DOGE: Between Justice and Legitimacy

Despite all the handwringing and hyperventilation about the unorthodox DOGE, we have to dig deep and figure out our principles and priors in a dying constitutional order.

What Musk's DOGE has exposed is just how shockingly ignorant many smart libertarian theoreticians and economists are of basic civics. They are teaching advanced courses in premier universities in various subjects but would fail Civics 101. Worse, they don't even care that they are ignorant. —Shikha Sood Dalmia

When Edward Snowden leaked that the national security state apparatus was mass-spying on American citizens, people of conscience had to choose between justice and legitimacy when assessing his actions. As we’ll see, that choice was not binary, though I admit my title has an uncomfortable binariness.

Snowden’s leak might have been of questionable legitimacy—and this point is arguable—but it was not dubious in justice. Indeed, the NSA was acting both unjustly and illegitimately against us all. Snowden abused his security clearance to let us know Americans were being spied on.

Is the rule-of-law crowd going to tell us that Snowden should have used proper whistleblower channels if that risked leaving us all in the dark about unconstitutional domestic spying? Would the fine minds at

The UnPopulist

or

Econoclast

have Snowden thrown in federal prison?

Yes, Another Matrix

Let’s apply one of my familiar analytical matrices.

x - On one axis, we have legitimacy at one extreme and questionable legitimacy at the other.

y - On the other axis, we have justice at one extreme and dubious justice at the other.

In defining our terms, I use legitimacy to mean legality, including questions of constitutionality. I use justice more or less as a moral conception while acknowledging that your idea of the right and the good might differ from mine.

Now, let’s look at the matrix.

Now that you have grokked it, let’s apply its rationale to the DOGE’s unorthodox transparency measures.

Exitus Acta Probat Redux

Readers of this publication know I have grave concerns about people who stand on exitus acta probat, a principle that means the ends justify the means. So, if what I argue risks putting me in Camp Hypocrisy, that’s a chance I have to take.

Generally speaking, when I attack those for whom the ends justify the means, I put them in the upper-right quadrant—that is, the action was probably unjust and illegal. I risk contradiction because I have never specified that any matrix like this operates in the background of my thinking.

Now, back to DOGE.

Very smart, very fine people (on both sides) will risk coming across as hypocrites if they are not clear-minded and clear-spoken in their pursuit of justice and legitimacy. Indeed, it’s hard to be clear-minded when the questions of law and morality are almost never so clear. Whether we’re talking about hate-the-state types who use the NAP (non-aggression principle) as a rhetorical bludgeon in every conversation or effete beltway libertarian apostates who hate populism Trump, it’s nigh impossible to be rigorously consistent when values like justice and legitimacy conflict.

And they almost always do.

The Jeffersonian Fire

DOGE’s activities strike me as walking a blurry line between the lower-left and lower-right quadrants—between legitimacy and questionable legitimacy. Let’s stipulate that DOGE walks right on that line.

“Unelected”? Meh. No federal employer or contractor is elected, and Musk reports to the President and Treasury Secretary Bessent.

“Conflict of interest?” Jesus, be a fence. Washington’s revolving door is settled law, and FDA bureaucrats make vast sums off the very vaccines they passed under EUAs and mandated millions to inject. Please don’t lecture us about conflicts of interest when bureaucrats made money off an offer people couldn’t refuse. If the taxpayers put $25 billion toward a $75 billion Mars mission, how much will Musk have saved compared to if NASA had done it?

For an old asymptotic anarchist who seldom gets to see proportionally more justice and legitimacy in this world—especially as measured against oceans of dubious justice and questionable legitimacy, not to mention harmful fiscal profligacy—DOGE is close enough for horseshoes.

Here are several reasons why:

• DOGE has already revealed unprecedented programs, expenditures, and people of dubious justice and questionable legitimacy, including billions to vast networks of spooks fomenting color revolutions and transgender dance parties in Whateverstan, as well as illegal FEMA fund diversions to Hotel Tren de Aragua while Western North Carolinians continue to languish in tents.

• DOGE promises to help us avert an impending financial collapse by recommended cost-cutting to reduce the $38 trillion federal debt (130 percent of GDP), ballooning debt service, and unfunded liabilities.

• DOGE offers hope that more permanent transparency reform is possible, though I worry that’s a vain hope.

• DOGE’s walking the legitimacy tightrope in an unorthodox approach means the group is ladling out heaping helpings of justice for an electorate that has had its rights shat upon and overlooked consistently since 1913.

• DOGE has provided oversight that the agencies have (unconstitutionally) denied Congress in matters like illegal gain-of-function research coverups, funding disbursements for criminal illegal migrant hotels, funding for lawfare and media hit jobs against a sitting president, and matters to do with the censorship industrial complex.

• DOGE’s absence would almost certainly have allowed the teleworking denizens of Greater Washington to continue unabated in their quest to censor, manipulate, and threaten Americans using our own money.

Remember, our Fourth Branch of government is untransparent, unaccountable, and operates with impunity. It is an imperial cancer. So lamentations and partisan talking points don’t inspire me to give a flying fuck about technicalities.

¡afuera! —Javier Milei

Does all this cause me to “fail Civics 101”?

I cannot say. Those who launch such accusations are woefully silent on civics questions that work against their preferred narratives. Their standards of what constitutes legitimacy betray a grotesque selectivity. They expect you rigorously to hue to principles while your enemies have been warming their hands against a burning Constitution and guzzling from the Solo cups of injustice for decades.

We can all fall victim to a political team sports mentality. But we cannot fall victim to narratives that mean the people must continue to engage in radically asymmetric warfare with the Deep State and activist judges.

Despite Burke’s wisdom, there is a point beyond which we must become more anarchist and less constitutionalist as the constitutional order is coming apart.

In other words, if the totality of law has devolved so much that it becomes an impediment to you and me—but not the enemies of justice, law, and the people—we have to think seriously about being on the side of justice to contemplate a constitutional reboot—that is a good old-fashioned Second Declaration.

I do not consent! we shout.

Such a revolutionary fire makes the Declaration, not the Constitution, America’s charter document—despite apparent tradeoffs against our anemic rule of law.

One should be committed to the rule of law in the abstract and work tirelessly to restore it. But I see little wisdom in sanctimoniously defending a “Living Constitution” full of holes and loopholes that attract the predators and parasites of Our Democracy the Fourth Branch. Procedural technicalities are the state’s best friend, allowing our enemies to operate with impunity forever.

Despite all the handwringing and hyperventilation, we’ve got a legal loophole of our own.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…

How about that for basic civics?