The Old Regime and Arbitrary Rule

President Obama’s claim of executive omnipotence (“I can do whatever I want”) merely brought attention to the constitution under which we have been living: The chief, and those whom he appoints directly and indirectly, are not obliged to any law. Congressmen and senators too, free from votes for which they can be held responsible, can enjoy their rank among brokers of the profit and prestige, of the Trillions, which the modern administrative state dispenses. Obligations exist only among this vast public sector’s functionaries and beneficiaries — the ruling class.

Of greater consequence may be our ruling class’s reaction to that claim. Typically, The Wall Street Journal’s Gerald Seib wrote: “the nation’s deep and abiding political divide makes political consensus elusive on the biggest issues…Congress virtually irrelevant on some matters.” Hence, future presidents will act the same as Obama. We are supposed to accept this way of life as inevitable and sustainable.

But this constitution is unsustainable precisely because any and all rulers who make up rules as they please thereby release the ruled from the obligation to obey. Since the ruling class does not obey laws, why should we obey them?

The principal feature of today’s ruling class is precisely that it reigns in open contempt of the Constitution of 1787 and of their fellow Americans who wave copies of it in forlorn attempts to limit the ruling class’ pretensions. History is univocal: any ruling class self-referential to the point of defaulting on its obligations leaves the ruled no alternative but to turn their backs on it, and eventually to revolt.

Tocqueville's The Old Regime and the Revolution

Tocqueville’s The Old Regime and the Revolution

While our ruling class is too busy to read history, China’s Communist Party — heir to the world’ oldest tyrannical tradition — is assigning its cadres to read Alexis de Tocqueville’s The Old Regime and the Revolution — a not-to-be-forgotten account of how France’s monarchy alienated itself from its subjects and drove them first to turn their backs on the system and, then, to hoist it on pitchforks. Although the details of today’s China, America, or the European Union differ from those of France’s Old Regime, attentive readers of Tocqueville discern the main factors that accredit or discredit ruling classes. Let us see.

In short, human collectivities are neither more nor less than networks of mutual obligations. Subjects feel obliged to follow rules and rulers, largely to the extent that the rulers themselves follow rules. Aristotle’ Politics is the primer. Regardless of whether the rulers are many, few, or one, the great divide between regimes is whether obligation runs in one direction only, or in both. Regardless of the rulers’ number, they forfeit voluntary obedience to their regimes insofar as they pursue their interests regardless of the rules by which people live.

Tocqueville’s history of the Old Regime’s decadence details how it overturned centuries of popular customs, imposed countless administrative burdens on the people, changed them constantly, and enforced them erratically. All the while, the Old Regime maintained a class of haughty beneficiaries bereft of real responsibilities. The regime lost respect, and became an object of fear. In this pervasive, intrusive, oppressive, unpredictable government of men, ordinary people found no shelter in custom or common sense, never mind rules. They were reduced to abasing themselves to the administrators, or to bribing them.

Eighteenth century France’s substantial and increasing economic prosperity was not enough to save the regime. The hate and contempt that it had stored up for itself by disrupting the people’s customs and dividing society between arbitrary rulers and powerless subjects extinguished the regime.

Today’s Chinese tyrants know that their country’s unprecedented prosperity will not suffice to keep them in power. Historically literate, they know that Chinese imperial dynasties, tyrannical though their laws were, lasted by administering those laws in ways that had the color of reason and propriety. But they know also that their own dynasty, built as it is on dividing society on the basis of privileged access to power, cannot do that. So, they worry and look for an out.

Historically innocent, our ruling class neither reads nor worries. Rather, it congratulates itself on having erased the distinction between law and administration, and supposes itself to be the measure of right. Indeed, it is eager to further imitate its European counterparts in reducing constitutions, laws, and elections to theoretical status. Europeans long ago noted that their way of life is marred by what they call a “democratic deficit,” but were sure that they could manage this deficit indefinitely. Recent evidence of massive popular disaffection has begun to shake this assurance. None of this however has yet reached America’s rulers.

The sooner it does, the better. While no one can foretell the consequences of the growing deficit of mutual obligations in American public life, we can be certain that Americans, having been raised on the maxim that “all men are created equal,” are far less tolerant of arbitrary rule than Europeans or Chinese.

Angelo M. Codevilla

Angelo M. Codevilla is professor emeritus of international relations at Boston University and is a Senior Fellow of The Claremont Institute. He served as a U.S. Senate Staff member dealing with oversight of the intelligence services. His new book Peace Among Ourselves and With All Nations was published by Hoover Institution Press.

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  1. says

    This is an excellent and important post, as one expects from Prof. Codevilla.

    It is also rare, because it focuses on the concept of political legitimacy, which is probably the most important concept in political thought, but which goes almost unmentioned in contemporary political debate.

    Prof. Sam Beer defined legitimacy as “the claim of a government to the obedience and loyalty of their citizens/subjects,” as opposed to power resting purely on force, and his legendary course at Harvard on “Western Thought and Institutions” was at root a year-long inquiry into political legitimacy across the ages, and how it is gained and lost.

    Codevilla has written on legitimacy before, as have I [see “America’s Crisis of Political Legitimacy” –]. But the Beltway elite seems unaware that the Left, and the Administration, are destroying the legitimacy of American government and institutions, perhaps deliberately and perhaps simply because they do not value them, and this development far overshadows the day-to-day news of party p0litics.

    The IRS controversy over the new non-profit rules provides a good example of an institution destroying its own claim to obedience, and Micheal Greve recently noted the illegitimate nature of the EPA and the decline of administrative law generally. Obamacare waivers, the horrifyingly approval ratings of Congress, and many other examples could be adduced — but the forfeiture and its potential consequence go unremarked by the political commentators.

    Lenin reputedly said that the Bolsheviks did not seize power; they found it lying in the gutter and picked it up. When the mass of people are no longer willing to defend their institutions because they do not regard them as legitimate, a society becomes very vulnerable to determined minorities.

  2. Angelo Codevilla says

    I thank Mr. DeLong for his kind thoughts, and for calling attention to Professor Beard’s course at Harvard. In that short list of sources of wisdom there is a course titled “Political Obligations” by which Professor Hadley Arkes has benefited students at Amherst College for a half century.

  3. R Richard Schweitzer says

    This is a marvelous extended articulation of Professor Codevilla’s thesis of 2010. One can appreciate his focus here on the essential role of “mutual obligations.” That focus highlights the ever increasing differentiations of the ideologies of that “Ruling Class” (out of which an “elite” minority is selected to govern [steer]) from the ideologies of the vast majority of society which is governed.

    As Professor Codevilla has noted in his previous writings there is another “Class” in our society. Out of that Class a new “elite” may appear to provide the minority to govern. That would more or less conform to the system described by Pareto.

    However, the comparative conditions of the two “Classes” are probably not indicative of “revolution” as the mode for transfers of the authority of governance from the existing “elite” currently derived from the “Ruling Class” identified by Professor Codevilla.

    It may be more likely that what we are observing is the degeneration of the quality of the “elite” drawn from that particular Ruling Class. In this case that “elite” is assumed “the best of the best” (rather than the Greek sense of those qualified to be selected).

    Pareto asserts that the governing minority in societies govern either by guile or force. Those that govern by guile ultimately lose their connection with the governed in their departures from consistent ideologies, which change very slowly but are the principal factors in the motivations of human conduct in all societies. Those that govern by force are ultimately submerged in humanitarian impulses which weaken and limit the forms of force that are used.

    In the current context, despite the strong retention of its ideology, the other “Class” identified by Professor Codevilla does not appear to have produced an “elite” from which a governing minority may be drawn. It does produce, and has produced, minorities capable of controlling administration within the Administrative State; but those minorities have not contained individuals or groups motivated by the quest for authority that results in sufficient political power to govern. Consequently, the prospects for changes in power are likely to occur as a result of the continuing degeneration of the quality of the “elites” of the current Ruling Class. The result is likely to be a change by default in the administration of the Administrative State, but not a change in governance.

    • gabe says


      Good thoughts!
      Are you then saying that we have a”credentialed” elite as opposed to a true elite and that these ” groups(are not) motivated by the quest for authority that results in sufficient political power to govern” simply because they neither know nor seek the true means of political authority which is a recognition of mutual obligations and consent.

      • R Richard Schweitzer says

        No, not at all. Sorry to be obtuse.

        Drawing on, but not quoting, Pareto: Codevilla’s Ruling Class has within it an “elite”(Pareto’s designation) from which a minority is selected to govern. For a period of time that Ruling Class coalesced around particular ideologies which supported the motivations of quests for political power (and the conceit to alter the ideologies of the governed to conform to their own in order to “channel” the objectives of the governed to produce particular patterns of human conduct).

        It is with respect to the other class identified by Professor Codevilla (as I recall, he used the term “Country Class”) that I posit there is not the motivation of the quest for political power that, even though that class may develop, or have, an “elite” of its own, would result in the selection of a minority to govern, rather than administer.

        There is some evidence of occasions of co-option of what might be, or become, some of the “elite” of that other class into the objectives of the Ruling Class principally through the diversionary guiles of humanitarianism (“doing good”).

        • gabe says

          OK, thanks. I suspect that i was the one being obtuse. Your comments bring to mind the thoughts of the Federal Farmer in Letter VII with respect to the Country Class.

          take care

  4. gabe says


    For a solid 18th century critique of the modern disconnected administrative state with all its abuses and “enforcement mechanisms such as IRS, FCC (Fairness Doctrine rejuvenation?), EPA etc etc see Letter VII of the Federal Farmer.
    “In viewing the various governments instituted by mankind, we see their whole force reducible to two principles – the important springs which alone move the machines, and give them their intended influence and control, are force and persuasion: by the former men are compelled, by the latter they are drawn.”

    Or again: ” Government must exist – If the persuasive principle is feeble, force is infallibly the next resort. The moment the laws of congress shall be disregarded they must languish, and the whole system be convulsed – that moment we must have recourse to this next resort, and all freedom vanish.”

    sound about right?

  5. djf says

    “While no one can foretell the consequences of the growing deficit of mutual obligations in American public life, we can be certain that Americans, having been raised on the maxim that ‘all men are created equal,’ are far less tolerant of arbitrary rule than Europeans or Chinese.”

    Sadly, I wouldn’t bet on it, Prof. Codevilla.

    • R Richard Schweitzer says


      That ideology, in its various interpretations has a broad underlying thread in the understanding (and experience) of “Americans.” The members of the “Ruling Class” identified by Professor Codevilla have differentiated themselves from that understanding; and further, attempt to change that ideology and its understanding- the general sense that individuals in our social order have as to the “worth” of the lives of others, as individuals, not just as members of a group.

      Given the evidence to date of the validity of that understanding, I have (1942-1946) and **will** bet on it.

  6. Kevin R. Hardwick says

    Professor Codevilla,

    This is a well crafted and thoughtful essay. I do have some questions, though, especially given the tenor of some of the comments above.

    First, Arthur Schlesinger Jr. first offered his analysis of the “Imperial Presidency” in 1973–he released a revised edition in 2004. Whatever the merits of Schlesinger’s argument, his book and the scholarship that followed it demonstrates pretty conclusively that American intellectuals have been worried about executive over-reach for at least four decades now. So in that sense, our current President is not doing anything radically new–he is simply the latest of a long line of executives from both parties who have for a long time now been unmooring the executive power from the restraints of the original constitution. Partisans of both parties can point to executives from the other party whom they believe to have behaved in illegitimate and constitutionally harmful ways.

    Second, while I concur with you–very much–that legitimacy is both central to our politics today and understudied and under-appreciated by many contemporary public intellectuals, it is not at all clear that either party today offers us a solution. In the period I study–the late 18th century–politics was defined by a strong desire among elites for consensus. As William Nelson argues, this was largely a product of elite weakness–the state lacked coercive power apart from the land owners of the locality. Elites could enforce law only via the posse comitatus or the local militia. Under these conditions, elites arrived at consensus or they did not govern.

    Contrast this with today–the power of the state is exercised through considerable and multiple powers, both police and bureaucratic. Control the state, you don’t need to worry about talking to the other party, let alone compromising with them. The structure of the modern state does not tend towards a politics of consensus–but absent some acknowledgement of the legitimacy of the concerns of those with whom we disagree, where is legitimacy going to come from?

    The analysis above is simplistic–the story is considerably more complex and nuanced. But anyone paying attention surely recognizes that 1.) contemporary politicians are much more worried about telling their base what they believe their base wants to hear than they are with talking to pols from the other party, let along compromising with them; and 2.) hardly anyone in public life wastes much time worrying about the issues that most concerned guys like James Madison–things like “tyranny of the majority.” Indeed, the best minds in both parties worry about protecting themselves when they are in the minority–and it is hard not to notice that our party has done a much better than theirs at playing the gerrymander game. Either party would be plenty happy to impose its will on the losers from the other–and that is true whether they hold 60% of the vote or 40%. Either way, what counts is exercising power–about capturing the state. That is all about preserving power–but it does not do much at all to make the exercise of power legitimate, and in fact it undermines legitimacy.

    Politics is about resolving our differences peaceably–when politics fails, we are much more likely to resort to violence. And only a fool desires that. But look at the comments on this blog–or those of similar nature on the blogs of the other guys. How many people here are prepared to deny entirely any legitimacy whatsoever to the pols who argue for progressivism? And how many of us have encountered precisely the same sentiment from progs, directed at us?

    I don’t see a lot of room for optimism. And I don’t see anyone in the conversation who has clean hands.

    All best wishes,

    • R Richard Schweitzer says


      Like you I would be delighted if Professor Codevilla continues his disquisition into the concerns you have noted.

      While it has been several years since I read his 2010 thesis, I retained an impression that his views of the instrumentalities of the Ruling Class are not limited to the Executive Office in our government, but include the Legislative and its excrescences in the unelected bureaucracies.

      The view may well be that “politicians” have become nothing more than instrumentalities (useful fools?) of the Ruling Class. As an example, members of the Ruling Class might be deemed to include those who currently dominate the policies of our principal academic institutions and our educational systems. That would seem to apply whether we are reassured or discomforted by those policies and the qualities of those who determine them.

      As you state, in slightly different words, those who would govern must govern by persuasion or coercion. That coercion is not always by physical force. In its most current expressions much coercion has been economic through taxation and bribery (“They’re bribin’ ya with your own money- Ross Perot). If it will help relieve your pessimism, the Ruling Class is about to lose much of that form of coercion.

      There will be continuing attempts to aggregate interests as a means of retaining influence if not power, but the sense of “authority” is being diminished by the degeneration in the quality of the political instrumentalities available to the Ruling Class (due in part to the degeneration of the quality of the members of that class). Examples abound in academia which attempts to supply sustenance for legislative and bureaucratic authority.

      Be of good cheer.

    • R Richard Schweitzer says


      As an afterthought: To govern through persuasion requires doing so through the understanding of the predominant ideologies, rather than attempts to modify or replace ideologies or the understandings of them; because, most of human conduct is directed by motivations shaped largely by ideologies.

      • Kevin R. Hardwick says


        I strongly agree with this comment–this is spot on. Ideologies change slowly and incrementally. Ideas matter. But as a practical matter, pols (and the rest of us too) have to make our peace with the world as it is, the world we live in, rather than the world as we would like it to be.

        We can of course seize power, and then impose our will by bureaucratic and coercive means on those people who disagree with us. I would submit that gerrymadering districts is a mild form precisely of this. But to the extent that we do this, we cease to live in a liberal and free society. This is one reason why I am critical of so many of the folks on our side of the aisle, and deeply suspicious of the many in the blogosphere–people with whom in many ways I am inclined to agree–who seem to think we do not have to accommodate the views of the other side.

        • R Richard Schweitzer says


          As I indicated in my original post on this thread, the potentials for revolution and seizure of power are not evidenced by sufficient motivations for authority to govern amongst any of the “elite” of the Other Class (any substantial minority out of the “governed”). There are those capable, and desirous, of administering the Administrative State. But it will have to be done through the existing mechanisms of our governments which have been perverted over the past century. That is probably the most we can expect in the world as it is, as the Ruling Class, it’s “elite” from which the governing minority is drawn, all “run out of gas.”

          Unfortunately, many of the “views” of the ruling class and its elite are centered on the pragmatism of particular coercions and deceptions for persuasions; a large measure of which can not be “accommodated” if our social order, and the individuals within it, are to remain free.

    • gabe says

      1) “he is simply the latest of a long line of executives from both parties who have for a long time now been unmooring the executive power from the restraints of the original constitution. ”

      But a case can be made that the extent to which this “unmooring’ is being continued (enhanced,perhaps?) equates to a qualitative difference in both intent and impact.

      2) “Either party would be plenty happy to impose its will on the losers from the other–and that is true whether they hold 60% of the vote or 40%.”
      Seemingly true – however, I am reminded of the behavior of the GOP when they attained Congressional majorities and no where can I find any instance of such brazen disregard for the “opinions” of the opposition as the Obamacare “passage.”
      Additionally, I forget the year but the Repubs actually arranged “power sharing’ in congressional committees for a Congressional session.
      This is not to deny the validity of your other critique(s) of both parties – only to again point out that there may be some saving grace in the lesser degree to which GOP is prepared to go to push their agenda. Of course, it may have more to do with their “distance” from their base and fear that the media will abuse them – nevertheless, tactically they are somewhat more restrained than the proggies.
      3) “Politics is about resolving our differences peaceably–when politics fails, we are much more likely to resort to violence. And only a fool desires that.”
      Absolutely – however, it is also possible that the violence will come from the state (the point of the Melancton Smith quote above) and that this violence may not be simply “armed Violence” but an extensive system of coercion via the administrative state and the DOJ. Thus, one must then ask, which party is more apt to employ the coercive mechanisms of the state to accomplish its ends and also what are the extent of those party “ends”?
      Perhaps then modern virtue REQUIRES that our hands while not dirty at least be stained.

      take care

      • Kevin R. Hardwick says


        I don’t disagree with you. But you are missing my point. I work in a university–I know lots and lots of folks who do not share my principles. And I can assure you that they are fully capable of making strong arguments for the positions I describe in my initial post–every bit as heartfelt as the arguments you make above. The point is not the relative merits of the arguments, but the fact that reasonable, intelligent, honorable, well-intentioned and public-spirited people make them, and make them with conviction.

        There are substantial perceptions of grievance prevalent across the political spectrum in our country, and similarly strong perceptions that the people on the other side of the argument are people of poor character or weak intelligence, advancing illegitimate arguments.

        Whatever the actual truth may be, this is a situation that is fraught with potential for violence. It foreshadows, it least so it seems to me, circumstances conducive to the failure of politics. And when politics fails, people die violent deaths.

        • gabe says

          OK fair enough.
          I can disagree with neither your premises nor your conclusions.
          I simply wished to point out that there is some difference between the parties and supporters that is significant and that one should not lose sight of those differences because a) they arrest to the ideological differences between the two and b) at times, it may be necessary to fasten on to this difference as opposed to become politically “depressed” when confronted with the sad state of our politics. Perhaps, it may keep some from giving up the good fight.

          take care

          • Kevin R. Hardwick says


            In reviewing my series of posts here, I find myself making a distressingly Hobbesian argument. Eye-opening–not the destination for which I set out when I began writing!


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