Responsible Only for Our Good Intentions

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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 5th Las
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

  1. 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.
  2. 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.

November
27, 2003

Jeff
Snyder [send
him mail
]
is an attorney who works in Manhattan. He is the author of
Nation
of Cowards — Essays on the Ethics of Gun Control
, which examines
the American character as revealed by the gun control debate.


        
        

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