Constraining Leviathan

There’s an excellent article up at Cato Unbound by Anthony De Jasay. The theme, “Is Limited Government Possible?” touches on the inherent problems of attempting to limit the growth of government when every incentive exists for government to grow. De Jasay is European and his analysis seems to reflect a greater familiarity with parliamentary democracy than with presidential democracy (more on that in a bit), but his central point is perfectly sound.

Essentially, De Jasay argues that the structural limits we would like to enforce upon government are no more than speed limits. Constitutional and other structural limitations rely upon the government for their enforcement and are therefore undermined by their ultimate lack of enforcement. De Jasay likens these limits to a lady’s chastity belt. If the lady has the key, then the belt only delays the inevitable.

He says,

…self-imposed rules attempting to limit the scope of collective choices, such as constitutions, are not strong and though they may be observed if they are innocuous and only forbid government to do what it is not strongly interested in doing, they could hardly be expected to restrain government from doing what it is anxious to do or must do to preserve its tenure of power. The general absence from constitutions of restrictions of taxation lends some verisimilitude to this conclusion, though it would still have to be regarded as tentative.

The US Constitution, for example, prohibited an income tax, until it didn’t. It restrained federal spending and federal intrusion into matters unrelated to interstate commerce, until it didn’t. And famously, the Constitution was silent on the sale of alcohol, until it banned it, until it didn’t.

So what does limit the growth of government? De Jasay argues that there are only a few things: The susceptibility of the electorate to panic (The idea that things sometimes get so bad that everybody gets scared and votes for Thatcher or Reagan); Widely held beliefs (Here Jasay offers the universal, pre-Keynsian belief in the evil of deficits); and Campaign financing.

In the United States, it is still largely individuals and not parties that get elected. Party discipline is loose compared to Europe and candidates raise their campaign expenditure to a large extent by personal effort for their personal purposes. To the extent that campaign donations are sought from higher income donors, a candidate’s program must be more “conservative” and less redistributive than if donations came from all income groups in proportion to their income. If elected, a legislator has both a debt of honor to pay to his high-income donors and must establish a record that will help him gather donations on future occasions if there are any such.

Jasay argues that publicly financed campaigns result in more redistributive polices than privately financed campaigns because publicly financed campaigns tend to decrease the responsibility that a political coalition bears for its policies. It’s an interesting position, and certainly points up the problems inherent in publicly financed campaigns (unless of course, we imagine politics should be devoid of responsibility).

Is there nothing we can do to limit the growth of Leviathan? What about checks and balances? The “separation of powers?” De Jasay is not enthused,

One of the dangerously misleading phrases in this context that has penetrated political thought is the “separation of powers.” It is dangerous because it tacitly suggests that such separation can resolve the paradoxical feature of every constitution which the king enforces against himself (or a government against the mandate of its own majority). Montesquieu uses words that do not illuminate the distinction between separate functions of a government and separate repositories of power under separate control that may act independently of one another or even against each other. The latter kind of separation of what ultimately boils down to armed formations and firepower is difficult to conceive of within a single government. It is fairly obvious that Montesquieu did not mean it, and if we mean it when we use the phrase, it is that we do not really think of what the words could mean. The result is a blind belief that the separation of functions among legislature, executive, and judiciary contains within itself a solution to the constitutional paradox of real, though perhaps not logico-legal, self-reference.

This all seems a little bleak. I’m reminded of a particularly depressing conversation I once had with Robert Higgs (author of Crisis and Leviathan) in which Dr. Higgs despaired of the chances for real reform. Unfortunately, I think both Higgs’s and De Jasay’s arguments are compelling. But I’m an optimist, so I’ll keep plowing on, doing what little I can to try and increase the prospects for liberty.

I also think that De Jasay’s continental focus colors his arguments. In a parliamentary democracy, a government is literally “built” with a coalition of different parties, and aside from the entrenched bureaucracy, the ruling coalition oversees all aspects of the government (legislative and executive with the power of judicial appointment or oversight). The coalition is in complete power and is answerable only to its members and constituents. It is only limited by the degree to which it must appease competing interests within its own coalition.

In a presidential system, however, it is possible that different coalitions may control different parts of the government at the same time. (Just as Republicans control the executive branch while Democrats control the legislature.) In practice this can lead to a substantial reduction in the growth of government. Not actual reduction, mind you, just a reduction in the rate of growth. Bi-partisanism is too easy and too common.

And of course, the founders envisioned an even stronger difference: the Senate and the House were intended to represent fundamentally different interests. But that distinction has been lost for some time. Again, the constitution limited government until it didn’t.

Ultimately I think De Jasay underestimates the potential of structural limitations to slow the growth of government. I think growth may be slowed in relation to the extent that government can be divided against itself. Any successful democratic society must learn to balance interests and if those different interests can be set against each other, then we can hope for at least a kind of detente. (Perhaps akin to the adversarial system we have in law?)

We must recognize and acknowledge that the establishment of government is an inherently precarious business; eternal vigilance is the price of freedom. Erecting institutional and structural checks that serve to balance competing interests may not be a panacea, but it should make radical change more difficult.

The challenge is to devise structural limits that put those interests that are least likely to join together at odds with each other. For example, a wealth qualification that would divide eligible voters; the wealthy vote for Senate, the less wealthy for the House, no one may vote for candidates in both houses in the same election. Those limits, of course, may well appear undemocratic (and decidedly materialistic!), but it may be that pure democracy is not the ultimate goal or good. A stable, healthy republic may serve its citizens better than unfettered democracy (That may sound incendiary at first, but really it’s just common sense. Unfettered democracy allows for the will of the majority to trample the rights of the minority; the central purpose and aim of a constitutional republic is to restrict the power of the majority.)

Of course, there are many difficulties inherent in any attempt to set vested interests against each other, not least of which is the possibility that it may not be possible to divide an electorate into stable interest groups. Class conflicts may not actually exist in such substantial force as to qualify as an effective distinction and it should go without saying that demarcating interests along inessential lines–such as race or sex–is deplorable. Furthermore, it may not be possible to effectively prevent cross-interest collusion–even if such stable and competing interests could be identified. After all, the incentives for coalition building would remain as strong as they are now.

Ultimately, the problem lies in the fact that power creates its own incentives. The greatest restriction on the abuse of power is an informed and principled electorate. Or in other words, ideas matter. Politicians may act to maximize their own influence and power over time, but if such activities were more scorned than applauded, the risk of a politician over-reaching would lessen. (Witness the recent reaction to earmarking.) Public opinion and popular sentiment can and does change. Witness the abolition of slavery and the extension of suffrage to women.

In any event, this analysis only serves to underscore the inadequacy of the current candidates for President. Both Hillary and Obama endorse policies that would further erode what little restrictions currently serve to keep the growth of government in check. And so does McCain.


On the Nature of Government

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

— The Declaration of Independence

Some writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness Positively by uniting our affections, the latter Negatively by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher.

Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one…. For were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.

— Thomas Paine, Common Sense, 1776.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

— The Constitution of the United States of America.

Security is the true design and end of government. To this end we seek to establish Justice above all else. Government is at once the author and the arbiter of law. That we place such terrible responsibility in the hands of an elected body is a testament to the trust we place in our fellows. That we continue to do so, despite the accumulated evidence of the years, is a testament to the power of hope over wisdom. And yet, we do not believe that we are irretrievably lost.

The government–at all levels–has become too profligate with the law. For as much as the law is a necessity, if the law is to serve the aims of justice then it must be constrained: as small and as lean as possible. When the law strives to govern the whole of human action, the law ceases to be a tool of justice and becomes instead a monument to caprice and extortion.

There is, to be sure, a wide range of vice and wickedness that we seek the law to punish, but as the government must, by its necessity, be a public body, the law too should seek only to criminalize whatever wickedness is also a public vice. For just as we regard a private government, obscure and hidden from the public eye, as a danger to Society, so too must we consider a government that seeks to invade personal privacy as inimical to the interests of Society.

We seek to restrict the actions of government to the public sphere. Just as we close our bedroom windows to the prying eyes of intrusive and prying neighbors, so too we close our privacy to the scrutiny of the government. What is purely personal must remain purely personal: the conduct and content of our spiritual lives, the nature and habit of our intimate loves, and the health and condition of our individual bodies.

Security is the true design and end of government. To this end we entrust government with the responsibility to insure domestic tranquility. As much as we wish to preserve our privacy from unwarranted intrusion, we recognize that Justice demands that the government protect the rights and privacy of our neighbors as well as our own. We seek equal treatment before the law, regardless of race, creed, religion, sex, or language. To that end we seek the law to criminalize any actions that deprive any person of life, liberty, or property–and only those actions.

We do not desire that the government establish Society nor that it mold or promote a particular vision of Society but only that it ensure that Society can flourish free from the disruption of violence, theft, fraud, and coercion. Accordingly, we entrust the government to protect private property from thieves, brigands, and its own grubbing hands. We require that the government provide just compensation for the property it confiscates and we should likewise demand that the government publicly account for every expenditure of tax revenue, including who sponsored, approved, sought, and benefited from the expenditure. In all cases, confiscation and spending must be radically curtailed.

Furthermore, we recognize that it is–in all places and at all times–more difficult for distant governments to remain accountable to their constituents. Accordingly, we look for the law to devolve itself, as much as possible, to as local a level as possible. As government is not the answer to all–or even most–of Society’s problems, the federal government is the answer to even fewer. Federalism is the bedrock upon which our government is founded and the further we build away from that foundation, the softer the sand upon which we stand becomes.

Security is the true design and end of government. To this end we empower the government to provide for the common defense. But such a responsibility does not end with the formation of a standing army, nor is it a responsibility that ends at our shores. A secure national defense demands a vigorous attention to all aspects of international relations. It demands that we attend to the health of the international community. It demands that we encourage and promote liberty and democracy throughout the world using intelligence, diplomacy, persuasion and free trade wherever possible. Where all other options fail, we will use force if we must.

A secure national defense requires that we deal with honorably with our neighbors, respecting treaties, free trade, and national sovereignty. But respect cannot mean that we ignore brutality and oppression nor that we concede our own interests to maintain a false hope of peace. A secure national defense requires that we resist terror in all of its forms. Whether a repressive fascist regime or a band of fanatical thugs, evil must be acknowledged and it must be opposed.

The United States is unique among the nations in the modern world. We have power and military might that no other country possesses. We must use that power judiciously and with care and restraint. It is a sad truth that although the world harbors much oppression, our power is still finite. We must act judiciously and with restraint. And when we bring our arms to bear, we must act with resolve and commitment.

Security is the true design and end of government, and there can be no end more important than that we secure the Blessings of Liberty . We secure these blessings–our inalienable rights to life, liberty, and property–so that we might engage productively in a healthy Society. We form attachments with our neighbors, our friends, and our communities so that we might create a world of peaceful, joyful, prosperity. Such is the aim and hope of Society, and the responsibility of government is nothing more than to allow Society to flourish.

Government secures the liberty of its citizens–by protecting one fundamental right above all others: the right to associate. Whether that association is undertaken for monetary gain, personal edification, public instruction, or private pleasure is immaterial. Whether it is a faceless electronic transaction flashing across a continent, a published a work of political opinion, an invitation to a religious service, a lesson that helps teach a child, or a marriage, free association is the essence and cornerstone of public life. Government exists to protect the rights of its citizens so that they might associate freely–and that in their association they might find joy.

Security is the true design and end of government, but the government may, where it can and when it is able, promote the general welfare. But we should remember that when government seeks to promote the general welfare, it should do so only by restraining public vice. The government cannot promote the general welfare by granting largesses or favor upon some select body of the polity, for whenever it seeks to take from some and give to others, the government ensures invidious distinction, manufactures inequity, and promotes the welfare of only the select and the few.

The Pursuit of happiness–the most cherished of all American political ambitions–demands a healthy Society. Happiness may spring from a well within the soul, but it would be a shame beyond measure if our joy were only and always private. We are a gregarious people, we band together for all manner of activities. Our public life–where our aims and desires intersect and join with others–is our Society. But if the government favors some at the expense of others, then Society fractures and divides. If our relations are strained, if our commerce and association is proscribed, watched, regulated, hampered, inspected, and nannied at every moment, then our Society will in turn become crimped and withered: a small and petty thing, impotent and mewling.

We do not seek to confuse society and government. We seek to separate them. We seek to distinguish between the private and public spheres. We seek to restrain the power of government so that a free people might exercise their own.

We do not seek the dissolution of the government. Nor do we seek the dissolution of society. Indeed we believe that the dissolution of Society has come largely because it has withered in the face of encroaching government. That government must be reduced we acknowledge with determination. That Society must be invigorated and renewed we acknowledge with equal resolve.

A Free People demand a Free Society. We do not believe that we must pander to special interests, nor do we believe that people are blind, stupid, or gullible. We are a radically diverse nation, but we remain united by our shared heritage and our vision for the future. Our shared heritage is our commitment to the ideas and ideals that America embodies. Every child born in America–and every immigrant to this nation–shares in the American dream: a dream of personal prosperity and fulfillment. We are committed to the American Experiment. We believe it can still be saved. We believe it can succeed.

Mitt Romney’s Crisis of Conviction

So Mitt Romney gave his “Faith in America” religion speech. It was a good speech as speeches go. It was serious and fine and he said all the things he thought he needed to say. There were a few disappointments though. I was really hoping we’d get to see his special underwear, but alas, he promised not to air his religious laundry in public.

There are some who would have a presidential candidate describe and explain his church’s distinctive doctrines. To do so would enable the very religious test the founders prohibited in the Constitution. No candidate should become the spokesman for his faith. For if he becomes President he will need the prayers of the people of all faiths.

His message, essentially, is: Don’t ask him about his religion, and he won’t bore us with the details. That’s all fine and dandy. He can believe that the Garden of Eden was in Missouri, that Jesus appeared to a bunch of Native Americans, and that Israelites crossed the Atlantic in 600 BCE. They’re all absurd beliefs, but no more absurd than the articles of faith in any other religion. And faith is faith is faith — I don’t want to debate the merits of faith vs. reason in this post.


Romney’s speech is a lie.

He says,

There are some for whom these commitments are not enough. They would prefer it if I would simply distance myself from my religion, say that it is more a tradition than my personal conviction, or disavow one or another of its precepts. That I will not do. I believe in my Mormon faith and I endeavor to live by it. My faith is the faith of my fathers – I will be true to them and to my beliefs.

and later,

Let me assure you that no authorities of my church, or of any other church for that matter, will ever exert influence on presidential decisions. Their authority is theirs, within the province of church affairs, and it ends where the affairs of the nation begin. … I will put no doctrine of any church above the plain duties of the office and the sovereign authority of the law.

(emphasis added)

Some have commented that there’s a natural tension between those two sentiments, but that’s being disingenuous. Those two statements are in direct conflict. We do not live in a caliphate. The laws of man and the laws of God diverge, and they do so with great regularity. In cases where those differences are significant and subject to national debate, where will Romney stand?

Will Romney recognize current US law and uphold a woman’s right to abortion? Or will he work to undermine current law in service of his church and his conscience?

Will Romney work to clarify current law and ensure that, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States?” Or will he work to ensure that those who share his private moral convictions concerning the nature of marriage are granted privileges that others–whose lifestyle and beliefs differ from his–are denied?

Romney wants us to believe that he is a man of strong religious conviction and that he will subordinate that conviction to the sovereign authority of law. But that’s a lie. A servant cannot serve two masters. Either he is a man of great religious conviction who will be guided and informed buy that conviction, or he is not.

If he is a man of conviction, then he should show the courage of his convictions and promise to let his conscience be his guide.

If he is not, then he should not be trusted.

The sad fact is that Mitt Romney believes that he can subordinate his convictions while in office. If we are to believe his current rhetoric, he must have substantially subordinated his beliefs while governor of Massachusetts.

That speaks to a shallow sort of conviction. There may be much to gain form pandering to potential voters, but there is little personal virtue in such plastic principles. Romney seems to have replaced his moral compass with a weather vane. And a man who blows with the wind will find himself lost and broken in a storm.

A candidate’s personal beliefs–his inner convictions about what is good and right and true–are of supreme importance in a presidential election. We are a nation divided on policy and politics. We are a nation at war. We can ill afford a candidate who will be guided only by polls and political expedience. The idea that a candidate’s beliefs are fungible and irrelevant is pernicious. But far worse is the candidate who promises to subordinate his beliefs to the whims of whatever special interest brings him the most votes.

Mitt Romney is a man of faith, but it is not his adherence to his Mormon faith that should doom his candidacy. It is his elevation of expedience over conviction.

Here piggy, piggy

I ran across this article today. It drives me insane!

I have a simple question, can anyone justify to me why the Federal government should be building baseball parks or a “mule and packer” museum? Don’t get me wrong, I don’t think that State or local governments should be doing this kind of stuff either, but it seems so far outside Federal jurisdiction as to be absurd on its face. I know, I know… “What Commerce Clause?”

How are these kinds of things not front-page news? Why aren’t political candidates plagued by questions demanding that they account for their swinish behavior? Do the American people just not care?

The Democrats retook control of Congress partially on a platform of reform, so there must have been some public outrage — but where is that outrage now? The earmark and ethics reform movement underfoot in Congress is…. Well, frankly, it’s b~llsh~t.

But I don’t want to pick on the new Democratic Congress — the pork parade was no better under Republicans than it is under the Dems. No worse either, but certainly no better.

As a strong proponent of across-the-board spending cuts, earmarks and pork projects irritate me more than a lot of people, but thankfully, not more than everyone else. Glenn Reynolds (of Instapundit fame) started two years ago to try and put some pressure on the worst offenders, and it’s had some success (remember the Bridge to Nowhere?). Of course, Citizens Against Government Waste has been doing this kind of thing for a while, and deserve many kudos as well.

So I’m putting up a simple, unscientific poll. We’ll let it run for a while and see what the results are. (Aside from the obvious result: “No one reads this blog.”)

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