Arbitrary Power: Why We Have a Constitution


“We must follow the Constitution.” — “I look at all government action through the lens of the Constitution” These are statements you’ve likely heard me saying quite often throughout the short lifespan of this blog. And I wholeheartedly believe in them.

But…why?

Freedom of men under government is to have a standing rule to live by, common to every one of that society and made by the legislative power vested in it and not to be subject to the inconstant, uncertain, arbitrary will of another man.- John Locke

The answer starts with theory. John Locke says, “Where law ends, tyranny beings” and also “For where-ever the Power that is put in any hands for the Government of the People, and the Preservation of their Properties, is applied to other ends, and made use of to impoverish, harass, or subdue them to the Arbitrary and Irregular Commands of those that have it: There it presently becomes Tyranny, whether those that thus use it are one or many.”

John Locke was perhaps the “founder” of the concept of arbitrary power. He’d experienced its lethal effects while living under the arbitrary power of the English government.

Arbitrary Power Defined

So, you may be thinking, “What is arbitrary power? What are you talking about?”

I don’t blame you. I didn’t really understand what it is, or its significance, until I really dug into theory.

There are two definitions:

  • “Depending on will or discretion; not governed by any fixed rules; as, an arbitrary decision; an arbitrary punishment.”

and…

  • “Despotic; absolute in power; having no external control; as, an arbitrary prince or government.”

OK, both of these definitions are essential to understanding how arbitrary law fits into this puzzle of theory, the Constitution, and the U.S. government that I’ve been building. Pay attention to the language here (this is the 1828 dictionary definition). For something to be arbitrary it must depend exclusively on the will or the discretion of someone; meaning, it is not tied to, or held accountable by any external rules or restrictions. It’s arbitrary. It comes from nothing.


As an example, the English King possessed arbitrary power, meaning that his power was not confined by an external source of law because he was the law. This means that if he one day decided that all women over the age of 50 were no longer a use for society and therefore must be eliminated, well then, that was the law. His actions are up to his will or discretion. He is not confined by any external law.

Which is why it should be no surprise that arbitrary is also synonymous with despotism. Despotism is, of course, equivalent to a dictatorship. And what makes a dictatorship? What is the source of absolute power?

The absence of an external control.

Arbitrary Power, Government and the Constitution

I hope you’re following along here. Without a law outside of ourselves, we are left to our own devices. The same goes for government. If government is the law, there is nothing to which its actions are held accountable. This means that every decision the government makes is arbitrary and thereby despotic. Every government’s decision may not bring great harm to the citizenry, but that’s not really the problem. The problem is that since its decisions are arbitrary, there is nothing to stop it from making decisions that cause great harm to the citizenry.

If power is arbitrary, it is absolute. It is complete and it is despotic.

Which leads me to the U.S. Constitution. The Constitution is the Supreme Law of the Land. It is external to our government. It is the external control that is supposed to confine the U.S. government’s powers. It is the bastion of liberty because it is law that exists whether or not government exists. This means that the government is just as accountable to the Constitution as you and I are. The U.S. government, therefore, does not have arbitrary power.

Why?

Because its power is not dependent on the will or discretion of the government. No, its power is derived from the Constitution. The Constitution lays out specific duties that are to be performed by the government and then confines government action to only those duties.

The Constitution’s job is perhaps more important than any other government job. It holds the government accountable to something outside of government.

The Arbitrary Power of the U.S. Government

Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people. – John Quincey Adams

And this is the reason that it is so dangerous for the U.S. government to pass laws or engage in activities that are not within the confines of the Constitution.

For instance, nowhere in the Constitution is Congress given the power to write law about healthcare. And yet, today, Congress has passed numerous laws about healthcare. Which bodes the question. From where has Congress derived their power to write law on healthcare…if not from the Constitution?

And, that is the question, isn’t it? The answer is chilling.

The answer is…from nowhere.

Because if the U.S. government’s power does not come from the Constitution, it is arbitrary. Why? Because it is purely based on the will and discretion of the government rather than the external control of the Constitution. And that means that if Congress can write and get away with one arbitrary (unconstitutional) law, it can get away with any arbitrary law because now its power comes from nowhere. And if it comes from nowhere, it is confined by nothing.

Conclusion

Arbitrary power is most easily established on the ruins of liberty abused to licentiousness.- George Washington

This (arbitrary power) is why I continually harp on the importance of following the Constitution. As soon as the government acts outside of the Constitution, it has stepped into the dangerous waters of despotism. Not every arbitrary law passed is going to be harmful, but, without an external law to confine the power, who is to say the government cannot pass laws that turn out harmful? Without an external standard to compare the power to, there is no limit to the power. Make sense?

Ah yes, at this point, the legislative, the executive and the judicial have all engaged in unconstitutional conduct—-on so many levels. It truly is a curious reason why the U.S. hasn’t devolved into complete tyranny.

Perhaps that could be due to the fact that enough citizens still honor and respect the Constitution—and know enough about it—that the government is reticent of overstepping too obviously. They do want to keep their jobs. But, where they can get away with something unconstitutional, concerning issues about which the citizens are uneducated and unwitting, the government’s power swells.

And THIS is why we must know what the Constitution says and fight to keep our government accountable to it. Otherwise, we’re doomed to a despotism commanding an unseemly amount of arbitrary power.

The Liberty Belle

4 thoughts on “Arbitrary Power: Why We Have a Constitution”

  1. Indeed, we must know our Constitution and demand that our leaders follow it (if only they would!). Good stuff here…
    Also, wanted to mention that your title has a typo (so that you can fix it). You have Abitrary rather than Arbitrary.
    Cheers!

  2. Steve Jewell

    This post is so appropriate for this moment in our history,particularly in States where Governors have over-stepped their authority,making citizens criminals by their use of "Executive orders. " With your permission, I’d like to share. Thanks!

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