Unelected Power Is Expanding Beyond Constitutional Checks

Victor Hanson frames the erosion of self-government as authority moving beyond the mechanisms meant to restrain it. His examples range from federal agencies to election rules and international institutions, but his limiting principle is consistent: consequential power should remain bounded by constitutional procedure, divided among institutions, and answerable to a national electorate.

The clearest distinction is between changing a constitutional arrangement and finding an alternative route around it. Hanson does not argue that the Constitution must remain unchanged. Reasonable amendments may be warranted, he says; the Constitution provides a process for them. His objection is to treating that process as optional when it blocks a desired result.

Hanson uses the National Voter Compact as his principal example. As he describes it, participating states would commit their electors to the winner of the national popular vote rather than the candidate who carried their state. He considers that an effort to displace a constitutionally prescribed electoral system without an amendment. He says the compact was 70 electoral votes short of its goal and might need only two more states.

His defense of the Electoral College is not that it is beyond criticism. Its structure, he argues, answered concerns embedded in the constitutional design. The founders believed an election would be harder to manipulate if outcomes had to be altered state by state rather than through one national tally. They also wanted candidates to have reasons to compete beyond the largest cities. Hanson invokes Jefferson’s fear that democracy would suffer if political life became concentrated in urban populations, and argues that the influence of rural states such as Iowa and Utah was intentional.

The same division applies to Congress, in his account. The House represents citizens by their numbers; the Senate represents each state’s distinct political standing and culture. On that account, criticism that California needs far more people per senator than Wyoming mistakes equal state representation for an accidental departure from popular government. It is the federal counterweight to representation by population in the House.

Hanson calls the opposing outlook “evolutionary.” He means a belief that human nature can be indefinitely remade through education, diet, medicine, or enlightenment, making older restraints obsolete. Politically, he argues, that can yield faith that deterrence is unnecessary for peace or that institutions formed in 1789 have little relevance now. His position is narrower than a defense of immobility: change should proceed through the Constitution’s own process.

Victor Hanson’s account of “the unelected” supplies the institutional counterpart to his argument about constitutional workarounds. He puts the federal workforce at three million people and argues that bureaucracies can come to exercise legislative, judicial, and executive functions at once. Permanent officials are sometimes necessary, he says. The danger arises when an agency can make rules, define their reach, and enforce them without sufficient audit, recall, or periodic examination.

The most consequential versions of this problem, for Hanson, arise when officials exercise authority outside the formal limits of their office. He identifies Anthony Fauci as an unelected official who exercised enormous power in 2021 beyond what Hanson regards as the ordinary scope of leading the National Institute of Allergy and Infectious Diseases. He offers Mark Milley as a more explicit case of an official acting on personal judgment about an emergency.

Hanson recounts that Milley believed Donald Trump might use a nuclear weapon, called his Chinese counterpart to say he would speak with him first if he received an order he considered dangerous, and instructed regional commanders that a nuclear order should go through him. The chairman of the Joint Chiefs, Hanson emphasizes, is an adviser rather than part of the chain of command. He does not describe Milley as a bad man. The point is that a precaution can appear logical to an official who sees exceptional danger while still conflicting with the office’s statutory role.

He places the 2020 Hunter Biden laptop episode in the same category. Hanson says that 51 intelligence authorities, three days before the second presidential debate, described the laptop as bearing the earmarks of a Russian information operation. He further says that the FBI had possessed and authenticated it for a year, and that the authorities partnered with Facebook and Twitter to suppress reporting. To Hanson, this was not merely an intelligence assessment but an instance of officials exerting political influence beyond their proper remit.

The agricultural cases matter because they test the argument away from immediate partisan conflict. They show, in Hanson’s telling, how administrative interpretation can turn a statute directed at a defined problem into continuing discretionary power over private conduct.

He describes a federal inland-waterways requirement intended to ensure that waterways met federal standards. A canal or river is what legislators ordinarily meant by the term, he argues. But bureaucrats, in his telling, treated a temporary rain-filled depression on private land as an inland waterway, enabling Environmental Protection Agency inspection, nitrogen measurement, and possible fines. Hanson says this happened to two people he knew.

The New Deal-era Raisin Administrative Committee is his fuller illustration. Created in 1938 to help financially distressed raisin farmers, it restricted the domestic market by directing part of the crop to overseas sale or aid. Hanson’s point is not that farmer support was malicious; he calls it a good intention. Rather, he argues that the arrangement came to mean a grower who dried grapes into raisins could not freely decide how to sell that crop. The federal system directed raisins through authorized packers and determined what share could be sold domestically versus abroad.

He uses an illustrative comparison between a domestic price of $1,600 a ton and an overseas price of $200 a ton. A grower who wanted to sell an entire crop to a bakery or at a farmers’ market could not necessarily do so. Hanson says that if the rules were broken, the government could fine the grower and confiscate the raisins, and that this happened to a neighbor.

Legislators enact a law and leave office, while a permanent bureaucracy becomes expert in its terms and may deploy them for purposes its authors did not anticipate. That can occur under good intentions as well as bad ones. Hanson links this tendency to the concentration of agencies in Washington, arguing that placing administrative power in one location aggregates it and becomes a force multiplier for abuses on either side of politics.

Victor Hanson treats durable conventions as a second layer of restraint. Constitutional text matters, but so do customs that prevent each governing majority from redesigning institutions for immediate advantage.

He points to the nine-member Supreme Court, a number fixed since 1869. Before that settlement, he says, Whig, Republican, and Democratic administrations sought to increase or reduce the Court’s size depending on their relationship to its justices. Keeping the number stable after the Civil War became a restraint on that temptation. The value of the tradition is not that nine is inherently sacred; it is that a settled number makes it harder for a party to convert a temporary electoral victory into control of the judiciary.

He sees the same risk in proposals to admit Puerto Rico and the District of Columbia as states. Hanson says statehood for the District would conflict with the Constitution’s treatment of it and that admitting both jurisdictions would produce four additional senators for the left. This is not simply a dispute over representation in his account; it is an attempt to alter a foundational arrangement for a partisan result.

His discussion of Texas and California extends the concern to redistricting. Hanson describes Texas arguments that Republican districts should more closely reflect Republican vote share, and says Gavin Newsom proposed countering Texas through changes in California. Each side can point to a gap between district outcomes and statewide vote share. But when both treat institutional rules as variables to be adjusted against the other, he argues, the dynamic becomes reciprocal and escalating.

The founders expected conflict among regions, parties, and majorities, Hanson says. Their answer was compromise and moderation, not an expectation that every institution would reproduce a raw popular percentage. Without respect for inherited restraints, he warns, politics can become ochlocracy—rule by the mob.

This is also where Hanson separates what he calls organic pressures from contrived institutional changes. He identifies the diminished middle class, the treatment of superficial appearance or ethnic background as essential identity, and a weakened distinction between living in the country and actively participating as a citizen as organic challenges. They are not, in his view, simply inventions of either the left or right. What is contrived is the response: administrators insulated from review, constitutional arrangements bypassed rather than amended, and institutional rules remade for immediate political ends.

Victor Hanson calls the final challenge “cosmopolitanism”: the belief that the United States should surrender some sovereign authority to international institutions presumed to offer broader wisdom or morality. The premise, as he states it, is that Americans do not have a monopoly on intelligence or moral judgment. His objection is that an institution does not acquire democratic legitimacy merely by being international, especially when it includes governments that are neither consensual nor liberal.

He distinguishes NATO from such universal institutions. NATO is a realistic alliance of nations with common interests, he says, not a utopian enterprise. Hanson cites Lord Ismay’s formulation of its purposes: keeping Russia out, Germany down, and America in. Its deliberately narrow strategic aims are why he treats it differently from institutions that claim wider moral jurisdiction.

The International Criminal Court, United Nations bodies, and the Paris Climate Accord create a different concern for him. Hanson imagines an international tribunal judging whether a U.S. commander who ordered an artillery barrage should have foreseen collateral damage. He invokes Curtis LeMay’s observation that, had the United States lost the war, his firebombing of Japan would have been treated as a war crime. Military conduct can be judged through a cosmopolitan rather than national framework, Hanson argues, by people not accountable to Americans.

He questions the composition and judgment of those bodies. Hanson says Iran was a principal member of an international human-rights commission roughly 12 years earlier despite executing people for offenses including homosexuality. He also says that, until 1990, about half of United Nations condemnation resolutions were directed at Israel. His larger claim is that a body whose authority rests on the equal standing of illiberal and democratic governments is only as strong as its weakest link.

Some countries may benefit from international intervention, Hanson allows. But he describes the United States, despite its faults, as the oldest, most proven, and most stable democracy. That is why he rejects transferring its sovereign decisions to bodies that include states such as North Korea and Iran.