College American Government
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On coming to Paris for a visit, I said to myself: Here are a million human beings who would all die in a few days if supplies of all sorts did not flow into this great metropolis. It staggers the imagination to try to comprehend the vast multiplicity of objects that must pass through its gates tomorrow, if its inhabitants are to be preserved from the horrors of famine, insurrection, and pillage. And yet all are sleeping peacefully at this moment, without being disturbed for a single instant by the idea of so frightful a prospect. . . . The primary means of control of this process is consumer choice: customers who dislike a company or its product for any reason can simply walk away, and if a great number do the company must then adjust its actions to adapt to them or go out of business. In this era it has become common for companies to be punished by consumers for business practices and political positions that have no effect on the quality of the product, such as when consumers boycotted Nike for allegedly using sweatshop labor, and more recently as large firms have opted to stop advertising on the shows of controversial television hosts.
Centralized Governance The centralized approach to governance involves giving a select group of people authority to make decisions for the whole community and enforce them on disobedient individuals. This can be as simple as a tribal leader whom everyone respects enough to follow (or fears enough not to challenge) or as complex as a modern government with elected officials and a large bureaucracy, or somewhere in-between those extremes, a condominium or homeowners association board. We can see this authoritative power of some over others in David Easton’s definition of politics as “the authoritative allocation of values for society,” and V.O. Key’s definition that politics involves relationships of “dominance and submission, of the governors and the governed.” Humans can choose between centralized and decentralized forms of governance, or more precisely, they can choose among different degrees of centralization along a continuum. And they can choose between allowing some of their collective concerns to be governed through decentralized means with others governed through centralized means. In the United States, for example, religious communities as a group are governed in a decentralized manner (each governing itself, and with some of those having a central authority, such as the Catholic Church, while others are wholly decentralized and governed only at the local level, such as many Mennonite and Amish communities), while foreign relations are governed by a central authority. Where formal government is established, it is the operative arm of the state, meaning it is that set of offices in the state that makes and enforces rules for the people of the state. It is to some extent indistinguishable from the concept of the state itself, and so in the next section we will consider the definition of the state. One note of caution before we proceed! In the American political context, “the state” refers both to individual states, such as Michigan, Ohio, or California, and to the United States as the collective body of the 50 states, plus non-state territories. Do not let yourself get misled by the unusual terminology of the American political system. Humans have a choice about which of these approaches to take, and as Nobel Prize winning economist James Buchanan pointed out, they do not choose based on what type of goals they are trying to achieve, but on which organization structure they think will give them the best chance of achieving their goals. The relevant difference between markets and politics does not lie in the kinds of values/interests that persons pursue, but in the conditions under which they pursue their various interests. Politics is a structure of complex exchange among individuals, a structure within which persons seek to secure collectively their own privately defined objectives that cannot be efficiently secured through simple market exchanges.[i] These “privately defined objectives” could, at one extreme, provide benefits for all. For example, collective self-defense against outsiders, or draining a marsh to make a meadow where everyone can graze their cattle. (Although a collective benefit, each individual has their own private definition of that goal, how much benefit they want and how much they are willing to sacrifice to achieve it.) But at the other extreme they can also be purely private gains, as when a corporation asks the government to pass laws protecting it from competition, allowing it to charge more to consumers. In this case government becomes a tool for achieving purely private gains through public means.[i]
2.2 Defining the StateThe classic definition of the state was proposed in the early 20th century by the German scholar Max Weber:
[A] state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”[i] Notice two elements of this definition:
[T]he state cannot be defined in terms of its ends. . . . [T]here is no task that one could say has always been exclusive and peculiar to . . . the state. . . . Ultimately, one can define the modern state sociologically only in terms of the specific means peculiar to it . . . namely, the use of physical force.[i] Violence is not the only means of governance that states use, but behind every action of the state is the latent threat of violence to force compliance. The role of the government as the operative arm of the state is to be the state’s force, both against outsiders and against its own people, when they do not follow the rules prescribed that government. Government itself is an instrument of violence. In some respects government is the state.
Drawing still from Weber’s definition, we can see that the violence of the state is of a special type: legitimate violence. Anyone can use violence, but the unique trick of the state is to make its violence legitimate in ways that individual violence presumably cannot be. This monopoly on the legitimate use of force means that “private uses of force must be authorized by it, whereas its own employments of force . . . are authorized by itself.”[i] This does not mean all violence by the state is legitimate. If the President of the United States was to order the police to round up and imprison citizens who voted against him, we would say that use of force was illegitimate. But under this theory only the state’s use of force can be legitimate. So how do we distinguish between legitimate state violence and illegitimate state violence? The answer lies in the particular rules that constitute any particular state (its constitution, which may be written or unwritten). If the violence is exercised within the bounds of those rules, it is generally considered legitimate. But no state always confines itself only to legitimate violence. More precisely, the government of the state is made up of individuals, and inevitably some of those individuals, in seeking their political ends, will employ violence outside the bounds of the rules (politics as “who gets what, when, and how,” as well as “dominance and submission”). As we will see later, this is the reason we have created judicial systems, to try to limit agents of the state who would use violence illegitimately by constraining them to follow the rule of law. 2.3 The Problem of Political Authority: Is State Violence Legitimate?But how does the state gain legitimacy for its use of violence when it’s used in ways that no individual could legitimately act, such as punishing people for being free riders, taking their money to use for projects they don’t support, and waging war? As philosopher Michael Huemer notes, our ethical judgements are inconsistent between evaluating actions by individuals versus actions by governments.
Acts that would be considered unjust or morally unacceptable when performed by nongovernmental agents will often be considered perfectly all right, even praiseworthy, when performed by government agents.[i] Huemer calls the special moral status we grant to government the problem of political authority and argues that such legitimacy is an illusion, that nobody can have a right to rule, nor can anybody have an obligation to obey.
In the Anglo-American political tradition, the justification of state legitimacy comes from social contract theory. In this theory the violence of the state is justified by comparing it to the supposedly much greater violence in a state of nature. In his 1651 book Leviathan, British philosopher Thomas Hobbes described this state of nature as a “war of all against all,” where our lives would be, in his famous phrasing, “solitary, poor, nasty, brutish, and short.” Writing in his Second Treatise of Government in 1689, John Locke thought it wouldn’t be so violent, but thought that theft would be so endemic that nobody would ever make efforts to farm or build, because the fruits of their labor would be taken from them. For each of them, the legitimacy of state violence stemmed from the rights of individuals to protect themselves from others, with individuals transferring that right to the state by mutual consent. Locke described this as a right to protect one’s “property, that is, his life, liberty and estate,”[i] a phrase that was transformed in 1776 by Thomas Jefferson, who in the Declaration of Independence justified revolution by referring to an inalienable right to “life, liberty, and the pursuit of happiness.” The justification of state violence as coming from (in Hobbe’s phrase) a “covenant of every man with every man”[ii] to mutually surrender their power of self-defense to a central authority, is not entirely satisfactory. Of course Hobbes and Locke didn’t believe that people literally made an explicit mutual covenant at some specific point in history that marked a transition between the state of nature and civilization. But that concept was used to explain how the power of the state could be justified. And if states only exercised their power to preserve individuals’ rights against being harmed by others, Hobbe’s justification might work. It would be a consistent ethical judgement because the state would only be using the force individuals could just use in self-defense. But of course states do much more than simply protect each of us from harm by others, and all their actions are based on violence as the ultimate means of compliance. In fact states appear to have been created through initial acts of violence that are themselves not justified by individual self-preservation. The Marxist political theorist Leon Trotsky suggested that “Every state is founded on force,” and Max Weber, not a Marxist, agreed.[iii] Economist Mancur Olson suggested that states may have first appeared as a means of banditry. Assuming an anarchic state of nature, just like Hobbes and Locke, he pictured roving bandits robbing one village today then attacking another place tomorrow. Olson argued, just as Locke did, that the effect of this method would be to discourage populations from making investments that could make their society more productive, leaving them poorer and also limiting how much the bandits could get. But if the bandits settled down in one place they could promote productivity in their society by investing in public amenities, preventing violence among the population, and protecting them from other bandits. With these protections the society could become more productive and wealthier, and the now stationary bandits could take more from the population than they could have gotten from their old hit and run methods.[iv] In the words of political scientist Charles Tilley, states can be seen as “quintessential protection rackets with the advantage of legitimacy.”[v] Biologist and anthropologist Jared Diamond makes a similar argument. As governments seem to have developed only after agriculture, he suggests the origins of government may have been in the control of food surpluses, which would allow the controllers to exert their authority over others. Those who submitted would be fed, and the defiant would be denied food. A standing military would be created to guard the grain storehouses, judges would be appointed to determine who was worthy or unworthy to receive food, and a priesthood would create a mystical justification for such authority. As with Olson’s argument, Diamond sees benefits being provided to the people as well, the tradeoff for having a portion of one’s productivity being forcibly confiscated. At best [governments] do good by providing expensive services impossible to contract for on an individual basis. At worst, they function unabashedly as kleptocracies, transferring wealth from commoners to upper classes. These noble and selfish functions are inextricably linked, although some governments emphasize much more of one function than the other. In short, the benefits we get are what the state pays us for our acquiescence to its claim of authority. American political scientist Vincent Ostrom described the state as “a Faustian bargain in which human beings have recourse to instruments of evil to do good.”[i] Remember Yeroen’s sharing of leaves. He provided a public benefit to the chimpanzee community by minimizing conflict over the bounty. But it was also a way for him to assert his dominance and control over the group, and carried an implied threat that non-submission to his authority might mean not getting any leaves.
Jared Diamond is wrong about one thing, though. At their worst states are far worse than kleptocracies; they are killing machines. The violence that makes the state effective is also what makes it dangerous. Violence is power, and most people have heard the words of the English historian Lord Acton that, “Power tends to corrupt, and absolute power corrupts absolutely.” American political scientist Rudolph Rummel has an even gloomier claim: “Power kills; absolute power kills absolutely.”[ii] The historical record is filled with examples. The Mongols “possibly slaughtered around 30 million Persian, Arab, Hindu, Russian, Chinese, European, and other men, women and children.”[iii] In 1099, when European Crusaders took Jerusalem, “40,000 to possibly even over 70,000 men, women, and children were butchered.[iv] The modern world has been no better than the ancient world, because technology amplifies the capabilities of force. In addition to the 34 million people who died in battle in the 20th century, over 150 million civilians were killed by the governments that controlled their territory.[v] The Nazi regime in Germany murdered an estimated 21 million people,[vi] the Soviet Union killed almost 58 million of its citizens,[vii] and Chiang Kai-shek’s Nationalists in China killed 10 million people between 1927 and 1949[viii] before losing the civil war to Mao Zhedong’s Communists, who proceeded to kill as many as 76 million more people.[ix] And in the 1970s the Khmer Rouge government of Cambodia killed nearly 2.5 million people out of a population of only about 7 million — over one-third of the population — in just three years.[x] The very act of defining something as the interest of the state may encourage people to commit violence they would otherwise never consider doing for their own interests. 19th century British historian Thomas Babington Macaulay explains how one of the advisers to the British King William III could recommend that the king slaughter Scottish highlanders who opposed his rule. The most probable conjecture is that he was actuated by [a] zeal for what seemed to him to be the interest of the state. . . . At a temptation directly addressed to our private cupidity or to our private animosity, whatever virtue we have takes the alarm. But virtue itself may contribute to the fall of him who imagines that it is in his power, by violating some general rule of morality, to confer an important benefit on . . . a commonwealth, on mankind.[i] In summary, from a philosophical perspective state legitimacy may be hard to justify. At the least, we must recognize that states’ capacity for violence is not easily constrained to only violence that can reasonably be called legitimate, and the very nature of the state tends towards illegitimate uses of violence. Practical Legitimacy: Recognition by Citizens and by other States Despite the state’s foundation in violence, and despite the questionable legitimacy of state violence, citizens rarely revolt, but tend to go along with the state and treat most of its rules as legitimate. Political scientists call this the “habit of compliance,” because most people do it unthinkingly. That is to say, however difficult it is to morally justify the state, people tend to simply accept the legitimacy of states without giving it much thought. To be sure, their assumption of their own state’s legitimacy depends in part on their perceptions of whether they are getting sufficient benefits in exchange for the price the state extracts from them. In any case, it is rarely a considered philosophical conclusion. To distinguish this from the philosophical question of legitimacy of state violence we can call this practical legitimacy: the state is legitimate to the extent people perceive it as legitimate. Another element of practical legitimacy is whether other states view a state as legitimate. In practice this is done by extending diplomatic relations with the group claiming to be a state. For example in 1948 a group of people in the British controlled area of Palestine declared a new independent state they called Israel. The United States and other influential countries immediately established diplomatic relations with them, and so they became recognized internationally as the legitimate government of a new state (although some states still refuse to recognize them). In contrast, when Catalan (in Spain) and Kurdistan (in Iraq) both declared independence in 2017, no other states established diplomatic relations with them, and so neither gained legitimacy as states. A more humorous example is the Principality of Sealand, a former British anti-aircraft platform in the North Sea that was abandoned after World War II then occupied by former British Army major Paddy Roy Bates, who proclaimed it an independent country. It is sometimes described as a micro-nation, but as no other country has established diplomatic relations with it, Sealand has no status as a legitimate state in international law. (Nevertheless, Sealand has its own flag, coat of arms, and seal, and you can purchase a title of nobility from Sealand.) These two elements of practical legitimacy can come into conflict and create confusion. Subjects of a state may revolt, declaring their government illegitimate, while other states may support the existing government against the rebellion, insisting upon its legitimacy and arguing that its violence against rebels is legitimate. Or citizens may accept the legitimacy of their state although it cannot gain widespread international recognition (as with Palestine). 2.4 Liberal DemocracyAre Humans Fit to Rule Humans?
Even if we accept that state violence can in some cases be legitimate, we must remain aware of the potential for illegitimate uses of state violence. At the extreme end this can result in the death of tens of millions of people, which demonstrates the need for constraints on the power of the states. But even in less abusive states power can be used illegitimately and frequently, so we need to think carefully about when violence is legitimate, and how much violence is legitimate to serve any particular goal. Every time we say “there ought to be a law,” we are implicitly saying that the threat of deadly violence should be brought to bear on people who do something we don’t want them to do. As one Yale Law School Professor wrote, On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce [because] the police go armed to enforce the will of the state, and if you resist, they might kill you. In fact as many Americans have become aware in recent years, deadly force may be used even when someone is not resisting, whether this happens through miscommunication of intentions from citizen to police officer, or from the over-eagerness of the officer, or from actual malice.
More fundamentally we should question whether humans can even be trusted with this kind of authority. If we trust people so little that we feel compelled to make laws constraining their behavior, how can we trust humans with the power to make and enforce those restraints? This concern is doubly worrying if we think both about how power affects people who have it – remember Acton’s statement that “power tends to corrupt” – and about what type of people are attracted to positions where they wield that type of power over others. Science fiction author Frank Herbert noted this danger in his epic Dune series. All governments suffer a recurring problem: Power attracts pathological personalities. . . . it is magnetic to the corruptible. Not only are corrupt people more likely to seek out positions of power, they are also likely to have a competitive advantage in the pursuit of it, as they are more willing to be ruthless. Remember always that government is run by humans, and the power inherent in it is particularly attractive to those who seek gains they can’t get in more peaceful ways. J. R. R. Tolkien, author of The Lord of the Rings, eloquently expressed this concern.
“The most improper job of any man, even saints (who at any rate were at least unwilling to take it on), is bossing other men. Not one in a million is fit for it, and least of all those who seek the opportunity.” We can see in their words the looming shadow of Mancur Olson’s stationary bandits, so how do we restrain them? The 18th century Anglo-Irish political theorist and politician Edmund Burke seems to have doubted it was possible, and that the whole venture of government was irredeemable.
"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!" . . . It was observed, that Men had ungovernable Passions, which made it necessary to guard against the Violence they might offer to each other. They appointed Governors over them for this Reason; but a worse and more perplexing Difficulty arises, how to be defended against the Governors? Quis custodiet ipsos custodes? [Who will guard against the guardians? Liberal Democracy – the Rule of Law as a Means to Control State Violence How to guard against the guardians, indeed. The best solution devised so far – assuming we are to have a state – is liberal democracy, which is grounded in two fundamental concepts: popular sovereignty and the rule of law. Popular sovereignty is that idea that the people themselves, rather than the state, are the sovereign – the sole source of legitimate political authority – and so while the government does the day-to-day job of governing, the people ultimately rule over the government. The word “democracy” means literally the power of the people (from the Greek: demos – the people; arche = power/authority) and so is itself an expression of the concept of popular sovereignty. This power is employed not only though elections of public officials but more fundamentally to define the institutions (rules) that constitute government (a government’s constitution, written or unwritten), including not only what powers the government does have but even more importantly what powers the people have not authorized their government to exercise. These limits on government apply even if a majority of the citizens at any given moment want government to do something illegitimate, meaning even democracy itself is limited in liberal democracy. This limitation even on the people themselves is necessary because a pure democracy is not always protective of the rights of minorities. A study of direct democracy in California found that while voters only approved of one-third of all policy issues put to a vote of the people, they approved more than three-quarters of the ones that restricted civil rights[i] (many of which were later struck down by the courts). This limitation is reflected in the term “liberal,” which does not mean contemporary American left-leaning liberalism but classical liberalism, a common heritage of contemporary American liberals and contemporary American conservatives. Classical liberalism “regards individual autonomy as the cardinal value”[ii] and views all people as politically equal. Consequently, classical liberals distrust arbitrary and discriminatory uses of state power and believe in the rule of law to support and defend individual autonomy and political equality. The rule of law does not refer to citizens obeying the laws passed by government, but to government submission to following legal principles in order to protect individual autonomy. As argued by 18th century French political theorist Frédéric Bastiat; Law is the organization of the collective right to legitimate self-defense; it is the substitution of collective force for individual forces, to do what they have the right to do: to guarantee security of person, liberty, and property rights, to cause justice to reign over all The rule of law therefore stands against the idea of rule at the whim or desires of those entrusted with political authority, because it cannot legitimately be used “to destroy the equal rights” of others.[i] It is reflected in the principle that legislators have no personal authority, but are only authorized to temporarily exercise the authority that the people granted to their office, and that authority is limited only to passing statutes that are compliant with the deeper law of their state’s constitution. It is reflected in the principle that the executive also does not have personal authority, that they also are only temporarily authorized to exercise the power the people granted their office, and that if they abuse or misuse that power in enforcing the statutory law they are acting illegitimately. And it is reflected in the ideal that justice is blind, that it (ideally) does not see color, sex, gender, or other forms of social status, but only the facts of the case, and rules in accordance with the principles of due process and justice rather than on personal feelings about the people who appear before them.
This idea of law as a constraint on government developed in the medieval era as a constraint even on kings (at that time God, rather than the people, was often seen as the ultimate source of law, the true sovereign). But the state – that is, the persons who control its powers – do not like to be constrained, and so states push back against the control of fundamental law. British legal historian Theodore Plucknett described the conflict between the state and the law in vivid religious terms. [T]there soon came the State, as a sort of anti-Christ, to wage war with the idea of law. The issue of this conflict is perhaps still uncertain, but mediaeval thought is to-day fighting hard for the cause of law against the amoral, irresponsible State. We can boil all this down to the brief description given by political scientists Hague and Harrop.
[In a liberal democracy] rulers are chosen through free, fair, and regular elections. Nearly all citizens are entitled to vote and, to permit effective choice, electors can join and form political parties. Further, independent media allow electors to obtain an ‘enlightened understanding’ of the issues before as well as during the campaigns. . . . In short, liberal democracy is about trying to keep authority under control, by making it accountable to both the people and the law. Remember that the state is a “Faustian bargain in which human beings have recourse to instruments of evil to do good.” Liberal democracy is an attempt to capture that good while avoiding evil.
In the next chapter we will look at the structure of the American government as constituted by the set of institutions we call the U.S. Constitution. We will put it in context by explaining what the men at the constitutional convention were reacting against, the problems they were trying to solve, and the conflicts they faced in coming to agreement with each other. And you should read that with the understanding that they were trying to create the type of liberal democracy we have just described. What to Take Away from this Chapter
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