping away of restraints on legislation, are not acts of sudden necessity for the preservation of the community; they are acts of convenience in the management of policy. Here the plea of prerogative rings hollow. Where the rules of representation or of voting are bent to secure advantage on a particular question, the people would do well to remember that every such bending weakens the very cords by which their rulers are held to account.

I cannot from these few reports pronounce that trust has already been forfeited, or that a long train of abuses has begun which would justify resistance. But I can say, from principles I have long held, that a free people should look with a cold and steady eye upon any power that treats offices as family allotments, or checks upon the legislative as mere obstacles to be cleared away. Once men grow used to government by appointment and by procedural shortcut, they find too late that consent has slipped from substance to ceremony, and that the laws which bind them issue not from their own authority, but from the will of those who have learned how to rule the rules themselves.