It is certainly no longer
news that our elected representatives rarely read the laws they pass,
let alone think through the possible applications and implications of
those laws before casting their votes. Indeed, just as the well-coiffed
talking heads that bring us the evening news are ever more accurately
described as "news readers" than as newsmen and newswomen, the
members of Congress are increasingly more accurately described as
"law voters" than as lawmakers. What is possibly more amazing,
however, is that our representatives seem to expect us to view them as
the injured party, and credit them with only their good intentions, when
they later express shock that the laws they passed contain provisions
they did not "intend."
The most recent case in
point concerns the discovery by certain members of Congress, including
the Senate minority whip, that the Patriot Act provides investigative
tools that go well beyond protection against terrorism. As reported in
the November 5thLas Vegas Review-Journal, the Patriot
Act has apparently been employed for the first time in a public
corruption probe, specifically, to investigate whether Nevada strip club
owner Michael Galardi has been bribing local politicians. The FBI
confirmed that it used Section 314 of the act to subpoena financial
records of Galardi and several present and former Las Vegas city
councilmen and county commissioners to determine if Galardi was making,
and the politicians accepting, illicit payments. Section 314 authorizes
the Secretary of the Treasury to promulgate regulations "with the
specific purpose of encouraging regulatory authorities and law
enforcement authorities to share with financial institutions information
regarding individuals, entities, and organizations engaged in or
reasonably suspected based on credible evidence of engaging in terrorist
acts or money laundering activities."
(The Las Vegas
Review-Journal news article does not raise or pursue the interesting
question of how the FBI convinced a judge that its investigation into
whether Galardi’s alleged payments of local politicians using proceeds
earned in his topless clubs (presumably a lawful business in Nevada)
constituted "money laundering activities." Since "bribery
of politicians" and "money laundering" are not, in the
normal understanding of those words, remotely similar activities, one
suspects either that the legal definition of "money
laundering" encompasses far more financial activities than actual
laundering or there is some other interesting story here.)
Both of Nevada’s
Democratic representatives, Senator and minority whip Harry Reid and
Representative Shelley Berkley, criticized the FBI for using the Patriot
Act in a white-collar criminal probe. Sen. Reid stated that "the
law was intended for activities related to terrorism and not to naked
women," while Rep. Berkley assured us that "it was never my
intention that the Patriot Act be used for garden-variety crimes and
investigations." According to the news article, Rep. Berkley
further indicated that she was preparing an inquiry to the FBI about its
guidelines for using the act in cases that do not involve terrorism, and
stated that the law makes it easy for citizens’ rights to be abused.
What on earth are we to
make of such statements? Both Reid and Berkley voted for the Patriot
Act. Do our "lawmakers" believe that when they vote for a law,
they are only voting their subjective intentions, regardless of what the
words of the act, which they don’t read or understand, say? Do they
believe that their unspoken (and clearly, unwritten) thoughts somehow
limit the clear language of the statute? How do they have the face to
act astonished when they discover that the law is used in the manner
that it actually provides for? How, exactly, are they wronged when the
words of the law they voted for, which they did not bother to read or to
reflect on, exceed their "intentions"? What do they expect
when they abandon the responsibility to write the law by authorizing the
agency responsible for enforcing the law to write it, as they did with
Section 314? Are we supposed to take their protestations after the fact
as evidence that they are looking out for us and care about our civil
liberties, when they could not be bothered to make the effort in the
first place and the current state of affairs is entirely of their own
making?
Let’s say you were a
legislator convinced, in the wake of September 11, that it was necessary
to provide the federal government with broad, powerful new search and
seizure powers to prevent terrorism. However, you were also worried that
such extraordinary measures might violate, in some respects, the 4th
amendment, or at the very least would constitute a drastic expansion of
the federal government’s ability to pry into the lives of Americans
that could (as Rep. Berkley is reported to have said) make it easy for
citizens’ rights to be abused. How might you reconcile these
conflicting desires? Simply give the federal government carte blanche,
and rely on prosecutorial discretion and non-binding, changeable-at-will
internal "guidelines" promulgated by those charged with
enforcing the law to avoid abuse – i.e., provide no protection at all?
Or might you, instead, make sure the bill contained something along
these lines: "Notwithstanding any other provision of this Act,
evidence obtained using, or resulting from the use of, subpoena powers,
reporting procedures or other means created or authorized by this Act
may be employed solely to prosecute terrorism, aid to terrorism, or
conspiracy to commit terrorism or aid to terrorism, and shall be
excluded from use in the prosecution of any other crime and in any civil
or administrative proceeding." Yes, something like that might
prevent the use of Section 314 in a bribery case, at least if we also
paid attention to the act’s definition of "terrorism," to be
sure that it did not encompass all possible human behavior.
Of course, the Patriot Act
contains no such provision, so perhaps we may be forgiven for
questioning how much concern our legislators had for the potential abuse
of the new search and seizure powers created by the act or for our
privacy and rights. However, good news! There is a possibility that
Congress will actually scrutinize what it passed, if enough people are
harmed by the law that Congress starts to hear about it. The Patriot Act
expires in 2005 unless it is renewed, and Senator Reid, speaking about
the act’s use in the Galardi criminal probe, stated that "[M]ore
activity like this is going to cause us to take a close look at what was
passed." So some lawmakers in Congress might eventually read the
law, maybe as early as 2005. If enough lives are first turned upside
down or ruined, if the act’s excesses are made manifest and word
filters back from the provinces, Congress will finally look at what it
did.
Such complacence regarding
the content of laws would constitute a shocking breach of trust if we
supposed that members of Congress had a duty to perform the role the
Constitution assigned to them, or if we judged such behavior in light of
the theory by which legislation in a democratic society is
legitimated: the process by which laws are passed supposedly
assures us that there is some connection, some degree of correspondence
through "representation," between what the laws say and what
"the people" actually think meet – or at least want. If that
process becomes a sham, then it becomes problematic to assert that the
laws represent the "will of the people" or even the "will
of the majority." Laws cease to be "self-government" and
become, instead, fiat imposed upon subjects. However, while the
Constitution and Rousseau’s theory of the "general will" may
be good material for the nation’s high school civics books, it is
doubtful that many believe this claptrap any more. And so it is unseemly
and quaint to dwell overmuch on how laws are made in this country, lest
we begin questioning whether such laws can ever have any legitimate
claim upon us or be viewed as anything but the exercise of arbitrary,
unaccountable power.
So indeed it is not my
intention, by drawing attention to the recent remarks of the Democratic
representatives of the State of Nevada, to shame our legislators for
their inattention and unconcern, to cry out that we need more
conscientious legislators, or to argue that we need campaign finance
reform so that our representatives can devote more time to lawmaking and
less to fund-raising. Why, when it is conceivable that even if they did
perform the role assigned to them by the Constitution, the resulting law
might have been even worse?
No, since legislation is
often voted on by men and women who do not overly trouble themselves to
know what the bills they vote on say, relying perhaps on executive
summaries of their contents or, in a real pinch, the bill’s title, and
dealing only with the portions of the bills that lobbyists complain
about, since innumerable regulations are written and passed not by
Congress but by unelected bureaucrats in federal agencies unaccountable
to voters, and since our elected representatives know better than anyone
else what it takes to secure re-election and maintain their position, it
seems safe to assume that our legislators’ ignorance of the laws they
pass is rational. It simply is not an important part of the business of
being an elected representative to write or carefully review and
deliberate upon bills, and then exercise close supervision over their
subsequent administration. Doubtless it is far more efficient to let
staffers or the administration write the laws, and simply focus when and
if it becomes apparent that campaign contributions or the votes of some
meaningful number of constituents are at stake. Since the overwhelming
majority of voters are even more ignorant – and even less desirous to
know – the contents of legislation than the members of Congress, the
most important feature of legislation is its symbolic value – that the
act have a good title that clearly announces that Congress is
"doing something" to solve a problem the polls tell them the
voters care about.
My intention, instead, is
to draw attention to the two systemic conditions that make this conduct
possible, rational, and inevitable. First, legislators are not
responsible for the laws that they pass or for the consequences of those
laws. As Lysander Spooner pointed out in No
Treason – The Constitution of No Authority, the Constitution
itself grants this immunity to federal lawmakers. Article I, Section 6
provides that the members of Congress "shall in all cases, except
treason, felony and breach of the peace, be privileged from arrest
during their attendance at the session of their respective Houses, and
in going to and returning from the same; and for any speech or debate in
either House, they shall not be questioned in any other place."
Thus, legislators cannot be held accountable for any law they pass or
for the consequences of their laws. The sole remedy of the electorate is
to vote them out of office.
It is difficult, if not
impossible, to think of any other situation in which a man is given so
extensive a power over the lives, liberty and fortunes of others where,
no matter how great the harm he commits, the worst and only thing that
can happen to him is that he loses his job.1
Ask whether you would trust, or willingly use the services of a doctor,
attorney, pharmacist, car manufacturer, or those who make, process and
sell you the foods that you eat if they were exempt from liability for
any harm they committed. Ask whether you would tolerate corporations
that want to sell you their stock telling you, in their annual reports
and prospectuses, the kind of lies and distortions that politicians
routinely utter about government laws and programs – for example,
describing Social Security as a retirement insurance or pension program,
when "ponzi scheme" comes far closer to the truth. Under
securities laws, corporations are not only forbidden to lie about their
financial condition and activities, but are also required to not omit to
tell you anything if omitting the information would render that which
they do tell you misleading. No such anti-fraud or full disclosure laws
apply to political speech.
But this is not all. A
second condition, also noted by Spooner, founds the entire enterprise of
government, top to bottom, on irresponsibility and unaccountability. Not
only are legislators not responsible for the consequences of the laws
they pass, but the voters are also not responsible for them, because
they are not responsible for the actions of their representatives. The
secret ballot insures that no voter can ever be held accountable for
voting for any particular representative.
Spooner made these points
to demonstrate that representatives were in no sense "agents"
of the people, that the notion of "representative government"
was sheer myth and nonsense. In the real world, a principal is
responsible for the actions of his agent. If the agent injures another
in the performance of his duties for the principal, the principal is
liable. It is this principle that, for example, allows a person injured
by negligent automobile design to sue the auto manufacturer. The
manufacturer cannot escape liability by saying, "I didn’t design
it, it was George Doe in my engineering department. Sue him." If no
one assumes responsibility for the acts of a "representative,"
the "representative" is not an agent, or as Spooner puts it,
is an agent of nobody, and is simply acting on his own authority and
recognizance.
In the real world, an
agent represents some definite person or group. Because
"representatives" are elected by secret ballot, however, no
"representative" can point to a single person that he in fact
"represents," can ever show that anyone in particular ever
really voted for him, can ever show that he represents anyone in
particular, so in truth and legally speaking he "represents"
no one. He is simply acting on his own authority – for which he is
accountable and responsible to no one. As Spooner puts it, "a
secret ballot makes a secret government." Further, since
legislators are unaccountable for the power they exercise over others,
their power to dispose of the lives, liberty and property of others
through laws is effectively unlimited in scope.2
Thus it is simply nonsense
to assert the government is the "servant" or "agent"
of the people, or that members of Congress are
"representative" of the people. While in office, the
"representatives" simply hold and wield "an absolute,
irresponsible power." The people over whom such control is
exercised are, in reality, nothing more than slaves: "A man is none
the less a slave because he is allowed to choose a new master once in a
term of years. Neither are a people any the less slaves because
permitted periodically to choose new masters. What makes them slaves is
the fact that they now are, and are always hereafter to be, in the hands
of men whose power over them is, and always is to be, absolute and
irresponsible."
It is instructive to
consider what a government constructed on the legal principles of agency
would look like, that is, a world in which men who exercised power over
others assumed responsibility for the consequences of their governance,
where voters identified themselves as the principals of representatives
and assumed responsibility for their representatives’ actions.
For one thing, it would
quickly become clear the extent to which "government"
consisted of one group plundering another. For example, supposing the
enactment of laws providing farm subsidies or steel tariffs, the
consumers who pay the resulting higher food or steel prices and who did
not vote for the representatives who approved the legislation could then
bring a rather large class action suit for damages against all those who
voted for the representatives who approved the law. Assuming they made
the case that their food and steel prices were increased as a result of
those laws, the voters who elected the approving legislators would be
charged their aliquot portion of the damages, to be paid over to the
damaged parties, unless the legislators and their constituents could
mount some defense. Outside of government, however, where men are
accountable under principles of tort law for the harm they inflict on
others, the party committing harm may not escape liability by pleading
that, while certain parties are injured by his actions, he is not liable
to them because their injuries are "offset" in some
cosmic balance sheet by the good conferred by his actions upon some other
persons, or by some collective overall good to "society as a
whole."
As for regulators in
agencies, since no one elects them and they don’t even claim to be
acting as "representatives," it would probably be more just to
simply hold them personally responsible for the consequences of their
regulations. So, for example, the parents whose children were
decapitated or otherwise killed after the introduction of air bags could
bring wrongful death suits against the men and women in the Department
of Transportation who penned the regulations requiring their
installation in automobiles for failing to have foreseen what any
"reasonable man" exercising "ordinary care" would
easily have foreseen. In other words, subjecting them to the same legal
standard regarding negligence to which the men who design and
manufacture automobiles are subject.
The nation’s trial
lawyers would soon have more than tobacco, firearms and fast food class
actions upon which to expend their creative energies, as the adverse
consequences of every subsidy, welfare program, labor rule, food and
drug law, environmental regulation, and medical insurance regulation
became legally actionable. Were legislators and those who elect them to
have responsibility for their actions, they would no doubt become
extremely interested in the exact contents of legislation and its
effects. Very likely, the ardor many now feel for inflicting public
service on others would soon grow quite cool.
Such reflections make
plain the extent to which the activities that we consider to compose
"government" can proceed only because those doing the
governing are not responsible for the consequences of their acts. Not
the legislators who make the laws and not the people who want the laws.
Not only is the control exercised over others irresponsible, but such
control is possible only because it is not responsible.
As there are absolutely no
consequences to be paid for using legal force against others, such a
system is an open invitation to predation, to the use of law as a means
of securing unearned benefits. Far from ending the Hobbesian "war
of all against all," government is an institutionalization of it;
it makes it a veritable business.
How can a system that is
founded on irresponsibility, that affirmatively invites it and actively
encourages it, ever create responsibility? Certainly laws can create
coerced conformity of behavior under threat of punishment. But is that
the same as responsibility? Does that create responsibility? Consider
Paul’s great insight, in Romans, that the Law, and by extension, the
most rigorous and complete compliance with the Law, cannot save; the Law
can only condemn. Paul was speaking of God’s Law, such as the
commandments, but we may suppose that what is true of God’s Law is
necessarily true of man’s.
The point is surely not
that men do not need laws, that no laws are legitimate, or that absolute
lawlessness equates with absolute responsibility. Man is a social animal
that, if anything, tends to profligacy in his creation of rules and
demands for compliance. There is little reason to believe that anarchy
will soon break out. Rules, procedures and protocols exist in and for
all aspects of life; they are spontaneously created constantly to
address any and every felt need. There are, for example, protocols for
matters as simple as getting on and off elevators and riding in crowded
subway cars. The point is that there are very grave differences between
laws developed by and for parties who have an ongoing vested stake in
how the laws work, who are mutually accountable and are responsible for
the consequences of their actions, and fiat promulgated by an authority
that is not responsible for its orders or for their consequences.
In an essay titled
"The Needless State," the French political philosopher Anthony
de Jasay notes that, despite the problematic or non-existent ability, in
certain cases, to legally enforce cross-border contracts in
international trade should one party fail to perform, such trade
nonetheless flourishes, and goods from remote parts of the globe reach
our homes, because the participants have worked out shipping and payment
protocols to insure mutual performance, and have established private
trade organizations comprised of those who engage in such trade and are
interested in keeping it operating smoothly and profitably that, among
other things, provide private dispute resolution. There is no legal
punishment, but the existence of the trade organizations assures that
those who violate their contracts or deal unfairly will soon acquire a
reputation within the group that will effectively blacklist or preclude
them from future dealings. Despite the fact that the cross-border
participants are in a Hobbesian "state of nature" with respect
to one another because they are not subject to a single overarching
state that has authority and control over their conduct, no monolithic
Leviathan to overawe them with threat of punishment to behave, there is
nonetheless cooperation, "law" regulating and guiding the
parties’ conduct, and order. One way to view this is that
statelessness does not necessarily mean lawlessness. However, it can
also equally be affirmed that in the situation that de Jasay describes,
there is indeed "government"; it’s just not the state. The
absence of the state does necessarily mean the absence of government.
Formerly, natural law
theorists and philosophers made inquiry to determine the characteristics
that made a law "legitimate." These theories were trashed, and
this pursuit largely abandoned, by legal positivists at the turn of the
last century, for whom law was not "discovered," inherent in
or in concordance with a fixed "human nature," but simply a
human artifact, the essence of which was a rule promulgated by an
authority with power to punish noncompliance. The law, in short, was
simply that which a state made and, since it was something made, it
could be whatever a state declared it to be.
Well, yes, that is law,
but it is a particular kind of law, with certain characteristics
and consequences that distinguish it from other kinds of laws.
The question of legitimacy cannot be supplanted, or superseded, by
efficacy; they are not the same thing. The mistake is in the leap from
the fact that law is made to a conclusion that it can be whatever we
make it. The fact that it is made does not necessarily mean that it can
be manufactured. There are some human artifacts which no one
makes. Language is perhaps the most obvious example. At some point, some
one person used the word, "whatever" in the manner to which we
are now sorely accustomed. Gradually, it was picked up and used by
others because it resonated with their thoughts and actions; it seemed
an apt new way to express something they wanted to express. It’s
legitimacy as an expression inheres in this resonance and concordance.
Eventually it will be abandoned by the same kind of process. At no step
in the process is its use or nonuse imposed on anyone. Indeed, it is
doubtful that even the first person to use it in the new way planned it,
or uttered it with premeditated intent; more than likely it just
"came out." The process is, metaphorically, more akin to an
organic or natural process than to intentional manufacture or fiat, to a
Picardian "make it so." Possibly laws, to be legitimate, also
have to be formed in a similar way. The process by which the great
principles of the common law were formed suggest that this is so.
Another example of an
artifact that is not made by anyone is the market. Just as a
"command and control" market, where prices are set by the
political process rather than by supply and demand, lacks real feedback
and valid information about the allocation of resources because prices
are shams, that is, lacks the touchstone of reality, just as this brings
hardship in the form of shortages of things that people want and an
oversupply of things that people don’t want, and if persisted in long
and extensively enough, complete economic collapse, so a command and
control social structure built upon unaccountable fiat lacks feedback
and real information about its actions because there is no
responsibility for the consequences of its orders. Looking around us, it
is perhaps not too much to say that if persisted in long and extensively
enough, this leads to complete societal collapse.
In the 19th
century Lysander Spooner pointed out that irresponsibility and
unaccountability were the essence of government, in the form of the
state. Not too many pause to consider the implications and consequences
of this, or will hold them fast once they do. Everyone instead wants
"reform" to correct this or that problem, but none of the
reforms go to the fundamental systemic conditions that make the state
what it is. How, then, can they change the nature of the thing? As
Edmund Burke once said, "In vain you tell me that artificial
government is good, but that I fall out only with the abuse. The thing!
The thing itself is the abuse!" There are other means of government
than states, and other forms of law besides fiat. It is high time we
again started thinking them.
Notes
It is important to realize just how
attenuated a possibility even this is. Getting fired for passing bad
laws assumes that voters draw a causal connection between the laws
passed by their representatives and the harms or "unintended
consequences" of those laws. First, elections are usually far
more about the future than the past. Elections generally hinge on
what benefits the candidates are promising to deliver – the
"vision thing." Second, Congress follows the rule that you
can't be blamed for a law you didn't write. Most law-making activity
is fobbed off to administrative agencies, whose excesses or
maladroit regulation then permit Congress to appear in the role of
savior, collecting campaign contributions and votes by making
promises to correct the problems. Even where Congress acts on its
own, however, not only are the deleterious consequences of
legislation not always readily apparent, but the voters have little
to no incentive to care or notice because of the second of the
systemic conditions to which I draw attention in this article, also
noted by Spooner. Voters are not responsible for the actions of
their representatives. They have no reason to care unless and until
it adversely affects them directly. As long as the laws just destroy
other people's lives, ignorance is bliss.
One consequence of the fact that
legislators are not responsible for the laws they pass is that it
will be impossible, ultimately, to sustain any form of limited
government within the bounds specified by a constitution. Paper
limitations on the scope of power or guarantees of individual rights
cannot be maintained, for there are absolutely no consequences to be
paid for violating them, and everyone, legislators and voters alike,
have every incentive to override them.
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