I recently had an email conversation with a woman from Connecticut who contacted me after reading Dan Barry’s article about Croydon in the New York Times.
The first thing to say about that conversation is that, once she read some of my writing, she understood the degree to which the Times article had misrepresented both me and the positions I was taking. That made her much more open to having a serious conversation about issues (‘What should we do about education?’) rather than about personalities (‘Why are you such a horrible person?’).
So that was a small victory. One down, a few million to go.
But before continuing to discuss specific policies, I asked her to answer two questions:
What is the purpose of government?
From where does government derive its just powers?
I like to ask these questions because it’s been my experience that people who disagree on the answers, but don’t know that they disagree, have very little chance of making any kind of progress in a conversation, as they’ll just be talking past each other all the time.
To answer the first question, she quoted the Constitution, saying that the purpose of government was to ‘promote the general welfare. To answer the second, she said that government ‘derives its power from the consent of the governed — as expressed through democratic elections of delegates to represent them.’
I think a lot of people would say something similar. But what these people are demonstrating is the effectiveness of the bait-and-switch implemented by the Constitution.
That is, the Declaration of Independence promised something: A government whose purpose is to protect rights and which derives its just powers to act from the consent of the governed.
(When you mention the Declaration, some will reflexively say that it’s ‘not a legal document.’ But if it’s not, we’re still part of the UK. So take that argument for what it’s worth.)
The Constitution, on the other hand, delivered something nearly the opposite of this promise: A government whose purpose is to eliminate rights and which derives its powers by depriving people of the need to obtain their consent.
What do I mean by that? Well, let’s start with the second idea, that people can ‘express consent’ by voting for representatives.
The framers themselves understood that consent is not the same as majority rule. In Article V of the Constitution, they stated that the Constitution cannot be amended to deprive any state of equal suffrage in the Senate without its consent.
A vote of 49-1 wouldn’t be enough to make that change. And that’s what consent is. The power to say no, even if everyone else is saying yes. The existence of this provision makes it impossible to argue that they thought of majority rule as a form of consent.
On the contrary, what voting does — whether that’s voting directly on issues or indirectly for representatives — is to allow one group to deprive another group of the need to obtain its consent.
How large a group? If everyone is voting, just under half. (That is, 51 percent can force something on the remaining 49 percent.)
If not everyone is voting, potentially much more than half. (For example, 51 percent of the 20 percent who bother to vote on an issue can force something on the other 90 percent.)
When 49 percent, or 90 percent, of the people can be forced to go along with something they abhor, that’s a parody of consent.
And what about the ‘general welfare’?
A government that claims the power to promote the ‘general welfare’ is necessarily a government that denies the existence of rights.
I’m assuming here that by ‘promoting the general welfare,’ no one is talking about just ‘leaving everyone the hell alone’ or possibly ‘making sure people leave each other the hell alone.’
(That would be consistent with the idea of rights, which always — like consent — involve the ability to say no when everyone else is saying yes. Or as Justice Brandeis put it: ‘The right to be left alone the most comprehensive of rights and the right most valued by civilized men.’)
Rather, they are always talking about using some form of voting to allow some group of people to decide what is best for everyone else.
This is why people want to promote the ‘general welfare’ when it aligns with their prejudices (i.e., when they’re in the first group), but want to exercise their ‘rights’ when it doesn’t (i.e., when they’re in the second group).
So everything about ‘general welfare’ eventually comes down to voting. Imposing the will of the majority without respecting the rights of the minority. In other words, might makes right.
The ideas of ‘general welfare’ and ‘rights’ are as incompatible as the ideas of ‘immovable object’ and ‘irresistible force,’ They can’t co-exist in the same logical framework. The existence of one precludes the existence of the other.
Now, you can include both of these concepts in your legal framework, if you don’t feel like you need to be able to consistently deduce consequences from premises. And by ‘consistently,’ I mean that any two people starting from the same premises should have to end up with the same conclusions.
That’s what it means to have ‘the rule of law’ — the answers to legal questions are in the law. If different people can start from the same premises and arrive at different conclusions, then the answers aren’t in the law. They’re in the people reading the law. Which is what it means to have ‘the rule of man,’ as opposed to ‘the rule of law.’
Another way to say all this is that you can promote the general welfare, so long as no rights are violated; or you can have rights, so long as they don’t conflict with the general welfare. But you have to choose one of those.
In the first case, ‘general welfare’ doesn’t really mean anything because respecting rights will prevent you from taking any action that people aren’t already taking on their own. And in the second case, ‘rights’ don’t really mean anything because they can’t provide any check on the will of the majority.
I mean, seriously, even Rachel Maddow understands this: ‘The thing about rights is that they’re not actually supposed to be voted on. That’s why they’re called rights.’
Now, I’ve been saying that we must choose between general welfare and rights. But that’s a slight overstatement.
There’s no law of nature that says that we must have the rule of law, as opposed to the rule of man. But we like to act as if that’s what we’re doing. So maybe we should actually do it.
However, when you introduce contradictory premises — like ’general welfare’ and ‘rights’ — into a system, what happens is that any judge, or any bureaucrat, or any electorate, can decide first what outcome is desired and then decide second which premise to use to justify it.
This means you can justify any result in any situation. From premises P and Not-P, you can derive both conclusions C and Not-C, regardless of what P and C happen to be. The premises don’t constrain you at all. If that’s what we want to do, it would be simpler to just give up the pretense of logic and admit that our fundamental legal principle is might makes right.
To bring this back to Croydon: Is taxing some people to provide charity (in the form of things like sports and extra-curricular activities) to the children of other people a matter of general welfare? Or is it a violation of property rights?
If you start with consistent premises — that rights take precedence over general welfare or vice versa — that forces a conclusion, and everyone must reach the same conclusion.
But if you first vote on a conclusion, then you’re free to select the premises that license it and ignore the ones that prohibit it. As the Red Queen might say: Verdict first, rationalization after!
Note that it would be more intellectually honest, if less rhetorically seductive, to just say ‘the will of the majority’ instead of ‘the general welfare’ since that’s what everyone actually means by it.
That wouldn’t eliminate the contradiction, but it would support fewer illusions about what is going on — which is, as Tommy Shelby put it, deliberately making things better for some people by deliberately making them worse for other people.
In the end, here is how I characterized the difference between our approaches.
I think it’s a good idea to help people who need help, and if other people aren’t as enlightened as me on that point, I should convince them to help, in whatever ways they think are best, and to whatever extent they think they can afford, by using logic and rhetoric to obtain their consent.
You think it’s a good idea to help people who need help, and if other people aren’t as enlightened as you on that point, you should coerce them to help, in whatever ways are consistent with your conception of ‘the general welfare,’ and to the extent that you think they can afford, by using ‘democracy’ to eliminate the need to obtain their consent.
I leave it as an exercise for the reader to consider those two characterizations — which we might call ‘Declarationist’ and ‘Constitutionalist’ — and decide which camp you’re in.
When deciding, it would be helpful to ask yourself: Are there any things that you value that you would not be willing to put up for a vote, even if that would be in service of the ‘general welfare’? (Like your ability to have kids? Or to defend them?)
If so, then you’ve got your answer right there, haven’t you?
