Setting the Record Straight

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article was originally written on June 6, 1980

received in a recent mail delivery — along with the other junk mail
from other sources — one of those four page "reports"
that individual congressmen are fond of sending to people in their
districts. This report was from a man who informed me that he was
my "representative" in Congress. By all appearances, I
think this man sincerely believes himself to occupy that status!
I must admit to some confusion on this latter point, however, because
his report was only addressed to "Postal Patron." That's
hardly the kind of personal greeting one expects from a "representative."
It's kind of like having an attorney address a letter to a client
"to whom it may concern," or having a young man write
a love poem to his girl friend and address it to "occupant."
At the very least, I would think that a man who professes to be
my "representative" could afford me the luxury of a more
personal report, such as a telephone call or a hand-written note.

I don't want to sound as if I am picking on this man. In spite of
his claiming to "represent" me, I don't even know
him. Judging from his picture that appears five times in the four
pages, he seems to be a nice person: he certainly smiles a lot.
But I must say that, until I received his report, I was not even
aware of his name. This raises the interesting question of how he
ever got to be my alleged representative in the first place.

The report told me of the many things he was up to, as my "representative,"
but without ever enlightening me as to how he got the job. I certainly
hadn't voted either for him, or for any other candidate to go to
Washington on my behalf. Neither had my wife — who is also a "Postal
Patron" at our house and, presumably, another person whom this
man is claiming to represent.

Whatever the origins of this congressman's current employment, he
goes on to state, in his report, that "government regulation
is an accepted fact in our complex, technological society. No one
questions the necessity of regulation — only its scope." This
is the clearest evidence that this man does not represent me for,
if he did, he would surely be aware that I do "question
the necessity of regulation" and, far from accepting such
practices I totally reject them. The congressman has obviously
been getting incorrect information about my preferences. Perhaps
if he had been giving me those personal telephone calls, or had
stopped by my house on one of his periodic visits to his district,
I could have straightened out his confusion.

What all of this points up is the absurdity, the wholly fictional
nature, of the system of so-called "representative government."
I am certain that there are many people in this man's district who
do "accept" and not "question the necessity
of regulation." But there are also many who accept one
of the regulatory schemes, but reject another, for each of
which the congressman may have cast a favorable vote. How, then,
can this man — or any other politician — claim to "represent"
both sides on this question? If he genuinely represents me,
he ought to be following my wishes; he ought to introduce
legislation to abolish all government regulation of people's
lives. Better yet, he ought to introduce a constitutional amendment
providing for the "separation of society and state," a
measure that would serve, in a broader context, the same restrictions
on state power as are embraced by the idea of "separation of
church and state!"

If, as an attorney, I were to undertake to represent both the plaintiff
and the defendant in a lawsuit, not only would I be subject to disciplinary
action by the state bar association, but would be open to a damage
action from either party (or both) adversely affected by my dual
relationship. Perhaps there is a lesson in how such conflicts of
interest are handled elsewhere, which could be applied to politicians
and other government officials who claim to "represent"

I have long thought it would be instructive to set up a test case
to have the courts determine the status of these alleged "agents."
We could, prior to an election, send letters to those seeking to
be elected as our "representatives" and tell them (1)
that we intend to vote for them as our "representative,"
and (2) spell out, in detail, the positions we wish them to take
on any issue that is important to us (e.g., never to vote for a
tax increase or any extension of governmental authority). After
this person is elected, send them another letter telling them that
we had voted for them and reminding them of our previous instructions.
Once the politician takes office, we can begin that process of "eternal
vigilance" which, as July 4th speakers are fond
of reminding us, "is the price of liberty." As soon as
the politician votes contrary to our previous instructions, we could
sue for damages (e.g., if he voted for a tax increase), and for
a writ of mandate compelling that "representative" to
follow our instructions in the future. After all, no client would
(or should) tolerate his attorney disregarding his instructions;
no corporation would allow its sales representatives to act contrary
to its directives; no principal, in other words, need ever
put up with an agent ignoring his or her orders. Why should
politicians be any different?

I am not so foolish as to imagine one would get a favorable ruling
from the courts. Judges, representing one of the enforcement arms
of state power, would see the implications that such a lawsuit would
have to the maintenance of political authority. But the courts would,
I believe, be forced to rule that elected officials are not,
in fact, the "representatives" of anyone — particularly
since the voting process, like activities in an adult bookstore,
are conducted in the secrecy of a private booth. Any court would
likely dismiss this as a "frivolous" lawsuit, leaving
us with at least a judicial declaration of political reality. The
state, itself, would have told us that it is frivolous for us to
imagine that elected officials "represent" us in any way
to which, unlike our true agents, they might be answerable for harms
they do to us.

Shaffer [send
him e-mail
] teaches at the Southwestern University School
of Law.

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