Because I am not sure I have been clear enough, I think it might be worthwhile restating a point I have been trying to make, and this is simply that the left is power, but it is only a very specific manifestation of power.
The elite in society always rise to the top, this is so obvious as to be tautological. That’s what the elite do. The elite will rise to governance, and in governance they will seek to do what they logically must in their given positions. So in our current system which is very much law led, as Tocqueville noted so well in Democracy in America, the elite will manipulate the system to do as they must to overcome barriers placed in their way. So while Tocqueville notes the following:
The third characteristic of the judicial power is its inability to act unless it is appealed to, or until it has taken cognizance of an affair. This characteristic is less general than the other two; but, notwithstanding the exceptions, I think it may be regarded as essential. The judicial power is by its nature devoid of action; it must be put in motion in order to produce a result. When it is called upon to repress a crime, it punishes the criminal; when a wrong is to be redressed, it is ready to redress it; when an act requires interpretation, it is prepared to interpret it; but it does not pursue criminals, hunt out wrongs, or examine into evidence of its own accord. A judicial functionary who should open proceedings, and usurp the censorship of the laws, would in some measure do violence to the passive nature of his authority.
We can add that this is an assessment which has proven flawed, given that legal activism and the creation of cases to overcome this passive power limitation is what subsequently occurred. All roads end in legal cases in democracy as Tocqueville notes, so the elite engaged the legal system…in the name of the people, as always.
In fact, the central prevalence of law is a neglected aspect of analysis of democracy as Tocqueville notes:
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, they are sure to occupy the highest stations, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes to combine with the aristocracy and to support the Crown, they are naturally brought into contact with the people by their interests. They like the government of democracy, without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority, from it and over it. The people in democratic states does not mistrust the members of the legal profession, because it is well known that they are interested in serving the popular cause; and it listens to them without irritation, because it does not attribute to them any sinister designs. The object of lawyers is not, indeed, to overthrow the institutions of democracy, but they constantly endeavor to give it an impulse which diverts it from its real tendency, by means which are foreign to its nature. Lawyers belong to the people by birth and interest, to the aristocracy by habit and by taste, and they may be looked upon as the natural bond and connecting link of the two great classes of society.
In visiting the Americans and in studying their laws we perceive that the authority they have entrusted to members of the legal profession, and the influence which these individuals exercise in the Government, is the most powerful existing security against the excesses of democracy.
Democracy in effect becomes rule by lawyers, and this is not really a secret among the law profession, as a cursory search of legal essays can explain, as for example here:
Legal experts routinely acknowledge the need to protect the rights of the minority against the will of popular majorities, rendering judicial independence the most essential characteristic of a free society. As Judge Shirley Abramson stated, “Judicial independence is a means to an end-the end is due process, a fair trial according to law. Judicial independence thus protects the litigants in court and all the people of the nation.
Judges and scholars have also emphasized the importance of academic freedom. Justice Felix Frankfurter declared that it was the “special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens. ‘ Justice William Brennan echoed the importance of academic freedom:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. A report on Policy for Government by the People for the 21st Century reminds us that democracy is not immutable-without due diligence, antidemocratic forces tend to creep forward, making small but significant adjustments in key structural components of democratic institutions. As a result, efficacy and normative functional values are quickly undermined by duplicity and neglect.
In effect, this “independence” means legal rule by an “impartial” process, and as Moldbug made a point of noting, the USA’s ultimate sovereign is the Supreme Court, which is a legal institution and that:
In the fallacy of “rule by law,” and the fallacy of “rule by science,” we see a common thread: the fallacy of “rule by formula,” in which it is pretended that a government can be conducted by some mechanical process, in which the human character of the governors is irrelevant.