Ask a student of history – at least one who has just finished studying for his ancient history exam – what date Rome fell. 476. That’s the historic date of the fall of Rome. But Rome in 476 would not have been significantly different from Rome in 475. Conversely, Rome in 475 would have been unrecognizable to a Roman citizen from Jesus day, which would have been unrecognizable to a citizen from 250 years earlier. It’s true that daily life may have been much the same between eras. But when you look at the government and civic life of Rome, things were very different. The “Roman Empire” had not even been ruled from Rome since 286. That’s when Diocletian moved the capital from Rome to Milan. It was later moved to Ravenna. So, when Rome “fell” in 476, it wasn’t even Rome that was falling.
To put it another way, the fall of Rome was a long time in coming. 476 marks the day that Rome had an emperor who was actually part of the invading tribes. It is the date after which you can no longer meaningfully speak of a Roman Empire. But by 476, Rome was so much less than it had been, that the new emperor would not have seemed odd to the average Roman citizen. The changes were slow and incremental. But the Roman Republic of 200 BC was not the same as the powerful Roman Empire of 200 AD, which was not the same as the all but extinct Roman Empire, of 475 AD. Just as Rome wasn’t built in a day, neither was it felled in one.
Once upon a time, there was a Roman Republic. The senators and tribunes actually passed laws. There were two consuls who served as an executive branch. Over time, deference to the consuls, and numerous military coups led to a single executive who held all the power. The Senate, cowed into obedience by the emperor’s command of the military, became nothing more than a rubber stamp for the executive. Laws were no longer passed, they were decreed. There were attempts at reform, but the Senate could not muster the courage or fortitude to stick with those reforms.
Once upon a time in America, the Legislature actually passed laws. The Executive signed and enforced them. The Courts interpreted them. When that became too onerous a process, the legislature began writing broad outlines for executive departments. Departments and agencies wrote regulations. When even those became too politically difficult to pass, the Supreme Court helpfully obliged, finding penumbras and emanations in the constitution. Laws were now dictated to the legislature, instead of written by them. But the pious fiction was still maintained that what was being done was according to the constitution.
When the first Obamacare case came before the Supreme Court, the Chief Justice attempted to explain a way – a tortuous one to be sure – that the Supreme Court could interpret the law in fidelity to the constitution. With Obamacare 2.0 before SCOTUS, the fiction was no longer tenable. The Supreme Court admitted that there is no justification in the law for the IRS to rewrite Obamacare. Yet the Supreme Court has given them the authority to de facto rewrite it to achieve the objectives of the executive branch. This was a bridge uncrossed until now.
The Supreme Court has previously found rights not in the constitution, and then written laws to enforce them, but they always maintained that they were merely interpreting what was already there. There was a legal justification, even if it was absurd. Now, they have admitted that not-laws must be given force of law by those who are not empowered to make laws, to achieve the goals which the emperor – sorry I mean President – feels are important. Which is to say that, like ancient Rome’s move from Republic to Empire, we are now a nation of men (specifically the president and his regulators) not laws.
Some presidential candidates are suggesting ways to fix this or that aspect of the problem. But the more fundamental problem, as Chesterton observed, is that “despotism can be a development, often a late development and very often indeed the end of societies that have been highly democratic. A despotism may almost be defined as a tired democracy. As fatigue falls on a community, the citizens are less inclined for that eternal vigilance which has truly been called the price of liberty; and they prefer to arm only one single sentinel to watch the city while they sleep.”
We have legislators who do not even bother to read the laws that they pass, and a court willing to give unlimited deference to an underling of the executive who is unashamed to write what he wishes those laws should have been. Does this sound like an early form of despotism. If not, it is certainly a fatigued democracy that prefers to arm only one single sentinel to watch the city.
The fall of Rome took centuries. There were many steps in the process. When historians look at the United States, there will likely be a more obvious moment for them to consider than this one. It may be, as my libertarian friends argue, the Civil War, when it was no longer These United States, but The United States. (A view I would likely find far more persuasive, were it not for my parents unusual choice of names.) Likely, it will be a future moment, one that seems inconsequential at the time, when those historians will say, “Beyond this moment, it was no longer the United States.” But the last week of June 2015 will be studied by scholars, if not students. And I believe that they will mark it as the time that the United States shifted from being a nation of laws to a nation of men. Of course, we have long been a ruled not by laws, but by regulations. This is merely another subtle shift.
Attempts are being made to return us to a nation that is more than the whims of a few. But the foundations are no longer solid. There were attempts throughout the years to turn Rome back. But the momentum of laziness that leads to a tired democracy is almost impossible to reverse. Greece couldn’t do it; neither could Rome. But that does not mean we shouldn’t try. But where to start?
Coming soon: Part 2.