TGIF: Social Peace through Government Retrenchment

For at least 200 years, classical liberals (aka libertarians) have warned that the more power the government wields, the greater the lengths people will go to get their hands on it before their ideological opponents do.

This is not rocket science, yet resistance to the implications endures. If politicians and bureaucrats can readily confiscate wealth from its producers and distribute it to others, or if they can grant privileges to those they favor and impose restrictions on those they don't, you can bet that individuals and groups will work overtime for access to that power. That's a recipe for civil strife; it leads to what Ayn Rand called an institutionalized civil war.

Imagine what our society would look like if there were no liberty-robbing political power to vie for. People would have to mind their own business and set up the communities they deem suitable. They could engage in persuasion, but they couldn't tap the taxpayer to pay for coercive crusades against others. (I leave aside the heretofore unsolved problem of limiting government strictly to the protection of life and property, as well as the question of whether market-ordered individualist anarchism is the only promising approach.)

All attempts to turn the government into something other than a due-process-bound peacekeeper must incite conflict. The early classical liberals in France identified the state and its power to legally plunder—that is, to tax—as the source of "class conflict." The state (the great fiction by which everyone seeks to live at the expense of everyone else—Bastiat) necessarily divides society into tax producers (the industrious, whether employer, employee, or independent) and tax consumers (who prefer the fruits of plunder to work). Most people do not fall neatly into one or the other category, so the term net applies. Classes—or better, castes—were not a natural outcome of society; they were political constructs, imposed by state force. In the free market, open-border classes will exist, but not castes.

The state does more than take money from A and give it to B. At A's request (or not), the government may impose requirements or prohibitions on B. He usually objects. Such may be done for A's financial gain, but it may also be done in the sincere belief that B and everyone else would be better off morally if they were forced to live this way or that. Sometimes the motives coexist. Examples have included forced abstention from various alleged sins, such as alcohol, drugs, and racial color blindness.

In a virtually unlimited democracy, one can immediately see the danger this poses to social peace. Any meddlesome group that manages to amass a majority of voters has the potential to impose values on the rest. It helps to have a leader with something like charisma. That potential will attract those who have a taste for lording it over others, but it will also attract those whose motive is only defensive: "If I don't have the power, my opponents will." Those are different motives, but the consequences are the same. Someone imposes; others are imposed on. A third motive might be retribution for past wrongs, real or imagined.

The high-stakes quest for power promotes the demonization of adversaries, increasing the social temperature and danger. Every election becomes the most important in our lifetime or even perhaps the last. The Other must be stopped because civilization depends on it. This is a time bomb whose source is the omnipotent state. Someone needs to write a book titled (without apologies to Christopher Hitchens) Government Is Not Great: How Politics Poisons Everything.

Classical liberalism seems to be the only approach that rejects this framework. Or to put it another way, any approach—whatever you call it—that rejects aggressive force qualifies as classical liberal. The only thing that gets "imposed" is the nonaggression obligation. Not to put too fine a point on it, in a fully liberal society, the law (in Hayek's bottom-up sense) is similar to the rules of the road: it doesn't tell you where to go, but only how to get where you want to go. Distinguishing between aggression and defense may occasionally be difficult, but that's why we have courts, which would exist as well under market-ordered anarchism. Violence is costly, peaceful bargaining much less so. (See David Friedman's The Machinery of Freedom, among others, for details.)

Another way to put this is that we should avoid utopianism. The utopian has a vision of the ideal society down to the smallest detail and harbors the temptation not only to impose his vision, but to punish those who see things differently. Utopianism rejects the liberal insight, as the late historian Ralph Raico said many times, that "society runs itself." The welfare-enhancing market order is produced by individuals who peacefully pursue their chosen ends, freely trusting, coordinating, cooperating, and trading with others, often strangers. But for this to happen, the institutions and mores must be right, among them respect for persons, property, and contract. There are no guarantees, but those can be best protected by small government (if not market-based rights protection), small jurisdictions, and the freedom of exit.

Original pro-market liberalism is not so much a set of answers as a moral-legal-political framework in which individuals search for answers by relying on persuasion and consent, never aggressive force. Worthy causes are left to voluntary organizations, such as mutual-aid societies and charities. Social power replaces state power, to use individualist Albert Jay Nock's exhaustive alternatives.

Why would anyone who favors peace accept anything else?

(For more, see my "Disagreement without Conflict.")

TGIF: What Really Protects Liberty?

The COVID-19 pandemic has demonstrated, as if we needed another demonstration, that little stands between the government and our liberty. Champions of individual freedom have been properly disturbed by how much power governments at all levels have seized since the pandemic hit in 2020.

To make matters worse, officeholders and public-health officials object when the judicial branch occasionally overturns their power grabs because judges are said to be unqualified to rule on "medical" matters. So, if judges furnish constitutional and other legal grounds against power grabs, we're supposed to ignore them because they in fact are issuing medical opinions for which they are not qualified. That's pretty inventive reasoning, but unfortunately it is in the service of tyranny and serfdom.

Some judges have made good, that is, power-limiting, decisions during the pandemic, though they might well have gone the other way. (See John Hasnas's "The Myth of the Rule of Law.") It's only a slight exaggeration to say the judicial process is a coin toss.

When judges get it right, the devout constitutionalists among us cheer: "The system works!" But what about all the times the rulings went the other way? Where does that leave the constitutionalists? They will say that the problem isn't with the Constitution; it's with the judges. But considering that the Constitution doesn't interpret itself, who were they expecting to interpret it? Robots that have been correctly programmed? Who would do the programming? Even people within the competing schools of constitutional interpretation don't agree on everything.

Since it's people all the way down and the process is internal, not external to society, don't the constitutionalists have a wee problem?

James Madison called the Bill of Rights, which he wrote, a "parchment barrier." But he couldn't have really meant that because parchment is a poor material for making the heavy-duty, barrier liberty requires due to the predatory nature of politicians. The only real barriers in this regard are the people themselves -- people, that is, who refuse to give, carry out, or obey unjust orders. Paraxodically, orders require consent, and that can be withheld. (Think of the scene in Monty Python's Life of Brian in which Brian tells a prison guard that he doesn't have to follow orders and the guard replies, "I like orders.")

Strictly speaking, constitutions and statutes cannot compel unjust conduct or compliance. They are merely words. When governors ordered "non-essential" businesses and schools to shut down and people to stay home in 2020, those politicians didn't point guns at anyone. People obeyed, but I suspect that only a few did so lest they be punished. If someone had disobeyed, armed agents of the state might have been dispatched, but why did they obey orders? No gun was held to their heads. They might have been fired and others put in their place places, but no one would have been subjected to force.

So all these state agents acted to suppress liberty freely. They followed orders. Why? Because they believed it was proper to do so. Most of the public believed it too. So they were unlikely to interfere.

Why do all these people behave as they do? They do it because of their moral-political values, which they've absorbed since childhood. They believe deep down that the state -- which is just a large gang of people -- is mystically endowed with a moral authority that permits them to do things that the rest of us must never do. In other words, the people, who always outnumber their rulers, subjugate themselves. (See Etienne de la Boetie's classic, The Discourse on Voluntary Servitude.)

This means that the real constitution in any society is not necessarily and usually is not the written one. The real constitution is reflected in most people's day-to-day actions, attitudes, and de facto institutions. It may conform to or conflict with the written constitution. As Roderick Long writes, “what matters is a nation’s ‘constitution’ in the original sense of the actual institutions, practices, and incentive structures that are in place.” (See “Market Anarchism as Constitutionalism.”)

The upshot is that if people's values are not consistently pro-liberty, it won't matter in the long run much what the Constitution "says," and if they are pro-liberty, then it won't matter whether there is a written constitution -- or a state for that matter. In this respect, the debate between libertarians over whether the state is either necessary or proper starts to look rather different. Stateless societies would have constitutions too. As Long puts it:

Anarchy thus represents the extension, not the negation, of constitutionalism. Instead of thinking of anarchy as a situation in which government has been squeezed down to nothingness, it might be more helpful – at least for minarchists – to think of anarchy as a situation in which government has been extended to include everybody. This is what Gustave de Molinari, the founder of market anarchism, meant when he wrote, in 1884: “The future thus belongs neither to the absorption of society by the State, as the communists and collectivists suppose, nor to the suppression of the State, as the [non-market] anarchists and nihilists dream, but to the diffusion of the State within society.”...

Anarchy is the completion, not the negation, of the rule of law. 

But didn't Madison give us liberty-protecting checks and balances? Not really. What he actually bequeathed was a simulacrum of what a fully freedom-based system would provide. While he hyped his Constitution as featuring a separation of powers (and a context in which ambition would neutralize ambition), he overlooked the likelihood that the branches and special interests may discover that collusion against the people is more profitable than competition among themselves.

In contrast, as Long points out,

Far from eschewing checks and balances market anarchists take market competition, with its associated incentives, to instantiate a checks-and-balances system, and to do so far more reliably than could a governmental system…. Separation of powers, like federalism and elective democracy, merely simulates market competition, within a fundamentally monopolistic context.

These insights are valid regardless of the content of a given written constitution, although libertarian and conservative constitutionalists' love affair with the U.S. Constitution is curious. As the Anti-federalists pointed out when the Constitution was first proposed, the taxing power, absent from the Articles of Confederation, is virtually unlimited and the necessary-and-proper clause is downright scary. Then there's that power to regulate trade, the commerce clause! It also was absent from the Articles of Confederation. (Not that I would have been satisfied with that document. But the comparison is illuminating.)

I won't mention the executive branch's royal power over military and foreign policy. Its consequences have been too terrifyingly obvious to need elaboration here.

And let's not forget the Constitution's implied powers. I know, I know: the Constitution has no implied powers. The national government may only exercise powers expressly delegated. Right? Sorry. As Madison himself said during the debate over the proposed Tenth Amendment," it was impossible to confine a government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae." Ouch!

Of course, no article about the Constitution would be complete without quoting Lysander Spooner's irrefutable "The Constitution of No Authority," published in 1870, a time much beloved by constitutionalists:

But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist

What's to stop a return of all the restrictions if COVID-19 rears its ugly head or when the next pandemic comes long? Not the Constitution. Constitutions are security blankets, and like all security blankets, they distract from real danger: the unspoken values people hold that are inimical to liberty. Only education and persuasion can instill pro-liberty values.

(Read more about these matters in my book America's Counter-Revolution: The Constitution Revisited.)

The Arrogance of Power

Question

If people can't be trusted with freedom, how can they be trusted with power?