Who makes the laws?—and who oversees them?


Author: Timothy Sandefur

Charles Krauthammer’s article in National Review today points out how the laws that affect our lives on a daily basis are generally not written by elected representatives, but by administrative agencies. And this relates to what we do, because very often when we sue a government agency, we’re told that we should seek a remedy through the “democratic process” instead of through the courts. In fact, the entire theory of post-New Deal constitutional law is that those whose rights are violated by economic regulation or the violation of property rights should just campaign to change the law, rather than asking courts to protect their freedom.

But individual property owners or small business owners have little realistic prospect of competing against the powerful lobbyists who benefit from eminent domain abuse or protectionist licensing laws. And as Krauthamer notes, most such laws aren’t even written by elected officials anyway, but by career bureaucrats who are not really answerable to elected officials—they generally can’t even be fired!

This is why people need courts to protect their rights. As Justice Robert Jackson famously said, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” They certainly should not depend on the decisions of unelected civil servants.