Individual Liberty and the American System

Reflecting on the merits and flaws of our social/political structure is the sort of thing free and responsible people ought to do on a regular basis. If not every day, as Socrates recommended, at least a few times a year. But if those structures are tolerably good, it’s understandable that complacency might set in, and as we go about our daily business we may not stop to ponder the nature of justice and the degree to which our society has it. Of course, my “daily business” is literally doing this, so let me take this opportunity to encourage others to do it. On the 250th anniversary of American independence, it’s worth asking fundamental questions about what we think we’re doing and why. Has the model of representative government embraced by the Founders stood the test of time? Is it a dead hand holding us back, or the backbone of our liberty? It is possible, of course, that the answer is “sort of, a little of both, it’s complicated.” This is why philosophers get on people’s nerves. For Socrates, it meant execution. Since I’m no Socrates, I imagine the worst I’ll get is angry or insulting online comments.

The American Founders were the inheritors of the liberal revolution of the previous century. They believed and argued in favor of concepts that were not, by the 1770s, entirely radical anymore, but neither were they commonplace. The old-world model had it that there were different sorts of people – aristocrats, who were literally “better than” others, noble; and commoners. The order of things was that the nobility were of a nature to rule, and common folk were of a nature to be ruled. The liberal revolution started from the premise that people are people – all of equal moral standing.[1]

That is not to say that one person isn’t better than another person in this or that respect, but that humans don’t naturally have qualifications to rule or be ruled as if they were queen bees and worker bees. Worker bees really do have a nature which is defined by service to the queen, but, liberalism holds, people aren’t like that. People are capable of forming their own projects and acting on their own judgement, making lives for themselves as they see fit. This means that authority must be justified, and that justification requires consent. Saying that Jones has rights is just to say that others are not automatically entitled to control Jones’ life. At the same time, this implies that Jones is not entitled to control others’ lives. The American Declaration of Independence drives this home by articulating that the purpose of having institutions of government, then, is protecting those rights.

If the justification for government is protecting people in their lives and liberty, then people in positions of power need to be limited in the exercise of that power. At the same time, living together as a unit – Massachusetts, New York, Pennsylvania, South Carolina – seems to require an apparatus. One option is direct democracy – every citizen gets to vote on every issue. The Founders knew about this option from their study of history, and were aware of its strengths as well as its drawbacks. If we have all participants discussing the pros and cons of an issue, every angle can be explored, and the people’s deliberation will yield a well-considered outcome. But, once we have a large number of people, what tends to happen is that a handful of orators sway others, who then do not speak. These orators can appeal to facts and logic, but they can also appeal to people’s passions, including fear, animosity, envy, resentment. This means the majority can turn on a dime when one speaker is better than another at inflaming those passions. On top of this is the fundamental problem that just because 51% think something is right, doesn’t make it right.[2]

So the founders looked to another model: representative government. Rather than have a “conversation” among tens of thousands of people, a smaller body might actually be able to discuss and deliberate. But unlike an oligarchy, if this body were made up of people who “represented” the larger public, it might preserve the consent condition. The Continental Congress was such a body – the people whose names appear at the bottom of the Declaration were there to “represent” the people in their colonies. This basic concept, already present in colonial constitutions, found its way into each state’s constitution and ultimately the new federal constitution. So today, other than a very small handful of plebiscitary ballot issues, our role in government is voting for the membership of the smaller body, and the smaller body then discusses and deliberates and makes reasonable and well-reasoned decisions on behalf of the people. At least, that’s what the founders were intending to set up. 

If your reaction to the previous paragraph was “that’s incredibly naïve,” you’ve seen why it’s worth philosophical reflection – if there is a disconnect between how something is supposed to be and how it actually is, we need to think about why. There are a few reasons for this disconnect. One is the same as in direct democracy: just because most of them agree on something, doesn’t make it right. Some of the other reasons are more complicated.

What determines “representation”? Smith and Jones both claim that they will “represent” me in congress better than the other will. It’s possible, and indeed likely, that even though it’s true that Smith comes closer to my views than Jones, Smith is not a very good representative of my views either. But even worse, why should I think that Smith’s actions are based on my views? Smith has hundreds or thousands or tens of thousands of constituents. Smith could be sincerely trying to represent the modal constituent while failing to represent me. And it’s also possible that Smith is not sincerely trying to do even that. Smith may be influenced by lobbyists, whose access to Smith is more direct than mine or any other constituent’s. Smith may be pressured to go along with a proposal for fear of seeming “difficult” or “uncooperative” to others. Smith may be concerned with the optics of a complex issue and worried about how that will be perceived at re-election time.

More deeply concerning is that as we think of a representative government being justified, because it represents the people, we risk losing sight of the reason we care about it being representative in the first place; namely to protect rights. The danger of complacency is now clear: we vote for delegates to the law-making body; they make laws; we now have to obey laws. It’s easy to overlook in that progression that they’re not justified in making just any laws – only in protecting rights. The founders were well aware that there is a tension between democratic processes and individual rights – if everything is subject to majoritarian voting, individual rights can vanish as easily as they do under a tyrant. So they tried to design a system in which democratic processes could be used to decide some things but not others. For example, the Constitution says that Congress has the power to establish post offices and post roads. But it also specifies that they cannot make any laws abridging freedom of the press. So, the establishment of post offices is conducted by a democratic process, but democratic processes cannot be used to “decide” whether to abridge the freedom of the press. Some matters are the subject of democratic processes; others are specifically excluded. The exclusions tend to be matters concerning individual rights. 

But as has become clear over time, this tends to get overlooked. The lawmakers’ conception of their role greatly expanded. Also, public perception of the proper scope of the lawmakers’ role has expanded. It is unclear which is the chicken and which is the egg, but we have arrived at a place where lawmakers frequently make laws that are not connected to protecting rights, and the people expect lawmakers to do this. So things like starting a business, operating a business, pursuing a profession, having sex, getting married, deciding what to eat or drink or smoke, owning or transferring property all involve regulation and law. While some of the regulatory state might be relevant to protecting rights, most of it is not. Part of the problem might lie in ambitious people exploiting vague language, such as the part of the Constitution that gives the legislature the power to “make all laws which shall be necessary and proper” for doing the other things mentioned in Article I, including the also-vague power to “regulate commerce.” But since the people have come to expect these expansive powers, the arguments tend to be about the details rather than the underlying problem. And to make matters worse, people with influence will deliberately try to exploit this expansion of power to secure special privilege or protection.

This is why the best way to think about the model of representative government that the founders set up is ambivalence. On the one hand, it’s clear that direct democracy, like monarchy, is no guarantee of the protection of individuals’ rights. One need only look at recent populist movements to see the barely-cloaked hostility towards individuals and their rights, and the way demagogues capture and exploit the resentment of large factions. Representative government is supposed to prevent that. However, it obviously does not do a good job preventing it. So the question is, does our model of representative government do a better job safeguarding rights than alternatives? And while I think the answer to that question is “yes,” it could be better.

For example, why is it that, despite being designed to mitigate populist movements, our system can be captured by them anyway? One answer to that is the two-party system. The founders seemed to have thought that a bicameral legislature with a weak executive would prevent government overreach, but the advent of parties undermined that. Party loyalty seems to outweigh other considerations, thwarting the founders’ plans. The gradual expansion of executive power is both a cause and an effect of rising populism: the executive can claim to be the “true” representative of the people, fighting against a legislature that is beholden to special interests but which acquiesces in the growth of executive power for self-interested reasons. This seems paradoxical, but it actually benefits individual legislators to cede power to the executive. And the parties’ use of winner-take-all primary voting favors extremist candidates who can win with minority vote shares.[3]

But it’s not just the two-party system and the voting paradoxes that are endemic to it – it’s the decline of appreciation, both among politicians and regular people, for the basic idea that the government’s justification stems from its role in rights protection, which can never be accomplished via rights violations. The basic model – representative government, independent judiciary, bill of rights – is pretty solid, but the volume of rights violations we have is evidence that some bugs need to be worked out. The system that was intended to be the backbone of our liberties could be, if we could only remember what it was for.

[1] Readers may recognize my paraphrase of John Locke here, but Locke is not the only thinker to advance these views.

[2] See, e.g., Shakespeare’s Julius Caesar, III, ii

[3] Regular readers will recognize here the basic insights of the “public choice” school of thought. See, e.g., Randy Simmons, Beyond Politics (Independent Institute, 2011), or James Buchanan and Gordon Tullock, The Calculus of Consent (Liberty Fund, 1999 (1962)).