Copyright © 1998 by Paul F. deLespinasse, Adrian College
For details of generous permission to copy or
link, click here.
Document may not print if you have not
clicked here first.
Footnotes are at the end of the chapter.
"The effective limitation of the powers of a legislature does ... not require another organized authority capable of concerted action above it; it may be produced by a state of opinion which brings it about that only certain kinds of commands which the legislature issues are accepted as laws. Such opinion will be concerned not with the particular content of the decision of the legislature but with the general attributes of the kind of rules which the legislator is meant to proclaim and to which alone the people are willing to give support. This power of opinion does not rest on the capacity of the holders to take any course of concerted action, but is merely a negative power of withholding that support on which the power of the legislator ultimately rests."There is no contradiction in the existence of a state of opinion which commands implicit obedience to the legislator so long as he commits himself to a general rule, but refuses obedience when he orders particular actions."
F.A. Hayek, Rules and Order
If a Metaconstitutional government or some close approximation is ever achieved, how well will it cope with the challenges facing all political systems? Can a Metaconstitutional regime be stable, or will it contain within itself the seeds of its own destruction? We will divide this question into three parts: 1. the relationship between legitimacy and stability; 2. structural protections against instability; 3. civil disobedience to pseudolaws as a technique for defending the Metaconstitution from abuses by those who govern under its authority.
We can all recognize the large element of truth in Max Weber's conclusion that:
"He who seeks the salvation of the soul, of his own and others, should not seek it along the avenue of politics." Footnote 1.
Given the power of the sword upon which every government rests, one is tempted to generalize that ethics is ethics and politics is politics and never the twain shall meet. But the relationship between ethics and politics is not that simple. As Weber put it:
"Should it really matter so little for the ethical demands on politics that politics operates with very special means, namely, power backed up by violence?" Footnote 2.
In large part because of the nature of their power, people who govern strongly desire legitimacy. They must threaten people with sanctions and be prepared to impose them when laws are broken. This is the very essence of government. But sanctions are nasty--deprivations of life, liberty, or property. They are actions which are universally condemned by major religious traditions ("Thou shalt not kill," "Thou shalt not steal," etc). Because their actions are so distasteful, rulers find it helpful if they can deduce those actions from acceptable general rules or principles. Paradoxically, they must have noble principles in order to keep their self-respect in spite of the terrible actions they must take in order to maintain their government.
Rulers are therefor always looking for principles to be used as weapons in the fight for men's minds. Even rulers with no interest in justice or the welfare of others, even rulers who are strictly opportunists seeking power, glory, and luxury will grope for fine-sounding principles to rationalize their actions. But general principles always have implication for more than the actions which they seek to justify. These additional implications may be regarded as side effects of acting in pursuit of legitimacy, side effects of invoking principles. Thus, principles helpful to the rulers in one case become an embarrassment in other cases. The whole usefulness of principles lies in the fact that they rise above particular cases, and as such they come back to haunt their supporters.
The actions of those who govern can never be justifiable in themselves, even in an ideal political system. Without some kind of generally accepted principles of legitimacy, therefore, political stability is impossible. Brute force can never cinch the matter. Guglielmo Ferrero, in his Principles of Power, graphically noted the military and revolutionary horrors early in the nineteenth century when the royal theory of legitimacy was challenged by the democratic concept of legitimacy. Earlier, the wars between Catholic and Protestant factions involved similarly conflicting concepts of legitimacy. More recently, clashing concepts of legitimacy have undergirded terrorism, hijackings, kidnappings, and political assassinations in western Europe and the Middle East.
The Metaconstitutional order, by definition, will be a just society, but this fact cannot guarantee that it will be stable. Stability requires that the government be legitimate. Legitimacy exists only when people in general consider that the government is just. The justice of a government is not necessarily perceived. (Nor, conversely, does the injustice of a government necessarily mean that most people will realize its injustice.)
Chances for political stability are maximized only when a just society is generally perceived as such. Neither a just society generally seen as unjust nor an unjust order currently seen as just is a good prospect for longevity. (See table.) An unjust society generally perceived as such is so unstable that actual examples will be rare.
Perceived situation
Actual Justice Injustice
situation:
Justice 1. maximum stability 2.weak instability
Injustice 3. unreliable stability 4.strong instability
(The truth will
eventually come
out.)
Since a Metaconstitutional society is just by definition, the key to its stability lies in the attitudes that people take towards it. There are bound to be some individuals who will decide that, compared to other possible arrangements, the Metaconstitution is inadequate or even highly unjust. For any specific group of people, it may be quite possible to imagine a society in which they and people like them would be better off than they are under the Metaconstitution. For example, anybody who would like to be a dictator will object to the firm Metaconstitutional requirement of democracy. Anybody who is not satisfied with the standard of living permitted by their personal labor market value, their equal share of the social dividend, the fruits of any investments they have made with legitimately acquired money, and voluntary donations, could imagine a society in which--one way or another--they could live like a king. Thanks to freedom of speech, press, and voluntary association such dissatisfied individuals will be able to identify other people who agree with them and enter into concerted efforts to change the existing order.
Of course there can be nothing illegal about a desire to change the existing order, even when that order is assumed to be an ideal one. The nature of law is such that there can be no such thing as an illegal desire. And even actions intended to bring about a change need not be illegal; it all depends on the nature of those actions.
Clearly, efforts to overthrow the existing government by armed uprising cannot be tolerated. Actions of this type can and should be made illegal. And if concerted actions rose to the level at which normal methods of law enforcement--i.e. the prosecution of individuals for actions violating general rules--become unworkable, the government will be derelict in its duties to the public if it does not put the rebellion down by military means.
As long, however, as the soreheads (as I will label them) refrain from illegal actions, they must be free to try to bring about their undesirable changes. They must be free to try to persuade people that their cause is just and deserves support. They must be free to run for elective office on whatever platform they wish. Indeed, it is their freedom to do these things on behalf of their program which clinches the government's right to repress any efforts to impose their ideas by violent means.
How much danger is there that the soreheads would be able to prevail at the ballot box? Is there any assurance that the Metaconstitution will not self-destruct due to the very democracy and freedom which it incorporates? How reliable is public opinion as a bulwark of the Metaconstitution?
The problem will probably not be unmanageable. Soreheads are not the only people who are free to speak and organize. If, as I have tried to demonstrate, the Metaconstitution will serve the legitimate interests of the vast bulk of the population, at least some of these people will rise to defend it when it comes under attack. Ironically, the soreheads may play an important role in assuring the stability of the Metaconstitutional order. By challenging its arrangements and assumptions, the soreheads force Metaconstitutionalists to articulate their own ideas and bring them to public attention. The soreheads prevent the Metaconstitution from being so taken for granted that in time nobody understands its basic principles. This is a useful service. Were it not that even an ideal government will offend a certain number of people it might be necessary to officially (though covertly!) sponsor such groups in order to inoculate the society against thoughtless stagnation.
It is unlikely that the soreheads will be able to consolidate themselves into one powerful movement. There will probably be dozens of different schools of sorehead thought, many of which will criticize existing arrangements from diametrically opposite points of view. Soreheads, thus, will serve as checks and balances against each other to some extent.
One of the most important sources of support for destabilization of a political system will not exist under the Metaconstitution. Foreign governments have traditionally given aid and comfort to domestic opponents of their enemies in order to weaken them militarily. But a Metaconstitutional government, which must be universal, is foreign to no government. Those under its rule who would try to bring it down must therefore do so on their own. They will not have foreign support in a world in which there are no foreigners. The advantages which this gives to the defenders of the Metaconstitution are considerable.
The more serious threat to the stability of a Metaconstitutional government probably will come from within ruling circles rather than from outside of them. Even an ideal government must be made up of leaders and officials who are mortal and fallible and who will not always place the general welfare ahead of their own desires and ambitions. Unlike the soreheads, these leaders and officials are endowed with governing power, the power of the sword, and also with very considerable purchasing power based on the governmental power to tax. If these officials get out of control they can do enormous damage.
Democracy, of course, provides some protection against official abuses. Elected leaders must anticipate the reactions of the electorate to everything that they do,and their rivals will exploit any misuse of their powers as a weapon for unseating them in the next election. As stated by James Madison in the Federalist Papers (#10):
"a dependence on the people is, no doubt, the primary control on government ...."
But as Madison immediately went on to say, there is also a need for "auxiliary precautions." Democracy, while essential, is not an adequate protection against abuses of power. Fortunately, as the Federalist notes at great length, a very powerful structural protection against usurpation and abuse of governmental power is available: the separation of powers.
Although earlier writers (such as John Locke) were quite interested in the separation of powers, the classical formulation was handed down to us by Montesquieu in his book De L'Esprit Des Lois. It was Montesquieu who hit on the distinction between legislative, executive,and judicial power which undergirds the modern notion.
The legislative power clearly includes the power to enact general rules of action enforceable by sanctions. Historically, the same body that is responsible for legislating has also controlled the governmental purse strings. It has determined how much money can be spent by the government and for what purposes. Since revenues must be raised by law, it is quite natural that some control over the uses to which the resulting money will be put will reside in the legislature. Otherwise, it could simply refuse to raise the needed monies.
The judicial power is also clearly defined. It is the power to decide specific cases by applying general rules of law.
Separation of powers theory has never been very clear, however, about the distinctively executive functions. "The execution of the laws" is a formula which provides little insight into the executive power. What does it mean to "execute" a law? As we just saw, applying laws to decide specific cases is a judicial function, not an executive one. The extent to which an executive branch engages in adjudication--in administrative law proceedings--should not be allowed to confuse the issue. This is clearly the exercise of a judicial function no matter what it is called and no matter who does it.
Nor does prosecution of lawbreakers by the executive, hauling them into court and pressing charges against them, constitute a distinctively executive--or even necessarily a governmental--function. While this role is indeed often performed by executive branch officials, there is no obvious reason why this would always need to be the case. Conceivably, any private citizen could be allowed to assume the prosecutorial role.
It seems to me that the basic function of a chief executive is to make contracts on behalf of the government. That is, within limits imposed by the legislative branch, the chief executive determines with whom and on what terms the government is willing to enter into voluntary associations. The President of the United States, for example, heads the government agencies which purchase goods and services from private corporations. Such purchases are contractual and constitute voluntary associations between the government and the corporations willing to do business with it. Likewise, the President is ultimately responsible for hiring (and, sometimes, firing) government employees. These too are contractually based voluntary associations between the government and each of the individual employees. Finally, in foreign affairs presidential agents negotiate treaties and executive agreements with other governments. These agreements are also contractual in form and (when properly ratified in the case of treaties) establish voluntary associations between the government of the U.S. and the other governments in question.
The separation of powers provides some structural protection against executive or judicial excesses. The executive cannot prosecute and the courts cannot convict for an action which the legislature refuses to prohibit. Executive power is severely limited by the need for legislative action to provide the resources needed to induce corporations and individuals to enter into voluntary associations with the government. Both the legislature and the executive are limited by the power of the courts to strike down actions which exceed their authority or violate a constitution or law.
Unfortunately when the judiciary runs amok, the other two branches are relatively helpless to do anything about it. The legislature can refine judicially misinterpreted laws, but if judges pretend to be interpreting a hard-to-amend constitution, little can be done in the short run except to impeach and remove them. Impeachment, however, is an extreme step which no legislature will lightly undertake, especially if its members do not understand what the courts are doing. Court decisions are complicated and technical and legislative attention-span and sophistication are limited. It is not difficult for usurpation-minded judges to muddy the waters enough to avoid provoking too much legislative indignation.
It may be possible to rein in misbehaving courts by appointing new judges who will respect the laws. But once there are bad applies in the judicial barrel, they may spoil the new ones by coopting them into their usurpation of power.
Contrary to the Federalist, therefore, which felt that the judiciary would be the "least dangerous" branch, it may well turn out to be the most dangerous. Alexander Hamilton, writing in the Federalist(#78), argued that:
"Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever."
But how would Hamilton explain recent court decisions in which the right of judges to order a tax increase (in a good cause!) was created?
A Metaconstitutional society will need some protection against judicial usurpation of legislative powers and of the power of the electorate. I have no panaceas to suggest, but one possibility would be a training program for new legislators. The program would warn them about the extraordinary danger posed by judicial usurpation and provided some principles to help them detect any such judicial misbehavior before it had gotten very far. Judges are very bright people. After a couple of their brethren have been impeached they will probably learn how to control themselves.
One reason such a training program would be no panacea is that many legislators may share the noble goals in pursuit of which judicial usurpation usually takes place. They will not want to be accused by political rivals of hostility to those goals if they vote to impeach a judge for the unjudicial methods by which he or she is trying to achieve them. If the general public does not understand the distinction between legislative and judicial roles, merely training legislators will have limited impact on their actions.
Furthermore, a needful function of courts is to strike down illegal decisions of the legislature. If the legislature got into the habit of impeaching judges on the drop of a hat, it might impair this badly needed judicial contribution.
Ultimately, as usual, the problem boils down to a problem of public opinion. But how many of the public will be willing to undertake the same training program proposed for new legislators?
Another structural protection often proposed has been federalism, in which powers are divided, not between different branches of government but between a central government and the governments of its constituent units. It has been suggested that this vertical separation of powers, like its horizontal analog, can prevent the central government from abusing its powers.
The universal Metaconstitutional government will almost certainly be a federal one. But this will be almost entirely for tactical reasons of securing willing participation by the largest possible number of countries, minimizing the number of areas that will have to be brought into the system over the dead bodies (possibly quite literally!) of their political leaders. Hopefully, the benefits of federalism will outweigh its disadvantages, but it should not be forgotten that there are disadvantages. If American experience is indicative, federalism presents a particular threat to the concept of the rule of law. If the line between central government jurisdiction and constituent unit jurisdiction is drawn in terms of the purposes for which each level of government may enact laws, it may lead to great confusion in thinking about law and may even pave the way for concepts of illegal purposes in general.
Some governments have established departments to help individual citizens hold other government bodies to their own rules. In the U.S., this "ombudsman" function is performed informally by congressmen and members of other legislative bodies under the general rubric of "casework" or "constituency service." The universal Metaconstitutional government might do well to institute an analogous organization to elicit and analyze constructive citizen policy proposals. Legislators are very inattentive to such proposals, especially when they involve big, long-term projects. They are happy to have staff do casework for constituents with personal problems, because this has immediate benefits when reelection time rolls around.
I once sent letters to all 100 members of the U.S. Senate. The letters put forward a very major policy proposal with important ramifications (long-run) for U.S.-Soviet relations, energy, and the environment. Of the seven senators from whose staff I received replies, four indicated they were forwarding my letter to the senior senator from Michigan because "senatorial courtesy" requires that one's own senator take care of problems. In a nutshell, they assumed that I had a problem, not a proposal! I suspect they didn't even know what to do with a proposal, so they pretended it was a problem. A state of affairs where this can happen is a problem, all right.
It is especially a problem if it happens in a universal government. In a world of independent nation-states, political systems which turn a deaf ear to problems and opportunities will be left behind. Competition will take out the blase and self-satisfied. But a universal government has no competition. It must therefore lean over backward to stimulate policy ideas and assure that all proposals get serious attention and analysis by individuals who are not simply seeking the first pretext they can find to brush them off as the work of crackpots.
It is true, of course, that a considerable proportion of proposals sent to such a government ideas department would be unrealistic or unworkable for one reason or another. Even these proposals, however, should be replied to by an official who has thought about the idea, in a letter which explains why the official thinks it is not a proposal which can and should be implemented. The proposal, and the official's objections to it, should also be entered into a computerized data bank which is open for public inspection as well as for retrospective analysis by the department itself. If a pattern of brushing off ideas which later turn out to have been good ones can be detected, procedures can be changed to try to avoid doing this in the future. Credit for good ideas can be given, even if only posthumously. Individuals browsing through the resulting data bank may be stimulated to have a good idea in thinking even about bad ideas, or they may recognize a kernel of wisdom which got lost in the shuffle.
Ideally, though, the ideas department should be set up so that it recognizes as many good ideas as actually come in for what they are, develops them appropriately, and forwards them to the political authorities for decision and possible implementation. The officers who actually read the mail should be carefully chosen on the basis of their own creative abilities and their ability to perceive and appreciate creativity in other people. They should be encouraged to pass proposals which they are not in a good position to evaluate to a fellow officer who is in a better position to do so. Perhaps these officials should be paid at least partly on a commission basis so they have a personal stake in detecting good ideas. All of them should be morbidly aware of the principle that all discourse is a mixture of sense and nonsense. They should not give up on a proposal and assume it is worthless the minute they run into any idiotic element in it. They should not be people inclined to throw the baby out with the bathwater.
In today's world, good ideas get implemented only if the person who had them is forceful, organized, persuasive, persistent, and willing to endure protracted indifference, hostility, resentment, and scorn from many directions. Not all individuals who produce good ideas have all of these virtues. But everybody will benefit from good ideas; it is in the general interest to establish government institutions to promote this end. It will also help to protect the stability of the Metaconstitutional order if such a department exists. Stability, as Metternich said, is not immobility. The alternative to constant gradual change in society is occasional, dramatic, probably violent change. Anything which can promote orderly, constructive integration of good ideas into practice therefore is a necessary part of a stable Metaconstitutional order.
Ultimately the Metaconstitution will have to rise, and perhaps fall, on the basis of public opinion. Unless the public understands its basic premises, the long-term stability of a Metaconstitutional order will be more a matter of luck than of sound design. Civic education must therefore play an important role in the Metaconstitutional society. But such education must be grounded in reality, it must not be filled with pious platitudes and the "civics book" mentality that such education all too often very tediously incorporates today. As noted earlier, a plentiful minority of soreheads can play a very constructive role in guaranteeing that political argument and instruction will remain meaningful in a stable society.
The main thing that people need to understand in order to maintain a Metaconstitutional society is the difference between laws and pseudolaws. As we have seen throughout this book, the rule of law requires democracy, it requires economic markets, it requires freedom of voluntary association, and it requires that government be universal. Although social tolerance is good, therefore, tolerance for any pseudolaws is very undesirable. With the exception of putting down large- scale rebellions there is no legitimate government objective which cannot be achieved by use of the government's purse and pen, or by laws.
Civil disobedience has long been a very controversial technique for opposing laws considered bad. None of the arguments against civil disobedience, however, apply to civil disobedience to pseudolaws as distinguished from laws. No disrespect for law is implied by a widespread refusal to obey pseudolaw. On the contrary! If the legislature in a Metaconstitutional order exceeds its authority and enacts a pseudolaw, the courts should of course strike it down. If the courts abdicate their responsibility to do this, then the body politic, the people, becomes the court of final appeal. A general understanding of the difference between law and pseudolaw, and an unwillingness to obey any pseudolaw, could bolster the Metaconstitutional order and make it as close to indestructible as any political system could ever be.
****************************************
1. Gerth and Mills, p. 126.
2. Ibid., p. 119.