In any political history, there will surely be a lengthy chapter on legislative transitivity, the secret passageway through which the Divine Right of Kings has been restored to the executive in erstwhile democracies.
In mankind’s long struggle for self-government, the liberty movement has had to contend against the Divine Right of Kings (DRK), the doctrine that all political power is vested in the king, manifested especially in the assertion that the law is the king's will. The continental monarchs and those of England (up to the English revolutions of 1649 and 1660) universally held that infamous doctrine of political philosophy.
In adherence to the DRK doctrine, Richard II of England intoned, “The laws are in my mouth,” which stance lost Richard II his throne and Charles I his head. (Of that beheading, H.G. Wells wrote in his Outline of History that it “sent horror through every Court in Europe... It was as if a committee of jungle deer had taken and killed a tiger—a crime against nature.”)
The American experiment in ordered liberty asserts that the citizen possesses the rights of life, liberty, and property as gifts of God, thereby completely rejecting the DRK as a key element of the concept of American Exceptionalism.
Image by AI.
How relieved are we Americans that thanks to our own revolution, we no longer live under the DRK doctrine? In this country, in this enlightened day and age, the laws are not in the mouths of the president or the state governors. They cannot make law just by speaking it.
Or can they? It seems that permanently removing all ramifications of the DRK from even the various American governments is as impossible as permanently ridding your lawn of moles. That’s because the federal administrative state and the administrative state in each of the 50 states have bestowed upon the president and the governor a virtual DRK status.
It is sometimes said that the regulations the administrative state promulgates do not have the force of law but, instead, are “guidelines,” “suggestions,” or “advice to Congress or the state legislature.” But no, not so, for the regulations, whether state or federal, are laws that create civil obligations or criminal penalties, complete with fines and imprisonment for noncompliance.
It was, in fact, New York state’s administrative state regulations that dispatched the jackbooted thugs that slaughtered Peanut and Fred.
Now, it is true that these administrative regulations are inferior to statutes and that state and federal statutes set out procedural hoops through which the administrative agencies must jump to create a regulation. But to set aside a regulation for noncompliance with statute requires a court order and thousands of dollars in attorneys’ fees. Hence, practically speaking, the regulations’ compulsive power is unlimited.
But just what, you may well ask, is the connection between the administrative regulations and the DRK?
The connection lies implicit in the fact that an agency head’s order promulgates an administrative regulation. Typically, the agency head is a single individual—the department director. If the agency head is a commission, then the promulgating order is the majority vote of the commission.
And how does a person become a department director or a member of a department head commission? Here is the DRK link in the system. A president or governor appoints the person to that office.
So, now we can see the operation of legislative transitivity. The administrative regulations are in the mouth of the department director or commission, and the fortune of the department director or commission is in the mouth of the governor or president. Hence, the regulations are transmitted from the mouth of the governor or president to the pages of the state or federal administrative code through the transitivity of that relationship.
The effect is that the monstrous DRK has returned to torture us, take our land, destroy our livelihoods, and slaughter our pets. Who will rid us of the coiling tentacles of this monster?