Where the last piece addressed the separation of powers between judges and legislators, this one, an amalgam of several talks I’ve given, raises questions about the other two sides of the separation of powers triangle: the executive-legislative and executive-judicial divides.
Imagine you’ve spent the past five years working on a new invention. You quit your job and even took out a second mortgage. After many ups and downs, you finally hit on something special. So now you endure the further cost and effort of applying for a patent to protect your idea, devoting tens of thousands of dollars and a few more years to that process alone. At the end of it all, the Patent and Trademark Office agrees your invention is novel. It issues a patent that affords you the exclusive right to make and sell your invention for two decades, a reward for devising something that stands to benefit everyone.
Or so you thought. Years down the road, someone emerges from the woodwork and argues that your patent should be revoked because your invention merely replicated an existing patent. Until recently, only independent judges and juries could strip patent owners of their vested property rights in duly issued patents. But lately things have changed. Now, anyone who wants to take your patent away can just file a petition with the director of the Patent and Trademark Office. And it turns out that the newly appointed director has different views from those that prevailed when your patent was issued. You see, the new director’s boss, the president, thinks other people should be able to make products similar to yours without having to pay you royalties; he and Congress these days are looking for “patent killers” to run the show. So the director sets out to ensure that your patent will be canceled. He starts by selecting the “administrative judges” who will hear the challenge to your patent, and he signals to them that invalidating the patent is a big priority for the new administration. It turns out, too, that these administrative judges can’t easily brush off the director’s pressure: They don’t have life tenure, the director supervises them, and he even gets to select which of them will participate in your case. In fact, if (somehow) his hand-selected panel doesn’t reach the outcome he prefers, he is free to add more administrative judges and order the case reheard. In the end, the outcome of your case comes as no surprise: The administrative judges unanimously vote to revoke your patent.
Sound like fiction—or maybe life in a regime where the rule of law isn’t as jealously guarded as it is here? In fact, this scenario is (loosely) based on allegations involving a real statute in a real case: the America Invents Act and Oil States v. Greene’s Energy Group. There, my Court upheld the act against a challenge alleging that it violated the separation of powers by allowing executive branch employees to exercise powers that previously belonged exclusively to the judiciary’s independent judges and juries. (Needless to say by now, I dissented.) And it illustrates the topic I’d like to discuss with you: the dangers that follow when we fail to police the separation of powers.
I’ve spoken before about the importance of the separation of powers between judges and legislators, how that separation protects our liberties, and the dangers that can arise when the lines between those powers dissolve into a muddle. But that aspect of the separation of powers is, in some sense, the easy one. In the legal profession, we have spent a lot of time and effort in recent years focusing on the difference between legislators and judges—and seeking to refine our theories of interpretation to honor that divide. The return of textualism and originalism to the forefront of legal interpretation debates may be attributed in large part, I think, to a renewed appreciation that they are the only theories that respect the judge’s proper role under the Constitution. But in all our debates over the boundaries between judges and legislators, I sometimes wonder if we have neglected attending with equal care to the boundaries between executive and judicial functions and between the executive and legislative roles.
Today, I would like to focus on those two sides of the separation of powers triangle. The framers firmly believed that the rule of law depends on keeping all three governmental powers in their proper spheres. They knew, too, that eliding these boundaries can prove powerfully tempting. Handing over judicial functions to the executive branch, for example, surely holds much allure, as my hypothetical illustrates: Agency employees may be more easily controlled than judges, their outcomes more easily assured, and their processes more efficient. But the founders also knew from hard experience with the Star Chamber and the Privy Council about the dangers of executive “courts.” They knew that when the executive is free to withdraw your legal rights, those rights are no longer protected by neutral legal principles, the judgment of independent judges, and a jury of your peers. Instead, they may be taken with the efficient dispatch of a political agent with political designs. Now, I am not suggesting that we face dangers today remotely on the scale of those the framers confronted. But I do wonder if sometimes we are insufficiently attentive to the costs that accompany departures from the Constitution’s design.
LATER, I WILL RETURN to some questions about the separation of powers between the executive and judiciary that cases like Oil States invite. But I’d like to start our discussion with the executive-legislative divide. The Constitution, of course, vested all federal legislative powers in Congress. And it deliberately made the legislative process a hard one, demanding the participation and assent of a large number of representatives in two separate houses before a new law can be enacted. Meanwhile, the framers did much the opposite when it came to designing a branch to enforce the laws. They vested executive authority in a single president on the conviction that, if a law can survive the arduous legislative process, it deserves faithful and vigorous execution of the sort you cannot expect from committees.
Today, these lines often appear blurrier to us than they did to the framers. More and more, Congress “delegates” its legislative authority to executive branch agencies and tasks them with solving the pressing problems of the day. And what happens when the power to legislate is effectively transferred from a branch the framers designed for deliberation to one they designed for prompt action? In the first place, you get exactly what you’d expect: a lot more law. For some time now, agency-made law has far outpaced congressional output. Consider the (admittedly crude) data from 2016. According to Clyde Wayne Crews, federal departments, agencies, and commissions issued 3,853 rules, while Congress passed and the president signed “just” 214 bills. That works out to about 18 agency-made rules for every congressional statute. Nor was 2016 an anomaly. The decade before that saw about 27 rules for every law. The comparison holds, too, not just when it comes to the number of laws but the number of pages they cover. At the end of 2012, the number of pages in the Code of Federal Regulations exceeded the number of pages in the United States Code by a factor of nearly four—topping out at over 160,000 pages. Nor does the Code of Federal Regulations include the many thousands of pages of other “sub-regulatory” proclamations, memoranda, guidance documents, bulletins, circulars, announcements, and the like that federal agencies issue every year. All of which are often practically as binding as any statute.
Naturally, some of this output is vitally important. It addresses the regulation of financial institutions, our national defense, and workplace safety, among many other things. But some of this energetic executive output also includes rules that regulate the very fine details of private conduct and back it up with the threat of serious criminal penalties. Consider this example unearthed by A Crime a Day: chapter 21, section 155.194 of the Code of Federal Regulations, a provision titled simply “Catsup.” This regulation provides, among other things, that if you want to sell a food product called “ketchup” or “catsup,” you must first test the consistency of the product in a contraption called a Bostwick Consistometer to ensure that it flows at a rate of no more than 14 centimeters per 30 seconds at a temperature of 20 degrees Celsius, give or take a degree. If your ketchup doesn’t measure up, you may have to label it “Below Standard in Quality.” And if—heaven forbid—you sell ketchup that the federal government considers too runny without labeling it as such, you may have committed the federal crime of selling misbranded food, punishable by up to a year in prison for each violation. Madison warned that what we call “the rule of law” depends on the existence of laws that are reasonably clear, finite, and stable. Only then can people plan their lives and order their affairs. The rule of law comes under threat, he warned, when the laws become “so voluminous that they cannot be read, or so incoherent they cannot be understood.” And you might reasonably wonder where we stand on those metrics today.
When lawmaking moves from the legislative to the executive branch, it’s not just the amount of lawmaking that changes either. You may remember this story from your high school civics class. When Thomas Jefferson returned from France after the Constitution was written, he reportedly sat down for breakfast with George Washington. Jefferson criticized Washington for having agreed in his absence to a second chamber in the legislature, the Senate. Washington responded in this way: “Why,” he asked, “did you pour that coffee into your saucer?” “To cool it,” Jefferson answered. “Even so,” replied Washington, “we pour legislation into the senatorial saucer to cool it.”
As Washington saw it, the difficulties of the legislative process were essential to its design, purposefully placed there to ensure that laws would be more likely the product of deliberation than haste; more likely the product of compromise among the many than the will of the few; and more likely to respect minority interests than trample on their rights. As Hamilton explained, “The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest.” Because no bill in our legislative process can become law without the assent of a majority of both houses of Congress and the president—three entities elected at different times, by different constituencies—passing a statute almost always means compromising, and in particular compromising with those who represent minority interests. Meaning that minority groups have a strong bargaining chip to protect their interests, achieve concessions, or outright topple a bill. The whole point of the design is to involve a wide spectrum of viewpoints and distill the best each has to offer through deliberation and negotiation. Meanwhile, of course, only one party at a time controls the executive branch. So if the executive is allowed to make law, it has far less need to take account of minority interests; less incentive to deliberate than act; and less need to compromise. One can, as well, expect the law to flip-flop pretty much whenever one party takes the presidency from the other. The result: Our executive-made laws are more likely to be winner-take-all, less likely to reflect the virtues of compromise and deliberation, less likely to respect minority voices, and more likely to be the product of haste and partisan passion.
Here’s still another question. What about the democratic accountability of those who make the laws? Under the Constitution, the answer is supposed to be pretty clear. Congress makes the laws and you are free to vote your representative in or out at regular intervals. But who do you blame for executive laws that you think ill-conceived, voluminous, or incoherent? Can you name the people who run the FCC, FTC, NLRB, or SEC? Even if you can, it’s not like elections are held for those who lead these agencies. To be sure, many agencies report to the president, who is, in turn, democratically accountable to the people. But presidential elections tend to be about the big-picture questions—war and peace, not individual regulations. Nor can presidents always control these agencies. As Professor Jonathan Turley reminds us, only about 1 percent of executive agency positions are filled by presidential appointees, and entire sectors of our national life are regulated by “independent agencies” insulated from presidential control. Churchill once said that the world is divided into people who own their governments and governments who own their people, and it is vital we never cross that line.
Now, you might reply, at least our elected representatives in Congress maintain some level of control here, for Congress can always impose new restrictions on agencies, undo their work, or even eliminate them. Maybe. But maybe, too, it’s sometimes rational for legislators to divest themselves of responsibility and hand off today’s hot potato to an agency. After all, legislators can then tell constituents that they have “solved” the “problem” by adopting legislation directing the agency to fix it—and at the same time they can blame the agency later if their constituents don’t like its chosen solution. Even more than that, maybe it’s sometimes rational for legislators who cannot enact their full policy program consistent with the Constitution’s demanding legislative process to pass what they can, delegate the rest to the agency to decide, and then try to cajole regulators to finish the job. So if we trust Congress to defend its legislative turf from the executive branch, we’re likely to be disappointed. And, besides, why should we leave the enforcement of the separation of powers to trust? The Constitution didn’t vest the legislative power in Congress to protect Congress. That assignment was just a means to an end, and the end is preserving the liberty of the people. When separated powers unite, it is their freedom that stands at risk.
NOW LET’S RETURN TO the executive-judicial side of the separation of powers triangle where I started with our inventor and the Oil States hypothetical. The Constitution assigns the executive the job of implementing our laws and the judiciary the responsibility for interpreting them. For these tasks, the framers created diametrically different institutions. Unlike the politically accountable and energetic executive, the judiciary was designed to be insulated from political pressures so that people could be confident that their cases and controversies over the meaning of existing laws and past facts would be resolved neutrally.
But here, too, the separation of powers has come under some strain, with power gravitating away from the more deliberative and neutral processes of the judiciary toward the more energetic and political ones of the executive. As Oil States illustrates, executive employees today often work under the nom de plume of “administrative judges” and claim the power to decide cases and controversies in proceedings that bear at least a passing resemblance to judicial trials and appeals. Nor do these administrative proceedings resolve only disputes over public rights. Often enough they claim the power to strip individuals even of their vested private rights. And often enough, as in Oil States, the administrative judges charged with deciding these cases are accountable to political bosses with agendas of their own; gone in these cases is the right to a neutral judge and a jury of your peers.
Even when it comes to the disputes that do remain within the judicial branch, executive agencies today enjoy considerable power. In relatively recent years, courts have decided to defer to agencies when it comes to the job of interpreting the law, effectively ceding to the executive a task previously thought a core judicial responsibility and competence. Perhaps the most well-known of these deference doctrines is the Chevron doctrine. Chevron says that if a statutory term is ambiguous, a judge must accept any reasonable gloss on the law the agency can supply—even if the judge is convinced it’s not the best reading of the statute’s terms. The related Auer doctrine requires judges to do much the same for an agency’s interpretation of its own regulations. So now, not only do executive agencies get to write the regulations, not only may they enforce them too, but they are even allowed to resolve any ambiguities that later emerge in favor of their preferred policy outcomes.
In a short and recent span, as Justice Clarence Thomas has noted, courts have taken these doctrines and run with them. They’ve deferred to an agency’s interpretation of a different agency’s regulations. They’ve deferred to agency interpretations that were inconsistent with the agency’s previous interpretations of the same statute or regulation. They’ve deferred to agency interpretations advanced for the first time in litigation. They’ve deferred to agency interpretations when it comes to criminal sentencing. Under the Brand X doctrine, the Supreme Court has even said that courts must sometimes overrule their preexisting judicial interpretations of the law when an executive agency wants a different result.
What’s the upshot of affording the executive so great a role in judicial functions? In the first place, it can make it exceedingly difficult for ordinary people to know what the law is (and even where to look for it). Under our deference doctrines, it’s not enough anymore to look to the statute books and the decisions of courts interpreting them. You also have to worry that a completely contrary and binding rule lies buried in the appendix to an agency’s guidance manual—maybe the third manual issued in as many years. Even then, you still have to predict accurately every reasonable possibility of what the law could be in the future. For now an agency can disagree with a court’s precedent as a matter of policy and demand its overruling. In a world like that, should we be concerned (as Hamilton was) about “subjecting…men to punishment for things which, when they were done, were breaches of no law,” something that “ha[s] been, in all ages, [a] favorite and most formidable instrument[] of tyranny”?
Nor are these the only potential costs to consider. The founders insulated the judiciary from political pressures to ensure that judges would apply existing laws equally to everyone regardless of their present popularity. As Hamilton put it, this kind of independence was needed “to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” Remember, too, that when it comes to adjudicating cases and controversies, we’re talking about assigning liability based on past actions that cannot be undone. It’s not like the job of passing new legislation that usually applies only prospectively, with fair notice given to everyone about the need to conform their conduct to the new rule. In adjudicating cases and controversies, the decisionmaker knows exactly whose ox will be gored by his decisions and the victim has no chance to alter his conduct to conform to the judgment. So when independent judges and juries give way to political decisionmakers in deciding cases and controversies over past facts, should we worry about the consequences for unpopular persons and causes? And what happens when the best reading of the law a neutral judge can muster gives way under our deference doctrines to an inferior gloss produced by administrative judges who are handpicked for each case by a political boss?
Consider the case of Yellowbear v. Lampert. Andrew Yellowbear, in prison for murdering his daughter, is the kind of person who needs to be kept in special housing because his crime is so heinous other prisoners are likely to harm him. Given his unpopularity, it’s perhaps unsurprising that, when he sought to access the prison’s existing sweat lodge so he could exercise his Native American faith, executive officials refused. In response, my old court (the Tenth Circuit) had little difficulty applying a federal statute prohibiting religious discrimination to hold that Mr. Yellowbear was entitled to some access to the sweat lodge like other prisoners. Likewise, my court didn’t hesitate to apply the same set of statutes to protect a Muslim prisoner who required halal food, or to shield a family-run business from federal mandates that would have forced family members to violate the dictates of their faith. None of these outcomes would have been possible if the original executive decision hadn’t been reviewable by an independent judge. Can it be any surprise a Wall Street Journal study has found that, over a five-year period, the agency it studied won more than 90 percent of its cases before its own administrative judges but fewer than 70 percent of the cases it brought before federal judges?
Finally, consider the loss of civic involvement. The judiciary isn’t just made up of life-appointed judges who have considerably more freedom to depart from majoritarian norms and political pressures than their counterparts in the other branches. It’s also composed of juries. In this way, the judiciary might be said to be simultaneously the least and the most democratic of the branches. Yet like judges, juries are notoriously independent. They do not stand for election and they answer to no one. So while they are of the community, they do not have to answer to the community. It’s the very independence and common sense of juries, their ability and willingness to cut through dogma and doctrine and technical legalese, that the founders and so many generations before and since have found so valuable. Of course, litigants in court may opt out of a jury trial, but they may also demand it, something they cannot do in administrative tribunals.
Nor is the loss only the litigants’. Participation in juries is the closest many people ever get to participating in their government. Studies suggest that serving on a jury may lead to increased electoral engagement, especially among those who have not previously participated in elections. Studies suggest, too, that participation in the jury system increases significantly participants’ evaluation of our legal system. All of these civic goods disappear when cases are moved from judicial courtrooms to administrative conference rooms.
THE CONCERNS I’VE DISCUSSED here are nothing new. As long ago as 1933, the American Bar Association created a Special Committee on Administrative Law. Soon the committee voiced concerns that the cascade of new agencies was commingling executive, legislative, and judicial functions in ways that could prove problematic. Eventually, Congress adopted the Administrative Procedure Act as a step toward addressing these concerns. The APA created two ways for agencies to act—rulemaking and adjudication—and created two modes of proceeding for each—formal and informal. Unsurprisingly, formal proceedings offer considerably more procedural protections.
Generally speaking, in informal rulemakings an agency suggests a new rule, the public comments on that proposal, and then the agency makes adjustments accordingly before issuing a final rule—or deciding not to issue a final rule at all. When the agency does issue a final rule, that rule can and does often look different from the original proposal; to be permissible, a final rule only needs to be a “logical outgrowth” of the proposed one. Formal rulemaking, by contrast, requires an agency official to preside over a verbal or written proceeding featuring cross-examination and forbids that official from engaging in ex parte communications. The agency also bears the burden of proving that the rule is supported “on consideration of the whole record…and supported by…substantial evidence”—something the agency may not need to prove in an informal rulemaking.
The story is much the same when it comes to adjudication. In informal adjudication, the requirements are relatively few. Proceedings are presided over by officials who are often subject to oversight by others in the agency (just as in Oil States). These officials may even perform other duties within the agency in addition to their “judicial” responsibilities—including prosecuting and investigating other cases. By contrast, formal adjudications afford more protection for those involved. Parties may present their case by verbal or written evidence, conduct cross-examination, and submit rebuttal evidence. Parties are also entitled to a hearing where an administrative law judge (or the agency head) will preside. Administrative law judges do not enjoy the same independence as federal judges, but unlike some decisionmakers in more informal adjudications, these administrative law judges generally cannot have their pay cut without approval from a separate entity called the Merit Systems Protection Board.
When Congress adopted the APA, most everyone expected that formal proceedings would be quite common. That understanding held true for a while, as formal devices initially “dominated the administrative law landscape,” in the words of the Administrative Conference of the United States. But today formal proceedings are a vanishing breed; formal rulemakings in particular, as Professor Aaron Nielson has explained, “ha[ve] been effectively exiled from administrative law.” Nor can it come as a surprise either that agencies have pushed back against formal processes given the many advantages informal processes hold for them—or that courts have acquiesced in these agency efforts given our deference doctrines.
Agencies not only enjoy a great deal of leeway today when choosing whether to proceed informally or formally, they also have considerable discretion when choosing whether to proceed by rulemaking or adjudication. In a case called Chenery II, the Supreme Court held that an agency can sometimes even create a brand-new rule in an adjudication and apply that new rule retroactively to the parties before it (who, of course, lack any notice that might permit them to adjust their conduct to conform to the new regulatory demand). To be sure, this retroactive-rulemaking-by-adjudication has rested uneasily in our due process jurisprudence and has proven a frequent target of criticism. Justice Robert Jackson—President Franklin Roosevelt’s attorney general and himself an architect of the administrative state—penned a forceful dissent in Chenery II. He argued that the Court was upholding an “assertion of power to govern the matter without law,” something he thought would (in the words of Justice Benjamin Cardozo) reduce “[l]aw as a guide to conduct…to the level of mere futility.”
In fairness to the Chenery II majority, it didn’t think the retroactivity problem would prove significant in many cases because it didn’t expect agencies to make a lot of new law through adjudication. Indeed, the majority wrote that agencies should use rulemaking procedures “as much as possible.” But if that was the Court’s expectation, reality has fallen far short. Agencies today routinely announce new rules while adjudicating individual cases. In fact, some agencies almost never engage in rulemaking and create virtually all of their new rules through adjudication. It’s a result that may be at least a little ironic considering that Congress created some of these agencies precisely so that they could formulate clear ex ante rules for people to follow. But it’s a result that cannot come as much of a surprise. For, again, what rational agency would choose to shoulder the burden of providing notice and allowing public comment from the whole of the people on a proposed rule when it could avoid that burden by simply announcing the same nationwide rule in the course of an informal adjudication of a discrete case against a single private party?
If you’re beginning to wonder whether the APA’s procedural protections designed to safeguard individual liberty on the front end may have fallen short of initial expectations, you might also wonder about the judicial review procedures the APA sought to provide on the back end. During the APA’s drafting process, some suggested limiting judicial review of an agency’s legal interpretations (at least sometimes) to the task of asking merely “whether the administrative construction is a permissible one.” But in the end Congress chose a more robust formulation, directing that a “reviewing court shall decide all relevant questions of law, [and] interpret constitutional and statutory provisions.” That language seems to suggest that courts must decide questions of law for themselves without deference to agency interpretations. Yet, as we have seen, modern courts may have nearly re-created for themselves this discarded standard of review through Chevron and related deference doctrines.
Nor is the problem limited to questions of law. Generally, the APA allows courts to strike down an agency’s factual findings in adjudication only if they are unsupported by “substantial evidence.” But in my time as a judge, I’ve seen at least some cases that might make you wonder if even that deferential standard has been watered down. Consider Mathis v. Shulkin, a case that came to the Supreme Court during my first term. There, lower courts seemingly created out of whole cloth a presumption that examiners at the Department of Veterans Affairs are competent to render expert medical opinions against veterans seeking compensation for service-related disabilities. So now substantial evidence can sometimes be effectively guaranteed by mere presumption. Or consider Compass Environmental, Inc. v. Occupational Safety & Health Review Commission, where the Tenth Circuit upheld an agency’s sanction against a private company even though it presented no evidence that the company violated industry standards, as the law required; instead, the agency pointed only to alleged violations of the company’s internal policies without seeking to show that they reflected (rather than exceeded) industry standards. Here, substantial evidence came from, really, no evidence at all.
But even putting all this aside and overlooking how the APA might have failed to realize its initial promise, you might wonder whether it was ever intended to be the final word. Those who enacted the APA in 1946 were well aware that, in the words of Justice Jackson, “[e]xperience may reveal defects.” And both our world and our administrative state have changed massively since 1946. The federal civilian workforce outside the Department of Defense has grown by more than 70 percent, and the length of the Code of Federal Regulations has increased perhaps sevenfold. Not only are there far more agency rules, but they can bear far more significant impact. Today, a single federal rule can disrupt entire segments of our national life and change radically the way hundreds of millions of people work and live. Yet we still live under pretty much the same administrative law structure as we did in 1946, at least those portions of it that haven’t been effectively brushed away in practice. If the men and women who helped draft the APA were acutely aware of the challenges agencies could pose in their time to the separation of powers and the liberties our constitutional design was meant to serve, you might wonder whether we may safely ignore these same concerns in our own time.
TO BE SURE, the practical benefits that flow from enforcing the separation of powers in an individual case can sometimes seem hard to see—maybe especially when compared (like apples vs. oranges) against the systemic efficiencies that fusing powers in executive agencies can provide. So what if a Caring Hearts, an Oil States, a De Niz Robles, or a Mathis suffers an injustice? That may be regrettable, but accommodating their individual concerns would be costly. What matters more, some might claim, is justice-in-gross; government must be allowed to work efficiently. But the founders saw virtue in the separation of powers and a government that is deliberately deliberate. Where others see inefficiency in the separation of powers, they saw fair notice; protection for the inherent value of every individual person, including especially dissenting voices; democratic accountability; and the rule of law as administered by independent judges and juries. By transferring more and more power from the legislature and judiciary to the executive, we alter piece by piece the framers’ work and risk the underlying values it was designed to serve. Like a tower in the game of Jenga, pull out this block or that one and the tower may seem largely unaffected, especially if you do it with a bit of finesse—and the lawyers who come up with justifications for the blending of powers have plenty of that. But keep pulling out blocks, and eventually what started out as a strong and stable tower will begin to teeter.
Madison and the founders held the view that “[n]o political truth is” more important to “liberty” than the separation of powers because the “accumulation of” power “in the same hands” inevitably leads to “tyranny.” We might ask ourselves today: Do we still agree? And if we do, how would we grade ourselves in bearing witness to that truth?
Alexis de Tocqueville was one of the keenest students of our new republic. He offered us this insight, which I leave with you tonight:
After having thus successively taken each member of the community in its powerful grasp, and fashioned them at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided: men are seldom forced by it to act, but they are constantly restrained from acting: such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd.
I have always thought that servitude of the regular, quiet, and gentle kind which I have just described, might be combined more easily than is commonly believed with some of the outward forms of freedom; and that it might even establish itself under the wing of the sovereignty of the people.