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Jonathan Emord – Liberty Has Given Away To Tyranny



By Attorney Jonathan Emord

October 6, 2009

Because Our Constitutional Republic Has Given Way to a Bureaucratic Oligarchy

When Obama promised change, many anticipated fundamental reformation of government.

What they got, however, is no fundamental reformation but rather more (much more) of the
same old government. The history of the United States from 1938 to the present, whether the
people in power were Republicans or Democrats, is one of a transfer of governing power from
the separate executive, legislative, and judicial repositories defined in the Constitution to the
unelected heads of the federal bureaucracy, growing that bureaucracy into a monolithic giant.
That dynamic continues at an accelerated pace in the Obama administration. Today over 90%
of all new federal law is the product not of Congress, not of our elected representatives, but of
unelected heads of federal agencies who are largely unaccountable to the courts, the Congress,
and the American people. Year after year from 1938 to the present, the fundamental direction
of the government has been toward greater oligarchic control by an ever mushrooming
bureaucracy such that today we may truly say we are governed not by the republic the
founding fathers created but by a bureaucratic oligarchy that the founding fathers condemned
as the very definition of tyranny.

Throughout history tyranny has assumed many forms (monarchy, dictatorship, autocracy,
and oligarchy) but all share in common a unity of legislative, executive, and judicial power in
the hands of one or a few. Liberty, an historical rarity, has existed only when legislative,
executive, and judicial powers have been limited and kept in separate and competing hands
with the rights of the individual being sovereign. Tyranny may be defined as the unbridled
exercise of will by one over the life, liberty, or property of another without the other’s consent.
Rightful liberty, as Thomas Jefferson brilliantly explained, “is unobstructed action according
to our will within limits drawn around us by the equal rights of others” (but not “’within the
limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the
right of an individual”). Our great nation, once a bastion of liberty, has fallen pray to tyranny
precisely as the founding fathers predicted, through the rise of unbridled discretion in the
hands of the few, the federal bureaucracy. Liberties once protected have been taken from us,
usually by a form of bribery where we are promised a public good in exchange for an effective
relinquishment of a liberty right, but, as Sam Adams eloquently stated, “the right to freedom
being the gift of Almighty God, it is not in the power of man to alienate this gift and
voluntarily become a slave.”

The genius of the American republic was its adoption of separate and competing legislative,
executive, and judicial powers. The founding fathers were united in their admiration for the
French Enlightenment philosopher Montesquieu who, in his “Spirit of the Laws,”
understood the unity of any two of those powers in single hands to be the death of liberty and

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Jonathan Emord – Liberty Has Given Away To Tyranny

the birth of tyranny. John Adams captured the essence of that threat when he wrote in his
“Thoughts on Government,” “a single Assembly, possessed of all the powers of
government, would make arbitrary laws for their own interest, execute all laws arbitrarily for
their own interest, and adjudge all controversies in their own favour.”

Through the founders remarkably unselfish adoption of a constitutional republic, they gave
the world a unique and invaluable means to defend liberty: a government instituted among
men to protect the rights of the governed rather than the rights of those who govern. With
rhetorical flourish Jefferson vanquished tyranny in favor of liberty in the Declaration of
Independence. The Constitution transformed the Declaration’s ideal into a workable
government that again made individual liberty paramount by denying any single individual or
department combined legislative, executive, or judicial powers. Had America remained true
to that constitution of liberty, we would have remained sovereign and our freedoms secure. A
true republic is the greatest bane to tyranny and the best defense of liberty. Liberty can be
crushed by brutes who dominate others through force of will (the by-products of anarchy) or
by a governing elite who deprive the rights of the majority for the benefit of a minority
through the exercise combined legislative, executive, and judicial powers in their own self-
interest (the by-products of monarchy and oligarchy). But when our constitutional republic
functions, it protects liberty by denying government power, particularly the power to
transgress the rights of man.

Our constitutional republic has been replaced by a bureaucratic oligarchy. Our rights once
secured by the rule of law have been violated by the arbitrary rule of men. Liberty has given
way to tyranny. The founding generation predicted that the limits imposed by the
Constitution on governors were valuable only if respected by those in positions of power and
defended by the public against usurpation of power. Unfortunately, since 1938 the
government, by incremental encroachments, has abandoned the Constitution, largely because
accountability and responsibility for action by members of Congress involves risks to
reelection. Better to delegate away the power to decide difficult questions to independent
commissions than to decide those questions themselves because the bane of reelection
security is the engendering of political opposition by making decisions on controversial
issues. James Madison warned that “a mere demarcation on parchment of the constitutional
limits of the several departments is not a sufficient guard against those encroachments which
lead to a tyrannical concentration of all the powers of government in the same hands.” Those
who have voted for a transfer of governing power from Congress and the Courts to the
bureaucracy have not heeded Madison’s warning.

Since 1938 the Congress of the United States has delegated its governing power to over 183
independent regulatory commissions. Those commissions possess combined legislative,
executive, and judicial powers. Those commissions govern the intimate details of commerce
in every field of endeavor. Invariably those commissions become the servants of the most
powerful interests they regulate. So it is that the pharmaceutical industry controls the FDA
such that FDA approves unsafe drugs over the objection of its medical reviewers. So it is that
the major broadcasting and cable networks control the FCC such that the FCC enforces rules
that give incumbents protection from competition. So it is that the DEA is also controlled by
major pharmaceutical interests, so that the DEA Deputy Administrator drives out of existence
all independent suppliers of ephedrine and pseudoephedrine cough and cold remedies, while
protecting from legal action suppliers of the major pharmaceutical brands.

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Jonathan Emord – Liberty Has Given Away To Tyranny

Our nation, once ruled by those who consciously neglected self-interest to fight to secure
liberty is now ruled by those who sell liberty to achieve personal gain. The solution lies in
simple measures that have profound consequences. I have written a bill for Congressman Ron
Paul called the Congressional Responsibility and Accountability Act (see for more
information). That bill, HR 3396, prevents any regulation adopted by an agency from going
into effect unless the elected representatives of the people vote the regulation into law in the
typical manner in which bills are passed. That one measure would restore the separation of
powers by making Congress responsible for all laws as the Constitution requires. Please go to
my web site at and use the links to send a message to your member of Congress
demanding that he or she become a co-sponsor of HR 3396.

The future of individual liberty in America depends on whether we can restore the system of
checks and balances on federal power that is the true guardian of liberty. Until our
Constitution of Liberty is restored, we can anticipate more acts of tyranny, less freedom, and
more government intrusion into our daily affairs. Decisions rightfully our own will be made
for us by those in government who presume to know better what is in our best interest than
we do. In the end, if we do not rise to the occasion and vote out of office the enemies of liberty
and insist on true reform, true change, back to a nation of constitutional law rather than a
nation of the arbitrary will of the bureaucrat, we will be rendered indistinguishable from
those nations of the world where talent has little reward and where the freest people are those
in government who rule others.

How much is your liberty worth? Can you sit idly by as year after year your freedoms are
taken from you, or will you choose to invest time and energy in restoring constitutional
governance to America? That son of liberty who helped drive the American revolution against
the tyranny of George III, Sam Adams, answered with these immortal words:

The liberties of our country, the freedom of our civil Constitution, are worth defending at all
hazards, and it is our duty to defend them against all attacks. We have received them as a fair
inheritance from our worthy ancestors: they purchased them for us with toil and danger and
expense of treasure and blood, and transmitted them to us with care and diligence. It will
bring an everlasting mark of infamy on the present generation, enlightened as it is, if we
should suffer them to be wrested from us by violence without a struggle, or to be cheated out
of them by the artifices of false and designing men.

Jonathan W. Emord is an attorney who practices constitutional and administrative law

before the federal courts and agencies. Congressman Ron Paul calls Jonathan “a hero of the
health freedom revolution.” He has defeated the FDA in federal court a remarkable six
times, four times on First Amendment grounds. He is the author of “The Rise of

E-Mail: Not Available

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