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.
- 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.
November 27, 2003