Home | Author's Note | Foreword | Prologue | Introduction
Book Synopses | Afterword | Indexes | Commentary | About Us|Books
Originally published: 1945
421 pages
Chapter 15


Bertrand de Jouvenel

The nuances, details, and conflicts of society cause government to expand not because it must but because it can. Although men could solve their problems and differences among themselves they allow the state to step in to do it for them, and they allow that because it is easy. As well, they often think they might be able to influence the outcome of government's efforts to their own benefit. Conversely, these same nuances, details, and conflicts become increasingly complex and convoluted as government waxes more intrusive (the law of unintended consequences). The symbiosis is self-perpetuating.
     When the state becomes overbearing, by default, its relationship to the citizenry becomes almost wholly negative; it is based on a downward spiral of subtle or overt attempts at control on one side and growing defiance, self-expression, and individuality on the other. The latter eventuates when men find the ease of letting someone else solve their difficulties offers consequences they never meant or even contemplated.
     Although it is difficult to accept, democratic government mainly functions contrary to the purposes of its design because it functions mostly as those in charge want it to. The complexity of governance works to the advantage of those who act with intention and to the disadvantage of those who trust in institutions, or laws. There is a simple reason for this: Power.
     In this seminal work Bertrand de Jouvenel discusses government in terms different from those of other historians and theoreticians. Although we have considered Power primarily by reference to its form, de Jouvenel considers it in relation to its extent. The forms of Power


(democracy, republic, monarchy, theocracy, oligarchy, or dictatorship) inspire various theories, but its extent refers to reality. De Jouvenel explains how Power, grounded in human nature, has ever been on the increase, aided by apathy or fear, and in the modern world by technology, the treacherous allure of centralization and utopianism, and the swindle of untouchable bureaucracy.

The Leader
De Jouvenel came to his conclusions regarding Power via a path somewhat different from that of John Locke. Entertaining no substantial disagreement with Locke, de Jouvenel took the earlier philosopher's comprehensions to their logical and darker outcome. As can be seen in The Second Treatise on Civil Government (Chapter 1), Locke develops his theory of governance through an understanding of how rights came into existence-both through a person's own being (which was something individually "owned" as a property right) and through the right to one's possessions (which had value because of personal effort). De Jouvenel explores how people gave up some of their freedom through banding together to protect one another's rights and property thereby establishing security. The resulting community of action which aimed at supporting liberty and securing its gains naturally gravitated toward a need for leadership; thus Power established its foundation as the protector of progress. De Jouvenel investigates how Power at first came to reside
in an individual, and how that person enhanced his power by convincing other individuals and groups within society that he would represent their needs or aspirations or protect their families and thus he should be their leader.
     De Jouvenel then analyzes historical Power as it evolved in social aggregations larger than the primitive band. His core contention is that in that past era someone always rose to lead by force-not by agreement or default. As the size and number of groups that gathered for security grew, the unstable might of a sovereign (because there were always those who wanted the leader's power for themselves) became subject to how many subalterns he could convince to support him and how much wealth they could bring to his treasury. Over time, as the gentry (who had the wealth the ruler needed) paid more and more for the privilege of ensuring the sovereign's place (and thus their own) they also began to demand more say in how their protection was achieved and how their gold was expended.


     The relative strength of these partners varied over the centuries and more formal relations eventuated as the size of society grew. These new devices were in the form of constituent assemblies-groups that represented the people and spoke for them, first for their class, and ultimately for all citizens. These congresses were the precursors of today's legislative bodies. (To see additional details of the evolution of Power and its basis in property see Richard Pipes's Property and Freedom, [Chapter 11].) The power of these assemblies ultimately far exceeded that of the sovereign and the king at length became subordinate and eventually disappeared or was trivialized.
     De Jouvenel explores the weakness of early monarchies, founded in the voluntary nature of the support and protection offered to them by their closest allies-the nobility. The particular example of how a monarch raised an army is instructive in understanding all the forces at work: A medieval king could never form an army by fiat or through the equivalent of a modern military draft. He had to buy his armies, and their services ended the minute their remuneration stopped or their enlistments expired. (Even George Washington was subject to this relationship between armies and the power to create and hold them together.) In order to conscript men and require that they fight, some greater authority was necessary. This ultimate master arose when "the People" took over governing via a parliament or some other democratic medium. Involuntary recruiting became possible when a publicly constituted legislature that theoretically embodied the "general will" of the people decreed conscription; this law was accepted as the ostensible choice of the populace. One of the most intrusive and overwhelming manifestations of Power-that those in power represented the public's general will-thus arose and then flourished. This Power was defined and implemented by elected officials and deified by democracy.

Individual Freedom vs. The General Will
De Jouvenel was skeptical of the general will, especially when such was supposedly determined by representatives-not the people themselves. A main thrust of de Jouvenel's effort in On Power is to expose and then debunk the myth that any representative body necessarily voices the general will. If it were true that the general will could not be divined by the few then the power of government should be severely limited. Under this circumstance, only the most obvious matters (where real consensus was probable) should be decided by a legislature. In fact,


just the opposite was the case; the more difficult the question the more apparently prescient were the legislators.
     De Jouvenel observes that both conscription and the power to tax arose as protective endeavors, as measures of defense for the people. Communal protection embodied broad, practical efforts at security well before the tools of conscription and taxation took on a utopian glaze in the twentieth century. But when conscription and taxation were combined with the advent of democratic institutions Power was almost complete; the people did not object. We did this to ourselves.
     As de Jouvenel observes, Power perpetuates itself from inception. It justifies its expansion in the first instance by serving those over whom it rules-by protecting society against outsiders and keeping order within. Therefore, in the beginning Power was beneficial. Its first consequences were not viewed as negative or dangerous even though its origins and mechanisms were darker than its supposed effects.
     When society became too complex for an individual to rule, the instruments of modern governance were put in place (administrative agents and bureaucracies and representative bodies). They were proclaimed a substitute for the Power of the individual. These institutions eventually became a complex of governing compartments that the people themselves had to administer, "thereby going through phases of both command and obedience." As the populace became accustomed to having their own agents rule, and as they came to rely upon such safeguards as the separation of powers, checks and balances, judicial review, and a broad electoral franchise, they relaxed their vigilance: "We rule ourselves … how can anything go wrong?"

The State
However, when society became so large that not even one group (much less one person) could rule or manage it, the idea of the state was established. It was the entity to which all owed allegiance-because of its beneficence and the fact that it was constituted by the people themselves. We drove out the personal ruler (the king or emperor) and replaced that individual with representatives of ourselves who, as a group, were the physical embodiment of the old ruler's power. Ironically, the new rulers had much more Power than the old-fashioned king because we confusedly conflated them with ourselves and assumed an identity of their interests with our own. "They" and "us" were no longer separate. De Jouvenel finds this Power far from benign:


               It is making a fateful mistake to suppose . . . that the major political
               formation, which is the state, was the natural product of human sociability.
               It seems a natural enough supposition, for society, which is a natural
               entity, is just such a product. But a natural society is a small thing. And
               for a small society to become a large one a new factor is necessary. For
               that there must be fusion, and this in the great majority of cases comes,
               not from the instinct of association, but from that of domination.

Thus the public servant (whether elected or appointed) was born-that person who had a patina of authority, a core of righteousness, and who told us how to live simply because he had the ability to act for us (not necessarily with us, almost certainly not at our behest). He did this by means of his role as a governor, and he did this because he contended either that he knew more than we did, or worse, knew better than we did; he knew better because he could see more from his lofty perch,
could consider more from his wide experience, and could understand better through his personal obligation to look after those in his charge.
     De Jouvenel describes the formation and the later sustenance of the early state as being dependent on this Power and the concomitant ability to act with intention when Power was possessed. Whether that Power was held by the king, the church, the aristocracy or nobility of earlier times, or eventually a representative body, his theory about the control of society holds true today-but for slightly different, and slightly more hazardous reasons. Those in Power now relish their positions not solely for base egoistic domination or even substantial personal gain but out of an increased and ever-growing sense of righteousness-Power's most dangerous ingredient. However, as de Jouvenel cautions, there is an antecedent aspect even to righteousness: the every action of the public servant is still designed to first retain their hold on power.
     Once in control, the public servant's "will to Power" shows itself as a desire to do good. This is a "fatal conceit," in the words of Friedrich von Hayek, that trends in the direction of destroying society's chance for rational progress-rational progress being defined as progress that takes human nature and individual liberty into full account.
     In democratic regimes where "we the people" rule, we theoretically obey no one but ourselves and we are therefore free. De Jouvenel,


however, strongly disputes the notion that popular sovereignty ensures individual freedom. He resolutely states that

               [t]o identify those who govern with the people is to confuse the issue, and
               no regime exists in which such an identification is possible. . . . Those who
               govern are neither the people nor the majority: they are the governors.

This is especially true of the modern commonwealth (whether a nation or state or even a city), controlled by legislative bodies that are returned to office en masse in election after election. The politicians-who seem to see electoral success as affirmation of their efforts-become an elite "with a life and interest of [their] own." Practically speaking, however, their only real success is in fooling enough of the people enough of the time (on Election Day, to be specific).
     In actuality the intentions of these legislatures are administered by a standing army of civil servants-in de Jouvenel's coinage, "the Agentry"-but as he explains, this bureaucracy is in no direct way responsible to the people (or often the legislative bodies who fund them or the executive authorities who supposedly oversee them). The bureaucrats extend their own franchise in a symbiotic conspiracy with the politicians, conveniently elevating themselves and justifying their (theoretical) bosses. They simply extend government by proclamation-termed administrative rule-making-with essentially no oversight, except citizen vigilance.
     De Jouvenel observes that two additional developments helped make the state's power exceed the people's intentions. First, there arose the illusion that we have a government of laws and not men, even though "it is men who write, administer, and judge our laws." Second, technological innovations made possible enormous state Power; the Power to intimidate, to protect, to conscript, to tax, to direct, and to kill. De Jouvenel clearly explains why Power increases in spite of the supposed constraints the people can effect through their institutions:

               By all means let the people be an absolute sovereign in the hour of
               choosing its representatives, for in that way the representatives hold from
               it unlimited authority. But when it has conferred on them this authority, its
               role is finished and it is of no further importance: it is now the subject, and
               only the assembly [legislature] is sovereign. Only the assembly is

               the place where the general will is formed, and consultation with the people
               is no more than a species of cookery. . . . The members of society are
               citizens for a day and subjects for four years.

     On Power shows de Jouvenel perceiving these eventualities with seasoned logic. He also predicts their increase, as does Alexis de Tocqueville in Democracy in America (Chapter 8), but in a slightly different manner that seems more and more accurate with each passing decade. De Jouvenel uses the philosophical meanderings of Hobbes, Spinoza, Kant, and most effectively, Rousseau, along with the reflections of other less well-known theorists, to explain the conundrum of the sovereignty of the people versus the Power of the assembly. In this manner he explains that even the supposed protections written "in stone" are not very sturdy.
     Earlier philosophers had claimed that when the people voluntarily gave Power to a ruler-whether an individual or a council-they gave it unreservedly. Locke disagreed, contending that people reserve their personal rights, rights established through natural law. When formulating the American Constitution the Framers recognized these natural rights, which were then codified in the Bill of Rights by the first Congress-supposedly protecting them in this form in perpetuity. The problems inherent in the formulations of the earlier philosophers were thus allegedly solved; Americans gave over to an assembly (Congress) the right to order their society in its myriad and ever-changing configurations while protecting individual rights by embracing them in the impregnable Constitution. It is a nice compromise, if it works. However, Plato understood how man's nature undermined such expedients from their inception. He contends that

               good is one thing in nature and another in law; that in regard to justice,
               absolutely nothing is just by[in] nature, but that men, always divided in
               feeling about it as they are, are for ever making fresh arrangements in
               regard to the same objects.

     By way of example, if we believe the Bill of Rights is intact, try to express free speech by buying a campaign ad the day before an election; or enjoy the free exercise of religion in an educational venue; or appreciate the right of free association by defining membership in a private organization; or experience the right to bear arms by buying


a weapon for your own protection; or find comfort in the sanctity of private property by resisting the state's taking of your home by means of eminent domain for some other person's private economic purpose. All of these things are supposedly guaranteed rights in the Constitution. But the guarantees have been watered down or simply trivialized to the point of uselessness. Jefferson's sanctified written constitution, intended to protect us from the mischief of men, has failed to do just that. It is the violation of this precept through nothing more than the accretion of power and institutions vested in the political class that de Jouvenel writes about.
     Recognizing that modern Power is not as pretty as it should be (were it to effect modesty and self-control), de Jouvenel sees its underlying shabbiness cleverly disguised by an almost sacrosanct five-step process of circular reasoning. This is another law of politics and governance; the law of contradiction:

1. The people naively ascribe superhuman characteristics and expectations to their elected representatives-characteristics such as honesty, integrity, wisdom, impartial intelligence and judgment, and, supposedly, a vow of poverty-simply because they vote for them.

2. Since the people cannot watch the governors all the time (they have their own lives to live) the government becomes freer to do as it wills. In a smaller setting governors would be subject to greater scrutiny. (The accretion of power by default is the negative effect of centralization.)

3. When things do go wrong (from any personal or even general point of view) the people feel ignorant-for they have not paid attention-and individually helpless. So they lie down in the face of (mostly distant) Power. (Whatever meager information the people do have, gleaned via the media, they have learned to distrust. According to a June 2007 Gallup Poll only 22% of the public has confidence in newspaper reporting, while television's reliability rating is at 23%.)

4. When taking action the governors do not understand the true will of the people, often not even what has been reserved in the Constitution, for they too are ignorant of all that must be known. When not forced to pay attention they will avoid doing so and thus they simply act out their own will-believing that they have


no better measure in such a confusing world. At this point the "government" takes on a life of its own and, as Rousseau notes, there arises even an esprit de corps among the representatives that breeds first confidence, and then arrogance.

5. The people are largely politically and particularly economically illiterate and despite the fact that the government has done some terrible thing they feel that their representative has not, for two reasons: (1) he could not do such a thing because he is a demigod and we believe in him; or (2) he said that he did not do such-and-such, or admitted that he did so but only out of necessity as it was the only possible thing that could be done under the circumstances to protect the people. And we believe him then as well, because we have elected him and he is sincere, and we send him back to do more to us because of consideration 1. above.

Circle complete.

If it be thought that such philosophical and real-world conjectures are limited to ancient European and modern American thinkers, consider the intellectual wanderings of Libyan Muammar Gadaffi, a boy and man who has lived in a tent in the desert most of his life, who has limited schooling but a sharp eye and keen sense of humanity and power, and who took over as ruler of his African nation at age 27,

               In Western democracies the electoral system separates those who govern
               from the people they represent. [I]mmediately after winning their votes
               [the governor] himself usurps the [people's] sovereignty and acts instead
               of them. The prevailing traditional democracy endows the member of
               parliament with a sacredness and immunity denied to other individual
               members of the people.

                                       Gadaffi: The Desert Mystic, by George Tremlett, p. 211 (1993)

It is the sacredness and immunity that defines the disconnection between the governors and the people. But both characteristics are merely a convenience for the people, created out of whole cloth, so they have to take neither responsibility nor action.


The Citizen
De Jouvenel's solution? Essentially the same as Alexis de Tocqueville's and Jefferson's and Madison's and most of the rest of the authors presented here: question authority, limit power, deny centralization, remove political opportunity from those elected and confine them to the precepts of the written Constitution-be aware and diligent. We must individually review the five-step process to see where we can involve ourselves. We must not be awed or cowed by those in the place of Power. Our governors are only people, with the same desires and weaknesses and strengths that we possess. If we are their partners, not their subjects, essentially sound government can be achieved. The five-step process can be broken into manageable pieces and sound reasoning and principle can prevail over the intentions of Power.
     But it takes time and attention. If the government "runs" ten percent of our lives then ten percent of our time and effort might collectively be spent to effect a government in which we can believe. These are not impossible requests of a polity that benefits so much from something so simple as the U.S. Constitution. It is important for the electorate not to be daunted by public responsibility or at least civic involvement. These things do not have to be done individually; groups can be joined or formed; communication and action are not so difficult that we cannot express our beliefs to those in power in useful enough form to ensure what we have achieved is what we keep. It takes intentional action-as we have so often witnessed in the works in First Principles.
     Today we can see the results of what de Jouvenel contends is inevitable in modern representative governance. These ends have been reached primarily because of our inaction and inattention. As Edmund Burke noted more than two hundred years ago:

               All that is necessary for the triumph of evil is that good men do nothing.

In America it certainly cannot be said that we do nothing but it can be seen that we do not do enough or that what we do accomplish is often not relevant to the issues at hand. As de Jouvenel notes, the entire population cannot exercise the general will, irrespective of the fact that it still belongs to the citizenry; it must devolve onto someone or some group that then has Power. Once Power is delegated it can be lost, save


in extremis, a rare condition (war, fiscal bankruptcy, political corruption) when the people have the opportunity and obligation to rise to meet whatever challenge faces them. However, when extreme times are extant the governors often find it convenient to assert that they are the only ones competent to act (they will fight the war, they will fix the tax and spend syndrome, they will legislate ethics codes that will reign-in the venal within their own ranks). Thus the myth of the omnipotent governors is born. The observation that the problems we face will usually not be solved by the minds of those who created them is seen, by those in power, as mere ignorance, or stubbornness.  Of course, the ignorance and inadequacy and
subservience of the people become necessary corollaries to the continuation in power of the governors
. De Jouvenel's conclusion

               that popular sovereignty may give birth to a more formidable despotism
               than divine sovereignty

seems almost inescapable. It leads to only one additional conclusion: vigilance is the only protection for, and the prime obligation of, the citizen. Therein lies our liberation-if we only can grasp it.
     De Jouvenel explores an additional concept that developed early in the evolution of democracy and complemented the citizen's need to exercise vigilance. This notion surfaces several times in the history of governance and is just as repeatedly forgotten: democracy's initial purpose was not to establish popular sovereignty-that is, to pro-actively select a ruler or leader-but rather, to delegate to the people's representatives the obligation to resist the power of the sovereign. This was irrespective of whether the sovereign was an individual or an assembly, a president or an emperor.
     Thus de Jouvenel observes that the original parliamentary function was a negative one, best exemplified in the Roman Tribunate, which could only arrest the action of the Senate and the Consuls in the name of the people. It was essential that "the people were defended by those who did not aspire to become masters." We see this negative democratic function philosophically expressed by Thomas Paine in Common Sense (Chapter 2) as American independence was being established. It can be utilized again to reverse the course of Power. Intentional action grounded in common understandings of how our government must function can serve to remove from Power those who no longer deserve our trust or even our confidence. The threat of removal from office, of the loss of an election, focuses everyone's attention on what is


missing from the governing equation. It does this far more effectively than pointing out the philosophical or actual failure of a politician's tenure in office and thereby attempting to change his course solely through the force of intellect.
     De Jouvenel, in observing modern political foundations, explains that the way constitutional government is undermined is not "to deny representation, which the people would defend; it is to absorb representation in[to] government," into Power. This has been particularly prevalent in the Western democracies over the past hundred years or so. The all-important result is that in "achieving" popular sovereignty (with the concomitant right of the governors to rule once the votes are cast) we have eliminated any place to stand in order to resist Power. Modern democrats would contend that the electoral franchise is one such protection and that the Constitution is a second. But a review of American electoral history vis-à-vis U.S. legislative, judicial, and administrative actions denies that such safeguards are effective if the people are not adamant.
     De Jouvenel's point is made more directly as he notes that both the U.S. Supreme Court and the Congress have chipped away at constitutional protections and in a convoluted manner have determined that there are things that must be done to protect society irrespective of the Constitution (a single example: restricting speech in political campaigns-perhaps the most essential freedom needed for the citizen to protect himself. It is not without reason free speech is addressed in the First Amendment.). De Jouvenel contends that, in essence, society has become more important than the citizens who comprise it. This evolution is the antithesis of Lord Acton's
conclusion in Essays in the History of Liberty (Chapter 9) that individual "Liberty is not a means to a higher political end, it is itself the highest political end."

The Courts
Utilizing de Jouvenel's comprehensions to dissect the modern democratic state during the last half century we find that the U.S. court system, in particular the Supreme Court, drifted toward a concept of citizen equality that is supposedly more meaningful and more fundamental than individual rights. It has devolved in this fashion because citizen equality is more emotionally satisfying in the short run (more politically correct)-but more socially devastating in the long run-than individuality or individualism. Power's arrogance has thus metastasized from the legislature to the courts. Since judicial


sovereignty in nearly all countries is not subject in any practical manner to electoral restraint or review (in the U.S. federal judges serve for life), judicial arrogance and judicial activism can become entrenched. However, judicial activism is a two-way street.
     James Madison declaimed as the Constitution's ratification was being debated that it was the obligation of the judiciary to stand as "an impenetrable bulwark against every assumption of power in the legislative or executive." Today courts can too often appropriate to themselves, in their decrees, the function of shadow legislature (such as ordering school busing or coercing taxation or tax distribution for one or another social purpose). As Madison noted, what our court system was designed to do was truncate the reach of overweening legislatures and elected executives and unelected bureaucrats, not find ways to get around the constrictions of government's limits founded in the Constitution. An activist court that does the former is the protection the Founders built into the system of checks and balances; an activist court that does the latter oversteps its bounds and undermines the individual and common protections that were intended to be inviolable.  The difference between making law from the bench—evolutionary or “living” law—and traditional law—making sure law doesn’t get made from the bench--is stark.  The judicial branch’s power is the most difficult to control because there is no direct appeal from its decisions.  This fact is both how and why the judicial system becomes politicized, and everyone is worse off in the long run.
     To Americans it may seem that de Jouvenel's analysis mocks the U.S. Constitution, which divides the powers of government among separately chosen branches. But his intention is not to ridicule the document, it is only to describe its application in the face of Power, in the face of the human condition. There is unquestioned value in the separation of powers and de Jouvenel himself observes that L'Enfant designed the city of Washington, D.C. by locating the White House and the Capitol on opposing hilltops thus signifying the healthy rivalry between our "king" and our "parliament." Yet America, as noted in the court/Constitution conflict described above, has hardly avoided the dangers that exercised de Jouvenel.
     One of the strongest barriers against a monopoly of Power at the center has been almost entirely eliminated over time; that is the competing Power of the fifty individual states to which (along with the people themselves), by means of the Tenth Amendment to the Constitution, all Power not specifically delegated to the national government is reserved. The undermining of the rights of the states, and the people, has been achieved via a judicial activism that ultimately insists on the value and validity of increased centralization. This is achieved by means of the tools available in Article 1, Section 8 of the Constitution-the commerce, general welfare and necessary and proper clauses. The 


courts interpret these phrases with an eye toward uniformity (which is a code word for centralization) and expand government's Power by claiming the right to decide any issue with even the thinnest veneer of national interest.
       The three clauses found in Article I, Section 8, along with the concept of “implied powers” enunciated in the Supreme Court’s decision in McCulloch vs. Maryland (1819) are important legal/political concepts that need to be thoroughly understood in order to comprehend how we arrived at the current state of governance in the U.S.   The following brief definitions/explanations should be a helpful starting place. 
       These clauses were intended to be guidelines for the legislative implementation of the direct grants of federal authority, commonly called enumerated powers, found in the Constitution.  The guidelines were the Founder’s recognition that they could not see the future, thus they offered a further grant of legislative authority to address things that could not be imagined in 1787.  They were attempting to ensure there was enough leeway in the operational “rules” to allow the government and private sector to work in tandem.
       In a very general manner, the three clauses address the following circumstances: 
       The commerce clause allows the federal government to regulate commerce among the states so that states do not arrive at confrontation in their dealings with one another that affords no manner of resolution.  Problems arose when federal authority was legislatively expanded to encompass anything that touched interstate commerce, no matter how tenuous the connection.  This expansion was validated via judicial interpretation and now allows the national government to control virtually all commerce in the country.  This was the beginning of federal one-size-fits-all authority.
       The necessary and proper clause allows for laws that facilitate the federal government’s obligations where specific Constitutional grants of power are concerned.  Congress can pass laws that are necessary to implement those specific powers.
       The general welfare clause allows for laws that affect the general welfare of the nation—not the individuals within it, who were to retain control over their own lives.  The general welfare of the nation is enhanced by construction of roads and bridges, by having a strong military to defend ourselves, etc.  These elements benefit everyone.  However, the general welfare clause is used in the modern era to turn government’s power on its head.  The words “general welfare,” that


formerly referred to a population-wide effect or circumstance, now are claimed to apply to the welfare of individuals generally, which benefits are then claimed to help the nation’s general welfare.  This interpretation, pure circular reasoning, did not exist in 1787 and was not intended.
The fourth element that guides legislation is the doctrine of implied powers, which is not mentioned in the Constitution but is a judicial interpretation that allows Congress to exercise authority that is “necessarily” implied by the specific grants of power in the Constitution.  This concept expanded the authority of Congress to pass laws that were not only necessary and proper in relation to enumerated powers, but that were detailed and specific and expanded the range of topics about which Congress might inquire and then act.  Most of these investigations and laws only tenuously spring from the Constitution’s direct grants of authority but they offer virtually unlimited leeway to Congress to legislate about anything that strikes its fancy, or slakes the thirst of any special interest group. 
       Two of the most vocal, and antagonistic, of the founders took opposite sides in this debate.  Thomas Jefferson argued that the Constitution gave Congress authority only to enact measures necessary to implement the document’s enumerated powers; Alexander Hamilton contended that the clauses empowered Congress to adopt any measure having a natural relationship to the subjects at hand.  Chief Justice John Marshall, in McCulloch, pronounced that implied Congressional powers were mandatory by the nature and the language of the Constitution:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional. 

Thereby the doctrine of implied powers became firmly established as a main source of federal authority.
       With this ruling the quintessential American political game began.  Many books have been written regarding the overall constitutional and specific legislative ramifications of a broad interpretation of the meaning and use of the clauses in Article I, Section 8 and the implied powers doctrine.  Suffice to say that these tools have been used for good and ill, but most often we find they have served as levers to constrain


individual liberty by expanding government authority.  Yet, from the perspective of the twenty-first century, as we investigate what government should and should not do, one must also consider what the United States might look like if at least some of this broad authority was not at hand to deal with unforeseen problems and opportunities.  This was Hamilton ’s point. 
       The corruption of Congressional obligations by special interests that spawn targeted legislation was a natural consequence of the McCulloch decision.  This was Jefferson ’s point.  The deference to Congressional designs the Supreme Court showed in the twentieth century violated the Court’s mandate as enunciated by Madison —to keep the Congress and president from exceeding their authority as laid out in the Constitution.  As history demonstrates, ultimately Hamilton wins the argument—whether by default or design doesn’t matter.  However, in the twenty-first century putting the genie back in the bottle, at least to some degree, is more possible than previously thought.  Widespread knowledge promulgated through the Internet and media, and dire consequences that are impending and obvious from past Congressional misadventures, may combine to reign in government—at all levels.  These possibilities are for the next generations to contemplate, perhaps even enjoy. 

The Division of Power
The idea of refashioning the different American constituencies into something akin to a disciplined parliamentary system (a system with a single legislative body where the opposition cannot block action, they can only call for elections to oust the governors with whom they disagree)-because we need to "get things done"-has been the goal of progressive tradition since the presidency of Woodrow Wilson (1912-1920). But this desire, which obviously can cut in favor of either liberals or conservatives, Democrats or Republicans, has brought forth an opposite desire in the citizenry: the late twentieth-century public preference for divided government-where one party controls the presidency while the other controls one or both houses of Congress and all are thought to be less potent. Unfortunately this idea nicely demonstrates a widespread misunderstanding of the preconditions of freedom in a constitutional republic. The populace may profess a desire for bifurcated Power because they feel less will happen-to them-if those in office have to compromise on myriad goals. The reality is that


citizen freedom and independence from government are as unprotected in this circumstance as they are when Power is concentrated.
     De Jouvenel points out two truths: first, a government of political opposites does not work effectively to limit itself because Power is its own master. The citizen's Power-effected at the ballot box-is only a small part of the equation. The reserve of power found in the hands of administrators and bureaucrats and the judiciary is the more important stumbling block to citizen control of government, thus the failure of theoretically impeccable constitutional measures to work well in practice even when Power is divided becomes apparent.
     Second, de Jouvenel notes that when Power is threatened with stasis or impotence it morphs with one final twist of irony-it acts in concert. This is so for the reason observed earlier: those in Power have as their first goal their retention in office. If either faction cannot impose what they profess is in the public's interest (in their effort to claim the mantle of the people's champion) they act collectively-out of self-interest. Sound legislation and policy often come to the fore in this circumstance (various reforms of Social Security, of the welfare system, and of the tax system have all come about within the confines of divided government) and the confidence of Power waxes ever larger. Those in Power see themselves as having done even more good because they acted in a bipartisan fashion; this evidence that they effected the true general will causes them to think even better of what they've achieved; the greater likelihood of their reelection causes them to smile even more widely. The question always remains: was the citizenry protected or enabled or was it merely mollified?

De Jouvenel's particularly dark view of human social development in the arena of governance is troubling in most of its implications but inherently accurate, thus it is difficult to simply dismiss him as a pessimist. It is easier and more grounded in our experience to accept his views as realistic while we try to protect ourselves from sanctimonious and zealous officials. Social change in de Jouvenel's view, as Power accumulates at higher levels in more concentrated form, is ultimately destined to arrive at the (very politically correct) welfare state that germinated when socialism was thought viable.
     Human beings are afraid of neither laws nor inequality-as long as opportunity is equal; they have proven themselves willing to accept


the real world because so long as opportunity is sacrosanct in all venues (including the opportunity to change, even reverse, government when it becomes oppressive) then the populace feels secure. But the governors who have evolved find the
populace too weak or too selfish or too ignorant for such freedom. In this circumstance the individual is lost and "the people" are found.
     De Jouvenel believes that attempts at equality of condition are doomed to failure in a free society because of the possibilities of the human spirit-because of what people can imagine. The failure first manifests itself socially, then economically. The attempts at equality of condition are equally doomed in an authoritarian society because of the opposite side of that same human spirit-what people will tolerate before they rebel. This does not, however, stop the governors from trying ever harder (even in the face of practicality and reality) to achieve equalitarian success. They dream that if we do just this one additional thing, pass this one additional law, give slightly more power to this one administrative agency, society will obtain a more perfect and impartial equality-thus government grows. De Jouvenel sees but a single beacon to light the path of true freedom-citizen action as the sole antidote to Power. The question for de Jouvenel as for all the rest of us is this: will that understanding find the people at the ballot box or the barricade?
     Freedom-crushing dreamers ultimately believe that the state can do no wrong if it is nothing other than ourselves, in other words, that we are actually represented by those whom we elect to operate government. However, the philosophical goal of such an elected state has become the protection of society, not the individual, by means of a spurious guardianship. In either case, the harm to the individual is no longer a consideration, for individuality has ceased to exist as a governing concept. The state must decide what is correct for the society. This is denoted as a political correctness, arbitrated by those expressing, supposedly, the general will. The circle is again complete.
     U.S. legislators routinely speak of the will of the American people; what the people will or will not tolerate and the specifics of the public largesse to which the public is "entitled." These fabulous assertions allow the real Power of government to be masked in sleight-of-hand and anonymity. The legislator contends: "I did only what the people demanded." But in fact, the legislator made the choice and implemented the action-the general will did not. He did this, as often as not, for his own electoral purposes (note how many pieces of legisla-


tion offer the names of Congressmen and Senators in their titles: the Smith Act to Protect…, the Jones Law for Reform…). The claim that government's acts are an expression of the general will is how legislators and executives justify their Power or their tyranny. These methods have not changed since the time of the Romans. De Jouvenel turns to Rousseau for succor to deal with life's (and government's) real difficulty:

               Putting law over man is a political problem comparable to that of squaring
               the circle in geometry . . . until you have solved it, be sure that instead of
               enthroning laws, as you imagine, you are really enthroning men

                                                                                             [Emphasis by de Jouvenel]

This gloomy perspective takes only modest solace from the electoral franchise, still held by the populace, and still recalled as the weapon of the people. It is sometimes used as it must be, as in the elections of Margaret Thatcher in England in 1979 and Ronald Reagan in America in 1980. But even these forceful personalities, each of whom had and took the opportunity to effect significant change, were unable to materially reduce the mass infusion of government into our daily lives. A smothering effect on the populace is yet in evidence.
     As becomes clear from the construction of his arguments, de Jouvenel recognizes that the foundation of the political claim to power in the modern era is a declaration of an intent to do good. But the intention to do good completely misses the point, for good deeds are solely in the eye and mind of the beholder. Liberty is ultimately the only important goal because from liberty will flow a resolution of the ever-changing ideas of good. For example, is it more worthy to give a man a fish or to teach him to fish? Is it more worthy for government to foster dependency or instill self-sufficiency? One is certainly easier, and equally as certainly more expensive in both economic and human terms. Which represents that elusive "good" for which we are looking? For de Jouvenel, liberty's essence

               lies in our will not being subject to other human wills . . . . [it] is not our
               more or less illusory participation in the absolute sovereignty of the
               social whole over the parts; it is, rather, the direct, immediate, and
               concrete sovereignty of man over himself . . . .


     De Jouvenel holds that the citizen's illusory participation in the application of Power through the electoral franchise has skewed our understanding of the essence of liberty. He wonders how and why this occurred:

               How had the democratization of government become more precious than
               liberty itself?

How was it that the encouragement of government, through idealistic caprice and political egoism, led to more encroachments on liberty than any king ever dreamed of? How have we become so inured to Power that we have twisted the concept of our individual liberty to not being a right, but a grant from Power?
     De Jouvenel finds his answer in the nature of Power itself not just in our own individual failure of action or will. The factors leading to our dilemma are each logical-our desire for individual freedom juxtaposed with an emotional inclination toward social good-but not always rational. Each step of the politician's course seems but the next stage from the last, it is pretty much as simple as that. First principles have simply been forgotten, ignored, devalued, and/or sidestepped by the governors, and human nature has been eliminated as a consideration in governing. At this point politicians, while acting for factions or even in grand ignorance, do not just assume perfect administration in effecting governance, but insist on its certainty. In this manner they claim the individual is protected by the government, which is the opposite of experience. This is not just a copy of the idealism of the Enlightenment and the French Revolution (if a solution to mankind's misery can be thought of all that is necessary is its implementation) but its twin.
     The ever-more centralized modern state causes perhaps the greatest harm. (On the issue of how citizens are turned into subjects by the destruction of community and the centralization of authority, refer again to Alexis de Tocqueville's Democracy in America and Richard Cornuelle's Reclaiming the American Dream [Chapter 30].) The creation of a monolithic therapeutic state lends credence to the idea that government's politicians and bureaucrats will do everything more perfectly for us poor individuals than we can do for ourselves. Our representatives (elected or not), whom we never asked to nurture us, sustain a nanny state through their exercise of the general will. The
therapeutic state has grown from its modest origins, when it sought to


help only those who actually could not help themselves, into a monstrosity that helps all of us because it insists it must. It has the Power that we have bestowed upon it. As de Jouvenel notes,

               [O]nce Power is based on the sovereignty of all, the distrust [of Power]
               comes to seem unreasonable and vigilance pointless; and the limits set
               on authority no longer get defended.

Liberty vs. Security
There is one additional factor behind the evolution of Power-and de Jouvenel observed its universality half a century before America and the world began to directly suffer the effects of global terrorism based on Islamic fanaticism. This human need is for security, which many individuals mistakenly consider to be far more crucial than liberty. Liberty's objectively more pressing imperative becomes intellectually and emotionally elusive where security does not exist. Humanity forgets that liberty must first be established before security is possible. When security is achieved, to whatever greater or lesser extent, then liberty, paradoxically, becomes lost in equal measure because to achieve security one must trade individual autonomy. But even understanding the priority of liberty does not make limiting the governors any easier.
     There probably are no political or even philosophical limits to what government thinks it can offer, or what the populace increasingly thinks it should receive in terms of protection. As James Madison observed when commenting on how much power government needed, logically there can be no limit to the power of government if it is to do its job in attempting to deliver security (illusory as this fruit of statism must be). The government must be given power commensurate with the obligations placed on it. With this logic we can perceive how the people trend toward security and the state toward omnipotence. The result for the citizen becomes obvious-he is turned into a subject.
     De Jouvenel's case against more government "is an argument for not letting necessity, the tyrant's plea, have all its own way" (John Milton, Paradise Lost). Given any thought can we deny the proposition that the burgeoning effect of government is to deny us our humanity by creating a society founded on an illusion of equality and security? Regrettably, those "in Power" do deny this truth because they fail to recognize (or is it accept?) that life is inherently uneven and unequal-wherein lies


its beauty, not its failure. While aiming to give security and equality to everyone by forcibly constraining our individual freedom those suffused with the conceit of Power destroy the very differences, incentives, and impetuses that are the essence of human existence.

About the Author
Bertrand de Jouvenel has been termed "the least famous of the great political thinkers of the twentieth century," but his fame, or lack of it, may be inversely proportional to the value of his insights. He was raised in a prosperous literary family who were intensely political and of ancient French aristocratic lineage on his paternal side. His father was the French ambassador to the League of Nations after World War I and was elected to the French senate; his mother presided over an important salon with a particular interest in France's relations with Czechoslovakia. Born in 1903 in France, de Jouvenel was strongly affected by the rise of Adolf Hitler's National Socialist Party, the Nazis, and the world war that followed as a result thereof.
     Although de Jouvenel graduated from the Sorbonne in law and mathematics his career soon gravitated toward economic and political commentary. His interest in the United States led him to write La Crise du Capitalisme Americain (1933) [The Crisis of American Capitalism], one of the first interpretations of the Great Depression. At the time he favored a strong role for the state in economic matters.
     De Jouvenel worked as a journalist specializing in international affairs for much of the 1930s. He gained worldwide renown for his 1935 interview with Adolf Hitler. After the outbreak of World War II de Jouvenel joined the French resistance but was forced to take refuge in Switzerland. There he prepared his most famous work, Du Pouvoir: Histoire Naturelle de sa Croissance (1945) [On Power: The Natural History of Its Growth], a harsh critique of the modern state's authority. De Jouvenel built upon this historically oriented and profoundly philosophical treatise with several other books over the succeeding decades.
     De Jouvenel taught at the University of Paris and was a frequent visiting professor at British and American universities. He worked tirelessly to acquaint the French elite with Anglo-American economic thought and practices; he was the author of scores of scholarly articles and books on these subjects. De Jouvenel died in 1987.

Available through:
Liberty Fund, Inc.
Suite 300
8335 Allison Pointe Trail
Indianapolis, IN 46250-1687
(800) 955-8335


Back to Top