Democracy is a great brake, but it is a terrible steering wheel.
– Guy Herbert
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Samizdata quote of the dayJuly 4th, 2014 |
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I think it depends. The Swiss have made it work pretty well.
Sadly the Swiss government has been growing for a long time.
The central problem is that assemblies (Parliaments etc) have become legislation factories.
Instead of the law being something that is based on principles of natural justice applied to individual cases, the law is now considered something that is “made” (not declared) by the “legislature” which is seen as a full time job. One can even see signs of this sort of thinking in the American Declaration of Independence and the Constitution of the United States.
The real problem America faced was not with “the King” (who the Declaration of Independence goes on about – saying how he refused his consent for “needful laws” what on Earth is that?) it was with PARLIAMENT – the idea that Parliament could pass whatever taxes (and so on)that it wanted. This was because the idea that Parliament should sit regularly and could (and SHOULD) pass lots of “legislation” had become powerful.
To some extent instead of resisting these modern British ideas, the Americans copied them.
James Madison worried that State “legislatures” were passing lots of absurd “laws” (which they were) he hoped a strong Federal government would prevent this. A very strange idea to us today – but even a century ago there was still hope that the Supreme Court would veto State (not just Federal)”laws” that violated freed of contract and so on.
But who appoints the Supreme Court?
And what about the tidal wave of Federal “legislation”? Especially now the Tenth Amendment is a dead letter.
There are no clear limits on what the Federal government can tax and spend about – ditto the Swiss Confederation. At least with a Canton (or small State) one can vote with one’s feet.
The Classical writers were correct(and the young Madison was mistaken) – geographically large Republics do not work well.
A league or alliance of such Republics for defence (and NOTHING ELSE)may work – but nothing beyond that..
Parliaments and Estates were meant to be checks upon Kings – not a “job” (to “pay compensation” for people to turn up to them is fatal) and law is not meant to be “legislation” – it is meant to be the application of the principles of natural justice applied to the concrete circumstances of specific cases (in the light of tradition – i.e. the reasoning out of cases over generations).
“Acts of Parliament” (or “Acts of Parliament”), if they should exist at all (which I doubt), should be rare things – and such assemblies should sit only for a few days a year (to pass or NOT pass the budget for the armed forces).
In short the Victorian Maitland (really a follower of Thomas Hobbes – not, as he pretended to be, a student of the Common Law of England) was utterly wrong.
No legislation factories. No passing “laws” for the “public interest” the “good of the people” (or whatever) – that is not the function of law (which is to apply the principles of natural justice to specific cases in the light of tradition).
To someone with a proper understanding of law (such as the late Michael Oakeshott) there is no “Public Interest”, “Common Good”, “General Welfare” (or whatever) there is only a dispute between Mr Smith and Mr Jones (for example Mr Jones is producing soot from his factory which is messing up the washing of Mr Smith upon the line).
As for taxation.
The old view was that in peacetime there should be no taxation at all – that the King should live in a restrained manner (with the income of his personal estates alone).
Even if one accepts the need for taxation in peacetime (to maintain a standing army and so on – a DEEPLY disputed contention) the idea that Mr Smith should be taxed to provide for the “essential needs and public services” of Mr Jones, and that Mr Jones should be taxed to provide for the “essential needs and public services” of Mr Smith, is demented – it is utterly incompatible with Civil Society (at least in the long term).
The glory of the United States was the Tenth Amendment.
The idea that the Federal government had no “police power” (was not there to tell ordinary citizens how to live their lives) and was also NOT there to finance “public services”.
When the Tenth Amendment died (without ever being formally repealed) the glory of America started to pass away.
Almost needless to say…..
The idea of the EXECUTIVE “making laws” is terrible.
“Delegated legislation” “statutory instruments” (and so on) all obscene – even worse (vastly worse) than even a “legislature”, “making laws”.
“But Paul you are echoing the Supreme Court in 1935 when they struck down the National Recovery Agency – the modern state is impossible if the line of reasoning in the 1935 judgement is followed”.
I know I am echoing the 1935 judgement – because (a rare wonder) the Supreme Court actually did its job in the 1935 judgement against the National Recovery Agency (the tin pot FASCISM of the “New Deal” – with the jack booted General Johnson and his “Blue Eagle” thugs).
As for “the modern state” – it is an abomination.
Democracy has its place. It’s a great way to organize shareholders meetings for example. Shareholder’s meetings operate a lot closer to the Athenian “ideal” though.
I don’t think it scales up so well for whole countries – especially when you’re given no say about the choices (open primaries) as in the UK. In such a scenario democracy tends more toward giving the illusion of control than any meaningful influence.
That’s why I think a strong, binding constitution that effectively neuters the government is a whole lot more important than democracy. I’d much prefer a strong “constitutional dictatorship” to the supposed democracy of the UK. Sure, you could have both a constitution and democracy, but if the constitution is working correctly it shouldn’t matter who you vote for. Their powers of action should be so limited as to make all politicians functionally equivalent.
Given the way the US constitution has been systematically dismantled I propose a couple of things:
– The constitution should be inclusive as to government powers rather than exclusive. That is, it should specifically state the things the government is allowed to do, accompanied with a clear statement that if it aint on the list, the government aint allowed to do it.
– It should deal in what the government is allowed to do rather than what the people are allowed to do. If it isn’t within the government’s purview to stop you, the assumption should always be that it’s allowed.
– It should be very carefully worded so as to avoid loopholes. None of this “well regulated militia” crap that tyrants can wilfully twist 200 years later.
– The constitution itself should contain penalty clauses aimed at any politicians who even try to subvert it. I suggest public boiling in oil.
A law stating that for every region (town, county, state, country etc) that creates a new law which makes a previously legal act illegal, or increase the penalties of an already illegal act, or increases/makes new taxes etc, that region needs a referendum to approve it would be a great asset. The law would also state that failure to provide a referendum means no taxes need to be paid by those in that region.
If the populace as a whole believed that in a given situation they had the right to withhold taxes, it would take a long time for a coercive government to break that belief and start controlling people again.
Also Juries need the freedom to say “not guilty” when they mean “they broke the law, but the law is stupid and this man shouldn’t be punished.”
It is called jury nullification and it is an established common law practice.
Thanks Perry, I had heard it was, but don’t know enough about it. Do Juries ever hear that this is an option? If a person was clearly guilty of a crime and pleaded so (e.g. the guy who found a handgun and took it into the police station) would a jury be able to find him not guilty? Would they be presented with that as an option?
It would be good if there was a referendum lock to make it harder to start new laws, and a way for juries to refer bad laws back to parliament.
Jamess, it varies from place to place. In most cases, it has been made a crime for anyone to tell juries about their option to nullify beforehand. I believe New Hampshire passed a law requiring that juries be told about nullification, but they’re the exception.
I have been arguing for years supporting a limited form of Initiative and Referendum: The ability to repeal any law by popular vote.
I specifically do not want the ability to create a law using I&R, as witch-hunts and madness-of-crowds do occur, as the infamous California Proposition 8 of 2008 demonstrates.
Add to that the idea of laws needing consent after the legislature creates, debates, and passes them. I think there is a path to citizen control over the laws to be found there. Though the specifics would matter greatly.
Thanks, Paul 😛
Personally, I think this is a great pithy quote.
Jamess, jury nullification is indeed an ancient principle of Anglo-Saxon jurisprudence, and it has been specifically acknowledged and accepted by the US Supreme Court. Nonetheless, the concept is anathema to judges and prosecutors, who are aggressive in preventing juries from being aware of it. (Indeed, judges routinely lie about it, instructing the jury that they are to determine only “the facts”, while the court has exclusive authority to determine “the law”.) Where I live the jury questionnaires in both federal and state courts contain specific questions designed to identify anyone who is aware and supportive of jury nullification, so the only way for such a person to get onto a jury here is to lie in the questionnaire. (Despite all the warnings about “perjury”, it is highly questionable whether anyone could actually be prosecuted for such an action.) There is, however, an organization devoted to informing the public about jury nullification: the Fully Informed Jury Association. It does great work and deserves every libertarian’s support.
JV, the US Constitution does contain precisely those features you itemized (with the exception of a penalty clause; I rather like your “boiling in oil” suggestion). The federal government’s powers are specifically listed (primarily in Article I), and the 10th Amendment very carefully provides that all powers not specifically granted to the federal government are reserved to the states and the people. This was discussed at length by Madison in the Federalist Papers, and formed the common understanding when the Constitution was ratified. And the document was worded as carefully as humanly possible (given the limitation that a constitution must of necessity deal more in generalities than specifics). The language used in the Constitution was widely and commonly understood at the time; the Framers (and the educated electorate) all knew (for instance) that “regulate” (whether used in reference to interstate commerce or state militias) meant “make regular”, in the sense of ensuring that any state-imposed rules were equally applicable to all, not “issue volumes of mindless rules instructing people on every minute detail of compliance with a vaguely worded and poorly-conceived statute”. (The Commerce Clause was intended to prevent states from erecting trade barriers against each other, not to give the federal government jurisdiction over every aspect of commerce and communications.) The Framers weren’t stupid and they knew what they were doing. The problem is that although the “separation of powers” was intended to result in the different branches of government keeping each other in check, there is no means of protecting ourselves when those branches actively collude with each other to jointly expand governmental power. Unfortunately, this is precisely what has occurred over the last century or so. I don’t know if it is possible for any constitution to truly constrain a state (Hans-Herman Hoppe argues that it is not), but the Framers made a valiant (if ultimately failing) attempt at it, and their effort did a reasonably good job for the first 150 years or so. Perhaps we just need to learn from their mistakes.
[Insert shameless personal plug here: I have written and self-published a treatise on restoring federalism to the United States, which addresses this and many other problems with our present government and argues for the ratification of a Revised Constitution. Anyone interested in seeing it can download a free pdf copy here. Or, if you’re feeling flush and would like to throw me a couple of bucks, you can purchase an ebook version at Amazon here. Comments are welcome.]
Paul, you are arguing from a common law perspective (which I share, and I mostly agree with your comments). However, it should be noted that that is only one approach to governance and law, and most other societies have taken very different approaches. Most come from a tradition of legislated (not evolved) law, as in the Code Napoléon and other civil law societies. I find it a bit arrogant to assert that the only “proper” understanding of law is one derived from “principles of natural justice.”
Laird,
Absolutely. The original US constitution contains nods to everything I mentioned. Recognising that everything that remains good about the US is usually a result of whatever constitutional protections remain at least partly intact, I conclude that constitutions are a good idea and think we should aim to learn from the “dry run” the USA provides us with. For example the problems created by the phrase “well regulated” in the 2A could have been anticipated, even if that was not the intent with which there were written.
Also, you draw attention to the 10th Amendment, which is largely ignored these days. But would a 10th Amendment coupled with a “Boiling in Oil” amendment meet the same fate? 😉
Basically what I’m talking about is taking the very best features of the US constitution and rewriting them so there’s absolutely no way around them. Lots of repetition and “Yes, we really do mean the people have the right to keep weapons of war. No, we’re not kidding. Seriously.” type stuff would be necessary.
The intent with such an approach would be to make “interpreting the constitution away” an impossibility. If they want to ignore it, it should be glaringly obvious that’s what they’re doing.
While it probably wouldn’t restrain an “enthusiastic” government for long, because it is so iron clad, I’d like to think the constitution’s violation would provide a Rubicon with which to judge the appropriate moment for starting a revolution.
Maybe I’m an idealist though,
Why do we need a steering wheel?
Can’t we do what comes naturally like every other creature on the planet?
We can!
JV, my suggestion for such an “iron clad” rewriting of the Constitution (with additional controls) appears in my book, a link to which was included in my post. You might consider it.
Paul Marks July 5, 2014 at 6:34 am:
The real problem America faced was not with “the King”… it was with PARLIAMENT…
As of 1776, Parliament was controlled by the ministry of “the King’s friends”, that is, the faction attached to George III, who was the last British monarch to rule as well as reign, though how much he actually ruled is not clear.
… the idea that Parliament could pass whatever taxes (and so on) that it wanted.
The problem was not the legislative scope of Parliament’s authority, but its geographic scope. It was one thing for Britain to rule over the American colonies when they were newly founded outposts. And for over a century, the colonies had been internally autonomous. The great breach came when Parliament, in which Americans were not represented, presumed to impose local legislation on Americans (the Stamp Act).
Democrashy
Built by robots
Driven by the willfully blind
(Voiced by Sean Connery)
That quote is a zinger, but sounds like something those Dark Enlightenment folks would think up.
I am skeptical of the feasibility of creating an iron-clad constitution. Language drifts a lot with time, institutions change (press, militia) and the inclination of people to be disingenuous in interpretation is ever present. Which is not to say it shouldn’t be attempted.
I agree with Richard, it may be worth the effort but that is not enough. No legal document can save a society from appointing its own slave masters if enough people are determined to do so. Laws alone are not enough.
There also have to be robust and uncompromising institutions dedicated to the principle that there are limits to politics. Moreover they need to be institutions that respond to their violence backed ordered abolition… with violence. The Second Amendment of the US Constitution is mostly about such a notion actually.
In the end, all political power really does grow out of the barrel of a gun. If you do not believe me, try telling the state that not only are you not going to pay any taxes, it may not sent anyone to enter your property.
I hear that the Isle of Mann has a good society, as close to libertarian as we are likely to see. Has anyone been there to see for themselves?
The Isle of Man is a bit less statist than modern Britain – and it does seem to “work” (just about), with people having children and so on.
However, even Guernsey and Jersey (in the Channel) are, essentially, Welfare States (as the Isle of Man is) – although the small island of Sark is a bit different (“applying for benefits” is still not the Sark way of life).
This ideology of statism creeps up without real justification – it is demented fashion.
For example the small land of Andorra (between France and Spain) had no Welfare State when I was born. Yet the old did not die in the snow, and the sick were not left without medical treatment.
However, Welfarism came – “it will just be an insurance scheme” (i.e. “just” pay roll taxes).
Then came the sales tax (VAT), now comes income tax.
These things do not come for good reasons – they really do not.
I think I would need to correct you, Paul, on one small point- They may not be good reasons, but they would need to sound good or they would not be proposed, nor tolerated.
Rich – first the “Crown” and person of the King (in this case George III) are not the same thing.
And even intense critics of George III (such as Edmund “Economical Reform” Burke) understood that George III was NOT what this was about. it was about the view of a clear majority of the House of Commons that it had the right to tax and regulate.
Either Mr Jefferson lacked certain basic knowledge – or he was being dishonest.
I hope that Mr Jefferson was innocent of certain basic information – but the other possibility has occurred to many people.
After all what is all that stuff about “needful laws”? The matter is nothing to do with “geography”.
State “legislatures” were passing lots of crazy regulations (they still do)- and adding another “legislature” (the Congress) on top was not going to solve that problem (it was going to make it worse).
Admitting that he problem was the House of Commons (not the King) would have undermined the case for this new Congress.
So the problem WAS the “legislative scope” of the House of Commons NOT its geographical position.
Unless we are going to say (absurdly) that it is O.K. for Congress to impose a tax on whiskey, but wrong for the House of Commons to do so.
As far back as 1794 the Scots-Irish whiskey makers of Penn found out that the new government could do bad stuff to.
“But at least they had the vote to get rid of the new government”.
Yes indeed – and the Whiskey tax was repealed at the urging of Mr Jefferson when he became President (so good or him!).
However, the tax (and the “licenses”) came back with the Civil War – and have never left (armed Federal officers of the ATF).
Having the vote is NOT freedom (freedom is being left unmolested), and the geographical location of the government is not relevant.
Ask a victim of the EPA if having the vote makes them free.
On the contrary – this is one of the endless offices and officials who “eat the substance of the people” and order them about.
If this was the fault of George III (actually a man of modest tastes who lived in a rather small house) then why is it happening vastly more now?
The vast Federal bureaucracy (and the taxes needed to pay for it) would have horrified Lord North and co.
Still – on one thing we can all agree, the idea that “laws” should be made by the EXECUTIVE is an abomination.
No “delegated legislation” and so on.
The (long forgotten) British Bill of Rights forbids the King from making laws or refusing to enforce laws made by Parliament.
Sadly the American Bill of Rights does not even see the problem (although the Constitution, in a terrible blunder, set up an elected Head of State).
Hence “Executive Orders” and the de facto refusal to enforce Acts of Congress.
An American President has powers that George III never had (although his enemies claimed he wanted them).
“But the President is elected”.
Which is irrelevant.
With the de facto (during World War II)reversal of the Supreme Court judgement of 1935 (getting rid of the National Recovery Agency and denying the right of the Executive to make regulations under vague “Enabling Acts” of Congress) the United States now has a worse government than George III ever dreamed of.
The United States (unlike Britain) once had a government that was limited (in what it could spend money and so on), this made the United States BETTER than Britain.
Sadly this is no longer so. The limitation of the American government is no longer there.
Well Nick YES “everybody else does it” or “it is the spirit of the age” do sound like good reasons to most people.
To me they (and the rest of the justifications) sound pathetic – but then I am nasty old sod (nothing like most people).
The problem is the wagon, and whether or not you can get off.
For what its worth here are my suggestions:
I think a simple requirement that in order to pass laws 60% of MPs need to vote for it, and commensurately any law can be revoked with 40%, could be helpful. 70/30 would be better, but realistically the system needs not be so inflexible that it won’t get “reformed” to something much worse (like what we have at the moment). Plenty of laws have been passed with less than 60% support so it should still have an impact. 40% is a big enough number for the 60% to think twice about ignoring them.
A one term limit on involvement in politics at any level (i.e. you can’t be a councillor for one term, then an MP later on) to prevent it becoming a career. I would prefer jury style elections to public office but I can’t see this working.
Establish a general Ombudsman’s office, with the sole objective of prosecuting politicians and people employed by the public sector. Make career advancement contingent on number of successful prosecutions.
Nobody employed by the State, nor immediate family members, should be eligible for the vote. Nobody reliant on state largesse should be eligible for the vote either.
I agree with Jaded Voluntaryists ideas. A constitution really needs to be ‘for dummies’ with lots of repetition and statements of the obvious.
That is why I believe that only certain ‘peoples’ are able to sustain a democracy. As I said, the Swiss are doing fine so far – even the expansion of their state is not going to impact too greatly, as long as there remains strong grassroots forces at the local level, and the very fact that they are swiss.
Other less capable folks will never be able to make democracy work. Examples: Detroit, South Africa. Even Taiwan and Japan have lots of problems, and I have doubts about whether democracy is the best (or least worst) option for them.
Once again this weekend, I had an extended discussion with a liberal friend. Once again, the argument that gained traction and opened a door (I think – I don’t press for concessions) was that any power given to government to restrain a particular evil will be captured by that very evil it is intended to restrain. We touched on the rational ignorance of voters. The consequences of any one of your votes on a ballot as too small of an impact on you personally to be worth spending a lot of time thinking about. Yet to those being regulated or to those attempting to capture the power of government, a great expenditure of time, planning and money to manipulate the rationally uniformed voters is worthwhile.
I make the point that there is no power that can be given to government that will not be captured by those it was originally aimed at. All that is achieved is that one has handed powerful weapons to ones enemies.
While I choose my values by principles not pragmatism, exposing this incontrovertible outcome has been the most effective way I have found to open the door to more thoughtful discussions of limits of government power and how to structure those limits.
Mid:
Those are the kinds of discussions that keep me motivated. So long as a person retains a reasonably open mind, you can make a lot of progress with that kind of argument. Well done.
Mid:
Incidentally, I suspect that the trend among progressives of pooh-poohing “ideology” stems in part from the realization that their positions aren’t solidly grounded in principle, compared to some competing arguments. I used to think the demonizing of “ideology” was a relatively recent phenomenon, but I’ve seen examples of it going back at least to the Depression, and probably earlier.
wobbly guy, maybe we should insist that states all speak different languages! Switzerland has no single official language, so this may help them to keep the Federal Government small, whilst the cantons have their own languages.
I believe that a way to keep government small would be the time-share option. If you wanted to become a citizen of your local canton, then you would first need to do some part-time community work (militia, volunteer fire-fighters, road patrols, etc.) for eleven months of the year, and then you would be a part of the county government for one month, able to directly vote on any and all county laws and business. If some of you are more eloquent, then those ones might be voted as ambassador to the next month when it votes, etc.
If we all share in the work of government, instead of creating a separate entity, then that should keep governments small.
And, of course, it you didn’t want to vote, you needn’t become a citizen, but you wouldn’t have any vote on any public laws.
I repeat that the Swiss Confederation central government has been growing for many years.
Part of this is the od “tail wags the dog” thing – the Swiss Social Democrats were let in the government in 1959 (they have been in it ever since), and once even a few such people are let in they, they control a lot of policy.
Germany is now seeing the same thing – the German SPD got few votes (one of its worst election results ever), but it is part of the government THEREFORE it controls a lot of policy.
Think of a committee – if there is even one leftist on a committee (even if the committee has a dozen members) that leftist will control policy.
This is because most people do not want to seem “lacking in compassion” – so the leftist will shame people into supporting more government spending and more regulations.
As Ayn Rand noted long ago – as the left have won the PHILOSOPHICAL battle, winning political battles is easy for them.
Tedd – the sneering at ideology goes back to Karl Marx.
According to Karl – the ideas of other people were ideology (false ideas covering class interests) whereas his own ideas were THE TRUTH.
Sneering at the ideas of other people saved Karl the trouble of proving them wrong (which he would be unable to do).
It also saved Karl the trouble of proving his ideas were correct (which he would also be unable to do).
The left are still following the same play book.
First (as with “Critical Theory”) “unmask” the class interests behind ideas the left do not like (meaning that one does not have to present evidence and argument against these ideas), then slip in leftist ideas as THE TRUTH (without presenting evidence or argument in favour of them).
This is the way of academia (including the stuff they produce for children in High School and so on)and the “mainsteam” media – including the entertainment media.