[This is Chapter Fourteen of Murphey’s book Emergent Man.]

 

Chapter 14

 

THE GOVERNMENT OF LIBERTY: ITS SUBSTANCE, FORM AND PROCEDURE

 

 

Its Functions: Legitimate and Illegitimate

 

            It is the view of the philosophy of liberty that government should be the servant of the people, and never their master.  This is a view contrary to that of the anarchist, who says government should not exist at all, and should therefore not even be the servant of the people.  It is also contrary to the view of the authoritarian, who seeks to make government the master of the people, or at least to define the concept of “servant” in a way to make it a master.

            As we have seen throughout this book, the perspective of liberty places primary emphasis upon life itself.  It is not preoccupied with government.  Government is merely one of several sustaining institutions that must exist before man can be free.  It is important in a real and vital sense.  But this importance is to be thought of only in its proper perspective.  While supporting actors are essential to a dramatic production, it is a mistake to become so preoccupied with them that the main action of the play is overlooked.  The main action of the human play is life itself.  It might not be able to go along nearly as well without the support of government, but – just the same – it is what millions of individuals do in the pursuit of their everyday lives that makes up the substance of liberty.  Life and liberty are immensities that in their complexity and richness dwarf government itself.

            Liberty is found in the delight of a boy who has just built a tree house and enjoys sitting among the branches and leaves looking down on the fences and backyards beneath him.  It consists in the sweat of a man who on a hot summer day has just finished helping dig a ditch down a city street and is now sitting with a blow torch applying tar to the joints of the gas main that he and his co-workers will soon lower into place.  Liberty is inseparable from our activity as we run back and forth through the brown grass a short way up the hillside from a mountain stream trying to catch grasshoppers to use as bait for trout fishing.  It is free life itself, and not anything that government does, that constitutes liberty.

            I point to these things so that we may avoid the sterile craniality of abstraction as we review the function of government as seen from the perspective of an advocate of liberty.  When we say that government is to be the servant of men, the guarantor of their right to live under the least coercive circumstances, and is not to seek to lord itself over them, let us know, in the most specific terms, just what we are talking about.  We are not merely throwing around abstractions: we are demanding the predominance of the vast run of life over that which has a justifiable existence only if it seeks effectively to recognize that predominance, and to be of use to it.

            Even though I don’t wish to overemphasize the importance of government, there is a great need for government if we are to enjoy a civilization based on liberty.  The definitive characteristics of liberty don’t just pop into existence.  It isn’t enough, for example, merely to say that coercion should be reduced to a minimum, or that the voluntary activities of men should be allowed to flourish.  There is much that must be done before this voluntarism becomes a reality.  Many of these preconditions could not be accomplished without an organization that encompasses the entire body of men who make up the society and that possesses powers, of either a coercive or an organizing nature, that will enable it to protect the liberty of the people against attack and to extend the meaning of that liberty by providing some of its institutional prerequisites and broadening its opportunities.

            A life based on the voluntary choices of individuals acting separately or in association requires a framework of law, morality, character and intelligence.  In this book I have attempted to spell out many of the preconditions of liberty.  Once the framework is established and continued, the individuals may express themselves with infinite variety.

            Many of the preconditions are non-governmental.  But some require coercive force itself, even though the purpose of the framework is ultimately to reduce coercion.  It is necessary to use coercion to establish the preconditions of a free society.  To the extent this is so, government has an important role.   There can be no doubt that there is actually a need for coercion, since there would be no universal recognition of rights and obligations in the absence of law.  There would be a propensity by a significant number of people not to respect those rights or to perform their obligations in the absence of legal enforcement.  It is likely that in the absence of government there would in many areas be only a very imperfect statement of the principles of conduct that are to guide the individuals involved.  A general custom and morality would not be sufficient to this task, because there would not be a sufficiently specific organization of the function of discovering and enunciating such principles.  Even if such principles were enunciated in the absence of government, many individuals or groups would seek to override them to further their own advantage.  Not everyone could be expected to live according to an enlightened self-interest that would keep in mind the long-run effect of his own conduct.  In all likelihood, without government’s coercive enforcement of principles of conduct, there would be a coercive chaos in which few of the interests that the principles would seek to protect would find any security.

            But while the argument against anarchy is simple in light of the need for government to define and preserve the rights of individuals, it is true that an institution embodying coercive power must constantly offer an extreme potential for abuse.  One of the main concerns of the philosophy of liberty is how the power of government can be so limited and controlled as to offer the least threat to the proper purposes for which it is established.  The philosophy of liberty primarily says: “Minimize the coercive; accentuate the voluntary.”  This can’t be accomplished if government exercises significantly more coercion than is necessary to remove the coercion that would otherwise exist from other sources.  Government may exercise additional coercive power only if doing so may be justified on the ground that the product of its further use will broaden the alternative forms of action available to free men or establish institutional prerequisites to the full enjoyment of those alternatives.  If government goes beyond this, it is in derogation of liberty.  It is then in derogation of its own function, since the only justification for its existence is to strengthen a free society.

            Government has a perpetual tendency to expand beyond its legitimate function and to become the director of human life rather than merely its protector.  There are at least two reasons this is so.  The most obvious, probably best understood by people in general, is that coercive power gives rise to compelling temptations for those who would use that power for their own advancement either materially or in the control of other people.  The second reason should be well understood in the twentieth century in light of much that has taken place during our lifetimes.  It is that government is a convenient vehicle for those who want to manipulate the direction of the human race.  Much of this manipulation is done in the name of the people themselves and may result from the utmost sincerity.  No matter how sincere such a use of government might be, however, and no matter what the forces are that support such a use, its effect is to reduce liberty.  As I have said before, there is a great deal of difference both in principle and in practice between trying to set up a framework for individual decision-making and telling them what they must do.  When some men, perhaps even a majority, use coercive power, through government or otherwise, to make men act in certain ways that are not demanded by the requirements needed for a tolerant coexistence, the coercive power becomes a tool for purpose that are in direct conflict with the principle of individual self-determination.  Therefore, government is a constantly available medium by which those who do not appreciate liberty may seek to accomplish their own objectives.  The greater the ostensible humanitarianism and concern for their fellow man that motivates them, the greater is the danger that this sort of abuse of the power of government may become widespread.

            It becomes apparent that the philosophy of liberty faces a difficult problem.  It not only admits, but asserts, the importance of government.  It also asserts that government is dangerous and needs to be strictly limited to the functions the philosophy of liberty would call upon it to perform.  This means that that philosophy must spell out in detail the appropriate functions of government.  Such a formulation of limiting principles is not easy.

            We have seen the major premise that must be applied to an indefinite number of situations.  Necessarily, in any given book we can’t hope to anticipate all of the vast number of relatively minor circumstances calling for both government action and its limitation.  We must rely upon others, such as legislators and courts, to carry the general philosophy into practice in those countless areas.

 

The Definition, Application and Enforcement of Rights and Obligations Providing a Private Sphere of Personal Inviolability, Private Property and Contract.    

 

            If it were possible to say that the government of a free society has a “main function,” this would be the carving out of a private sphere for the individual in a way that will most advance his ability to direct his own thoughts and energy.

            Government in a free society not only protects the private sphere of the individual; it helps define it.  But it does so, through its law-making powers, with definite substantive ends in view.  These center around the need for guarantees of the inviolability of the person (as from physical attack, false imprisonment, kidnapping, and the like), of his place in a settled community (as against unwarranted attacks on his reputation and credit), of his right to ownership of such property as he acquires through his own creativity and commerce, and of his right to deal with others on a consensual basis.  This brief list is not at all exclusive.  The point is that government has much to do to establish the “atom” of the individual and the broad framework within which the individual may act.  The individual must be given the most meaningful possible “private sphere” in terms of his own self-determination.  Through the definition and enforcement of rights and obligations, the government may make the individual less subject to the conscious attempts of others coercively to control his thoughts and energies, and it may lend its weight to bolstering the dependability of the relationships solemnly entered into by the individual with others.

            These “substantive ends” of free government, carried out through criminal law and the law of contract, torts and property, express the central premise of the philosophy of liberty: minimize the coercive, accentuate the voluntary.  Only a definition of “rights” and “obligations” in a way that pursues these ends may be considered libertarian.  The idea is to arrange human relationships, including the relationship between the individual and the government, so that the individual can act according to his own choices and not be subordinated to others.  Such an end requires considerable mutual adjustment of conflicting interests. It is the function of free government to make these adjustments.

            In defining and protecting private rights, the government must itself exercise coercion to the extent necessary to make the rights effective.  This coercion is no more than a tool for furthering liberty itself.  It is compatible with the liberty of the individual.

            Without this coercion to protect private rights, those rights could not enjoy an effective existence.  To this extent, coercion is the sine qua non of liberty.  Liberty is necessarily at odds with all human forces that would transgress individual rights as defined by the morality and laws that express the philosophy of liberty.  This is not merely an academic conflict: coercive power is used to deter future violations and to compel such positive acts as may be needed to carry out an existing obligation. 

            The problem is not merely that some people will wantonly disregard known rights.  There will be many such wanton violations, but the problem goes deeper than that.  Essentially, rights are seldom well defined independently of the law-making action of government.  It is for government to spell out these rights, proclaiming them.  This is a legislative function.  Government is the law-giver.  It must do this consisting with the philosophy of liberty, limited by ”substantive due process.” 

            Even when the rights and obligations are known, it is difficult to determine how they apply in specific situations; i.e., under differing sets of facts.  Men may in good faith differ about this.  This difference must be resolved for specific situations.  If it isn’t, conflict will perhaps produce its own coercion, disturbing the ordered nature of society founded on liberty and placing the foundation of all rights in jeopardy.  The resolution of such differences is the judicial function, with government as the judge, applying the law.

            Therefore, the central “coercive” function of government found in its enforcement of individual rights consists of something more creative and helpful than what we might all the merely “negative” action against wanton violations.  There is a continuing performance of legislative and judicial functions.  This aids the growth and cohesion of the society and takes an active role in helping individuals conduct their private affairs.  The “negative” aspect of punishing the violation of rights is beneficial and essential, but we must see that there is much more even than that in the legal processes of a free society.  This main function of government involves a number of activities and processes.  Later when we discuss “the Rule of Law,” we will review some of the more important procedural principles that must be followed.   We will see that those procedural requirements are so fundament as virtually to be substantive in nature. 

            But what I would have us realize now is that, no matter how the laws are arrived at, they are only consistent with the philosophy of liberty if they meet the substantive ends we have stated.  It will be of little avail to have meticulous procedure legislatively and judicially, surrounded by all kinds of guarantees of “fairness,” if the law serves other ends than to state rules of conduct that set aside a “private sphere” for the individual and then enforce the voluntarily assumed responsibilities entered upon through contract.

            This is much more than a mere “policing” function.  It is active and seminal.  Those intellectuals who are fond of referring to the Welfare State as “positive government” as distinguished from the “negative government” that seeks only to be a “policeman” altogether fail to understand that in the protection of the person and of private property, and in the enforcement of contracts, government is playing far from a passive function.  This is not to say, of course, that it is really important whether the matter is “positive” or “negative,” since it is what is accomplished that is important.  But it is at least to say that such a criticism of the limited government in a free society is not even founded on a fair analogy, since that government is not “negative.”

 

Government’s Function in Further Extending the Legal and Institutional Bases of Private Action

 

            There is considerable need in some instances for the legal system to go further if there is to be the fullest extension of the alternative forms of private activity.  Certain types of private action cannot be organized effectively without either (1) supporting governmental institutions or (2) the subordination of certain legally established private rights in favor of the type of activity that would be possible only by their subordination.  We should not take the mere definition of the private sphere to be the culmination of the government’s role in providing the legal and institutional bases for important types of voluntary human activity. 

            It isn’t enough in the law of real property, for example, to recognize the rights of ownership, exclusive use and free alienability.  Even the judicial application of these principles in specific cases will not be enough to establish the system of private property on a workable basis.  [Note in 2005: The reader should notice that I was concerned about the system’s being workable.  Strict deduction without a concern for that has always seemed to me insufficient.  This marks a watershed that separates my thinking from that of many libertarians who pride themselves in holding to strict deduction from axioms.]  In a fast-moving civilization where the transfer of property from person to person is common, it is necessary to accommodate the need for written proof of ownership in a way that will enable everyone to determine from a common point of reference who owns a particular piece of land at a given time.  In the United States, we have a system for recording real estate deeds, mortgages, liens, etc.  Those of us who deal on an everyday basis with real estate transactions know the functional importance of either recorded evidence of title or the written registration of title.  The institutional base made possible by the recording statutes and county recording offices makes the system of private rights more workable. This is an example of how in practice law and the organization of government can implement the system of private rights.

            Other examples are easily to be found.  In most states, the office of the Secretary of State registers domestic and foreign corporations.  The law provides for the existence of fictional legal entities that permit individuals to come together in private associations and operate under a name with limited liability.  The laws of each state set out in detail the legal rights, obligations and procedures involved in operating such entities.  This legal recognition extends the law beyond the mere definition of the rights of an individual.  By allowing fictional entities, the law permits a type of contractual relation that wouldn’t otherwise be possible.  The Secretary of State maintains a repository of records involving those entities, and in doing so performs a service that makes the whole system more functional.  People know where they can go to determine whether a given entity enjoys legal existence.  The law of corporations, limited liability companies, partnerships, etc., and the operation of the office of Secretary of State enhance the alternative forms of private human action.

            The two examples mentioned so far have involved an extension of the institutional framework for the system of private rights.  There are also a number of examples of how the system may be extended to allow types of activities that could not be effectively organized unless some of the rights created under the general legal principles were subordinated to permit the activity.

            An excellent illustration is the use of the power of eminent domain to make possible the construction of such things as railroads, airfields, and private toll roads.   Many people might own land along the possible routes of the railroad or highway or in the contiguous area needed for the airstrip.  Many of these owners may not be willing to sell their property rights at the prevailing market price to allow the construction.  Much of the land can ordinarily be obtained by voluntary contract, but it is often true that the project could be blocked by perhaps even one owner’s unwillingness to sell his property.

            Having fully recognized the right to private property, the free society certainly understands the importance of the right of a single owner to own his land and appreciates that it is no small thing to subordinate his right to the interests of the road-builder.  But it is not an intelligent argument in favor of liberty to say that in all instances the recognized right of the owner should prevail and that no legal provision should be made to subordinate that right so as to make such a project possible.  Railroads, highways and air travel are extremely important human activities, and it hardly furthers liberty to say that they are not to be possible.  Liberty is most enhanced by seeking to accommodate the conflicting interests.  The power of eminent domain involves paying a “just compensation” to the owner as determined by the courts.  The overall effect is to displace certain rights, with as great a deference to those rights as practicable, to make possible the existence of a private or public enterprise that otherwise couldn’t come into being.

            The use of coercion for such a purpose involves a “weighing” process by those exercising the legislative function of government to determine whether the activity that is made possible is of sufficient importance as a category of human action as to make it advisable to displace some rights of other types.  Some forms of activity that could not be accomplished without this subordination will not be sufficiently important as a type of human action to warrant the displacement of established rights.  The usual rule in the law of eminent domain is that the use must be a “public use.”  I think it would be consistent with liberty, in line with “accentuating the voluntary,” if “public use” were broadened to include the explicit purpose of broadening the categories of possible conduct.

            We should be careful not to misunderstand what I am saying.  I am not urging government encouragement of one type of activity over another.  What sorts of activities occur should be left entirely to the private individuals composing the society.  Government’s function is only to make possible the full range of human activities.  It is not for it to say whether a railroad, highway or airfield is to be built.  But it is its function to provide the legal mechanism by which these things could be done if they are economically feasible and private individuals want to do them.  For government to fail to perform this function would be for it to fail to extend the alternative forms of human conduct.  It would not be carrying out fully its task of providing the framework for liberty.

            Other examples of making private rights more workable by subordinating other rights are found in our laws on patents, trademarks and copyrights, and in our granting exclusive franchises to public utilities.  In each, the law establishes a legal monopoly which is protected by law.  Other people are enjoined from copying the invention, using the same trade symbol, plagiarizing the written work, and engaging in a competing public utility business in the same locality.  These limitations actually extend liberty.  Few people would spend years writing a book or developing an invention, or invest a great deal of capital for the purpose of meeting a limited demand in a specific locality, if there were not safeguards against activities by others that would destroy the economic value of what they had done.  In limiting the actions of such others, the purpose is to make possible endeavors that would otherwise not be practicable.  In the overall this is not a restriction upon invention, writing or the offering of public utility services.  Rather, it implements them by offering them a chance to be feasible.  If with this legal framework established private persons want to go ahead, they may.  Government itself does not carry out the activity or give it encouragement beyond merely providing the framework for it.

            The point is that it is a proper function of law to establish the legal and institutional framework for extending alternative forms of conduct.  So long as the purpose is to extend private activity and not to supplant private choices by those of government planners, the framework serves the purposes of the philosophy of liberty.

 

Government’s Function in Itself Performing Certain Tasks That Are Themselves Highly Beneficial But That Cannot be Performed by Private Persons    

 

            Abraham Lincoln is quoted as having said it is the function of government to do what the people can’t do for themselves.  Before this can be an adequate principle, important limitations must be noted.  In the oversimplified form Lincoln stated it, it could be made the excuse for much that in total effect would be harmful to liberty.

            When we say that private persons “can’t do it for themselves,” what do we mean?  There are many things that private persons could do and that are not impossible because of institutional or natural limitations, but that aren’t done because they aren’t economically feasible.  Their performance by government would be no more than a substitution of judgment by the governing officials for that of private persons.  The unprofitability would just be made up out of tax revenues taken from the public.  In such a case, there is no justification for government action.  It would merely be extending its power and influence, always dangerous to liberty, and advancing one type of activity over others.  These others are those that would have occurred if the resources had been left with the taxpayer.

            There are, however, types of undertakings that private persons can’t undertake, not because they are unprofitable, but because – even though they are highly beneficial and in fact very economic – they produce benefits that accrue to all members of society rather than to specific persons.  Where the benefits accrue in this general way, such undertakings cannot be financed, in most cases, unless everyone were to be charged to help pay for them.  Needless to say, even though everyone may receive the benefits, they may not all be willing voluntarily to bear the cost.  Government finds it possible to perform these things because through its power to tax it can force participation by all members of the society.

            Flood control is an example.  If a river flows through a highly populated area, it might be important to the entire community – indeed, for the protection of lives and property – to build a dam or install of ditch to control the river’s flow.  This couldn’t be done on a profit-making basis, because it’s likely that some people wouldn’t be willing to pay the entire cost if other people receiving the benefits didn’t participate.

            The need to care for the indigents is of this type.  There could be little dispute about the social importance of assuring that people don’t starve or die for lack of housing.  The benefits from relieving the extremities of poverty don’t accrue only to those helped, but to everyone in general.  A failure here would leave intact a great source of social instability and powerful motives to criminality.  There is in addition the fact that virtually everyone shares in varying degrees a compassionate concern for those in distress.  When they are relieved of their more acute difficulties, most of us feel a certain direct benefit.

            The care of the indigent is largely accomplished through private charity, which takes many forms in the United States.  Doctors perform many medical services at no charge.  Legal aid societies and public defender systems exist in many cities.  The Salvation Army, United Fund, March of Dimes and hundreds of similar organizations raise money to help those in need.  Because private persons are willing voluntarily to share the costs, some of this important social function can be left to private individuals and organizations.  However, the primordial problem remains, which is that we cannot be satisfied until there is assurance that the more extreme needs of the indigent will be met.   Government has a role in filling the gap where private efforts are not able to carry the whole load.  In filling these gaps, the government places the burden on everyone in the society.

            When we have a centrally operated banking system under the Federal Reserve Board, government performs this type of function.  A monetary system is essential to the working of the entire free market.  Liberty could not function in a workable fashion without it.  Its benefits accrue to all.  While I have made clear in my chapter on the monetary system that it would be preferable for the monetary system to be operated entirely by private individuals operating under general laws, if the principles of operation can be formulated satisfactorily, it remains that government has an important function here at least until the substitution can be made.

            Those who review the propriety of such governmental acts should always ask the question of whether they could not better be performed by private persons.  To the extent they can be taken out of the hands of government,  that should be done.  But to the extent they cannot, government has an appropriate function in performing them.  It can hardly be said that the performance of this function is in derogation of liberty.  There is no real threat that the judgment of government will be substituted for that of private individuals in large areas if it is constantly kept in mind that the function is appropriate only where private persons couldn’t undertake it because it wouldn’t be technically possible for them to do it within a free market.  The area of such technical impossibility isn’t broad.  Private individuals acting in cooperation with others through contractual relations can perform most things.  It is for government to stay out of these areas.  But in those few cases where considerable benefits would be received from an activity and the free market does not lend itself technically to carrying it out, the government has an appropriate role.

 

Government in Education

 

            One of the issues now before the U.S. Congress is federal aid to education.  It is presently one of the live issues in the continuing struggle between those who would expand the power of the federal government and those who would keep that power limited.

            What is the place that any government, local or national, properly has in the education of children?  In the United States we have adopted a broad system of governmentally operated public schools.  The private school system has been reduced to only a fraction of what it otherwise would be, because parents who send their children to private schools find it necessary to pay both tuition for their own children and taxes to support the public schools.  This puts a double burden on the parents sending their children to private schools.

            A free society no doubt needs extensive education.  It is questionable whether freedom can be maintained, especially where suffrage has been extended to virtually all adults, unless voters are mostly able intelligently to apply a general philosophy of individual liberty, which we have seen is no simple thing, to the problems of society and government.  (If, on the other hand, the intellectual orthodoxy of the time, as in western civilization today, is generally opposed to the philosophy of liberty, there is a reverse tendency, with much education weakening the possibility of preserving freedom.  But although this is a major obstacle, it necessarily remains the case that a free society can hardly be maintained by an uneducated people.)

            The great social importance of education to a free society has often been advanced as a reason for governmentally operated education.  To the contrary, however, it may be expected that an important bulwark for individual liberty can be found in leaving the child-raising function entirely with the family and with the family’s selection of a private school for the children.  Here, there would be far less homogeneity and a far great greater inculcation of individualized values.  Although a heterogeneous society can have serious problems if there is not a prevailing tolerance, a society in which everyone is very much alike in what they think and do will have a greater tendency to demand overall conformity.  Alexis de Tocqueville many years ago pointed out the deficit of freedom of speech in a democratic society.  We are still not used to thinking of it this way, but it is valid to recognize that a homogeneous, democratic society does not actually entertain effectively a full discussion, especially of those views that are not found within the truisms accepted by the majority.  A society with more multiplicity should, if it develops a general tolerance and philosophy of liberty, offer more on-going assurance that the liberty of the individual will be meaningful. 

            In this age of recurrent totalitarianism, there is yet another reason, there is an additional reason why parents’ inculcating multiple, heterogeneous values is important.  Such a multiplicity should make it far more difficult for any political or ideological force to gain total power.  True, total power may arise out of the the chaos of too much multiplicity, but it is even more likely that it will arise out of a too great sameness.

            If we were to say to all parents “raise your children as you wish, and send them to school if you want to,” I think that even in this day of relative affluence there would be a strong possibility that many parents, less responsible, would not give their children a significant education.  Possibly, a number of parents couldn’t afford to.  Therefore, education will come within the function of government just discussed, where an important public benefit can’t be achieved to the full extent necessary without the compulsory participation of all members of the society through the use of the tax power.

            There is an important factual question, which we will probably not be able to resolve, whether private persons could not themselves maintain the overall system of education through having those who can afford it pay the tuition for their own children and having the tuition of the other children paid by extensive scholarships from money privately donated.  If private persons could perform the entire function, there would be no place for government in education.  If not, however, there is a legitimate governmental function to be performed.

            It isn’t clear, however, that this function should be performed by government’s direct operation of schools.  The government operation of schools, especially if control over what is taught is placed in the central government, as must tend inevitably to be the case if the central government finances the schools, offers extreme dangers.  These dangers are compounded as the society centralizes the power of its government and as coercivist doctrines become widespread.  In a society founced on a general philosophy of liberty, it may very well be true, as in the United States, that proponents of specific ideologies will not consciously manipulate the schools.  Although a public school system may remain “non-political” under those circumstances, nothing could be more devastating and lend itself more to totalitarianism than a politically manipulated public school system.  [Note in 2005: In the years after this was written, I broadened my view to realize that government is hardly the sole source of possible ideological or political indoctrination.  There has throughout my lifetime been an opinion-setting elite that has inculcated its own values and perspectives in direct disregard of those of the majority of the population.  The hegemony of attitudes among teachers and academicians is an essential part of this, but only part.  It is characteristic of libertarian thought (to which Emergent Man belongs) to be preoccupied with government and its abuses, but the events in the United States since the mid-1960s caused me to shift my attention just as much to culture, ideology, myths, vast mental systems, and demographics.]

            There is a workable middle ground between governmental operation of schools and the leaving of education entirely to the parents.  This seems idea to a free society and is found in the use of the power of taxation to raise money from all tax sources to provide an extensive system of scholarships for the children of less well-to-do parents.  This distribution could be based entirely upon need.  All parents could then be permitted to send their children to whatever schools they choose.  The government would not itself operate schools.  The government would probably find it necessary to accredit the private schools so that there would be some assurance that the scholarships would be spent on education.   The accreditation would not involve government nearly so much in determining the content as under the present system of governmentally-operated schools.

            These thoughts amount to fundamental criticisms of the educational structure in the United States today.  They state that there should not be a system of governmentally-operated schools.  A necessary corollary is that we should not have federally financed schools.  Federal financing must necessarily lead to ultimate federal control, since a government that is spending billions of dollars will come to demand a considerable voice in what is taught.  The way would be clear after a few years for extensive political control over the thinking of the entire population.  This control may not occur so long as the political leadership chooses not to exercise it.  But the most fundamental foundations of liberty should not rest on the forbearance of political leaders.  Institutions in a free society should minimize the possible misuse of power.  This can be done through the decentralization and separation of power.

 

National Defense

 

            Even though I am not attempting of exhaustive discussion of the functions of government, but only to set out the guiding principles, national defense is so important that it shouldn’t be left to implication.  This function finds justification in virtually every principle we have expressed.  It is necessary to the protection of the private sphere of the individual, which would become meaningless if foreign enemies could attack the society’s people and property.  And the defense of the country is a matter of general public benefit that couldn’t be conducted by private persons acting independently or on a purely voluntary basis.  All this is so fundamental and so widely accepted that it hardly needs elaboration.

            The real problems arise in the practical application of the principle.  It is appalling how little we are succeeding in the performance of this paramount national function.  Communism, with its avowed aim of world conquest and fanatical hatred of free institutions, has made unbelievable conquests in recent years.  It has taken over what is now the Soviet Union, all of Eastern Europe, Manchuria and China, is eating away most of what remains of the Far East, is making headway in Africa, and threatens a cancerous disintegration of the perpetually unstable regimes of Latin America.  This has mostly been accomplished through internal subversion.  And yet, the United States seems as far as ever from an appropriate response to this type of conquest.  We repeatedly hear our people talking about foreign aid “without strings attached,” as though strings would be an insult to the recipients.  We have recently set up a “Peace Corps” to accomplish unexpressed purposes that have only vaguely been formed in our minds, but that seem to center around the naïve conception that the Communist threat can be overcome by spreading “understanding” of American in other countries.

            Largely because of our own amorality and lack of character, we seem unable to come realistically to grips with the nature of the struggle we face.  We need to recognize that we are at war.  Since war involves horrors that are almost indescribable, it is easier to put our heads in the sand and pretend it is not going on around us.  There can be little doubt, however, that we will ultimately pay the price all appeasers pay.  The eventual price may be total defeat, with the enslavement that entails.  Or within a short time Communism will have become so strong that it will be only through the most fantastic effort that we will be able to so much as contain it. 

            This is not an argument for more tax spending for national defense.  We are mostly misspending the billions of dollars that are presently appropriated for that purpose.  Most foreign aid expenditures are inappropriate; and we are spending great sums maintaining millions of men under military training, on active duty or in the reserves.  Such expenditure should be totally unnecessary.  We should demand that the countries under attack from Communism provide their own men for their own defense to the extent they can.  We should provide them with military equipment, leadership and materials.  To take the offensive in areas already Communist dominated, we could support an international guerrilla-type force with personnel from all free counties.  So far as our own forces are concerned, a relatively small ground army consisting of guerrilla fighters and a mobile force of shock troops equipped with tactical nuclear weapons should be sufficient to serve our strategic purposes.  This is upon the assumption that those purposes do not include worldwide ground warfare against the Soviet Union and the rest of the Communist bloc.

            We should never prepare for such a massive “conventional” war.  Adequate preparation for it would require the continuing conscription of our young men into military service during the years ahead.  Nothing is more destructive of the mentality of liberty than compulsory military service, especially in a society that has already developed widely held views that run counter to the philosophy of liberty.  The strong impression made by active military service upon a person is essentially this: That the person does not really belong to himself, but is subject to total domination by others.  The military seeks both in theory and in practice to engrain in the individual the automatic acceptance of the authority and discipline of others.  Continuous conscription over a period of twenty or thirty years will strongly accelerate our national tendencies away from a free society.

            There is little discussion of our national defense and the issue of continuing conscription.  Senator Robert A. Taft, in the 1952 presidential primary-election campaign, seems to be the last person significantly to oppose “universal military training.”  He campaigned extensively in the South Dakota primary on that issue.  But we have come to accept conscription and the maintenance of vast reserve military forces – and we have done so with virtually no public discussion.

            This is true also of our “space program.”  There may be great military justification for our developing artificial satellites, satellites around the sun and the moon, and our efforts to put men into space.  But these have not been discussed.  There is an important question whether the Polaris submarines, equipped with nuclear-armed missiles, are not themselves an adequate replacement for manned bombers and land-based missiles.  If several submarines so armed could by themselves destroy the Soviet Union and Communist China, what is the reason for multiplying that destructive capability?  Unless scientific developments threaten to nullify the Polaris submarines, it is hard to understand how the multitude of scientific programs, heading off in other directions, relate to our national defense.

            The problem would be different if we had billions of dollars we could squander.  But we are so inadequate in the important areas mentioned above that there is no room to misspend any of our tax revenues.

            Probably the most critical immediate problems facing the liberty of the American people are to be found in the advance of Communism throughout the world.  In hasn’t been out of place to preoccupy ourselves here with domestic issues, because our greatest weakness in our conduct of national defense and foreign affairs stems from our own philosophical inability to understand the needs of liberty, the moral nature of Communism, and to have the character that is necessary if we are to take the firmly anti-Communist position that we must take.  If we were sounder ourselves, we would not have floundered so helplessly in recent years.  More than anything else, our inability to meet the Communist threat is due to our own personal weaknesses.  [Note in 2005: The double standard toward Communism continues in our historical perceptions to this day, causing us to ignore its many atrocities.  This mental imbalance was a central fact guiding U.S. policy in World War II and during the decades of struggle after that.]

           

Contemporary Governmental Programs that are Inappropriate

 

            I have attempted to stress the type of dynamic society the philosophy of liberty would seek to create.  I have stressed the institutional preconditions of such a society, its ethic and some of its religious foundations.  Although the success of a free society depends upon the severe restraint of all coercive functions, and particularly upon limiting governmental power since government is the legal repository of coercive power, it is wise not to become so preoccupied with what liberty opposes that we fail to see that liberty favors these limitations precisely because it wants to release the minds and motive power of millions of individuals.  A society that provides the framework for this expression is one that will encourage the emergence of man, spiritually and in all other ways.

            It is too bad that for the past several decades American “conservatives,” whose central philosophy is the philosophy of liberty, have had to be preoccupied with opposing a never-ending flow of Welfare State proposals.  It is unfortunate because their position should be a radical one that urges a constructive improvement of civilization through the perfection of its institutions.  They will not be able to perform this function so long as their attention is centered on merely preserving what we have accomplished against a general coercivist mentality.

            For this reason, I don’t intend to review at length the many proposals that have been live issues in the United States during recent years.  Nevertheless, a critique of several of them will lend concreteness to the general philosophy stated here.  It will be sufficient to consider the following: federal aid to depressed areas, minimum wages, farm subsidies, federal medical care for the aged, a federal program of Social Security, public housing, federal aid to education, an “easy credit” monetary program and price controls.

            Federal aid to “depressed areas” violates the decentralization of power, taking from the states that they could carry themselves.  It violates the principle of constitutionalism because there is no enumerated power in the U.S. Constitution providing for such aid.  Further, it violates the central principles of the market economy, which is that there must be a continuous adjustment of supply and demand, an adjustment that can come about only if people who are doing badly in one activity or locality make the necessary transition, either through physical movement or by retraining, to meet the greater needs that exist elsewhere.  The use of tax money to aid entire industries and geographical areas contradicts this flow, and encourages the continuation of maladjustments.  None of the appropriate functions of government enumerated here includes such a program.  It isn’t an attempt to do what “the people cannot do for themselves,” at least not in the sense meant by that principle.  The people can, under the existing institutional framework, make a living for themselves.  The mere unprofitability of a given undertaking isn’t an example of such inability.  Nothing technical stands in the way.  The inability arises through a lack of individual adjustment, and this can be remedied by individual effort.

            Minimum wage legislation attempts to set by law a price for labor higher than would be set by free market forces.  It violates the freedom of contract.  Its consequences aren’t to raise wages for all who seek employment, but rather to raise them for some and create unemployment for those whose productivity is less than the wage established.   This is a major cause of that chronic institutional unemployment that has come to exist in the United States during virtually all of the past thirty years.  When government sets a minimum wage, it can’t be argued that it is merely establishing a “framework for the private sphere.”  What government is trying to do is to determine the content of the life-process rather than merely to establish the framework by which that content may be established by private persons in their own dealing.  It is attempting, so to speak, to stir the porridge rather than just to provide the skillet in which the porridge may come to its own boil.

            Federal minimum wage legislation has its “Constitutional” foundation only on grounds expressed by the Supreme Court since that court has substantially given up on protecting freedom of contract and has substantially shifted regulatory power from the states to the federal government. The Freedom of Contract doctrine formerly expressed as part of substantive due process under the Fifth and Fourteenth Amendments to the U.S. Constitution did not previously permit such legislation.  Neither, also, did the Interstate Commerce Clause, so far as most American industry was concerned.  Before the New Deal, the Supreme Court held the actual process of manufacture to be part of local commerce, with only the shipment of the goods among the states considered interstate commerce.  This kept the entire area of manufacture out of the jurisdiction of the federal government.  The same was true with agriculture, horticulture, mining and fishing.

            I have already commented at length on the incompatibility of the federal farm subsidy program with liberty, and upon the economic unworkability of such a program.  The only real solution to the “farm problem” is for government to get out of agriculture.  We again have government trying to determine the outcome of the life-process rather than provide its institutional prerequisites.  With subsidies, government has supported an economic status quo in opposition to the dynamic changes taking place.  This opposition is reactionary in the extreme.  It perpetuates the maladjustments that economic changes always bring in their wake, and makes the transition ultimately much harder.

             Until the “progressive” Supreme Court in Wickard v. Filburn overruled long-established precedents and declared farming a part of interstate commerce if it even remotely affects the flow of goods among the states, farming had been legally considered a part of local commerce, and therefore under the exclusive jurisdiction of the states.  By regulating agriculture, the federal farm subsidy program violates this earlier Constitutional principle, which itself was so important to our system of federalism.

            The present proposal for federal medical care for the aged, regardless of need, can’t be justified under any of the principles I have mentioned.  The power to undertake such a program isn’t enumerated in the Constitution or inferable from the powers that are.  The program directly contradicts the constitutional nature of a limited government.  Even if such a power were enumerated, it would be out of keeping with the philosophy of liberty.   As with most Welfare State proposals, it is an attempt not to set the framework for the private sphere, but to determine the outcome.  From the great flux of human needs, it picks a certain one to satisfy.  By substituting the judgment of government for the judgment of individual persons, it undertakes to satisfy this need in preference to the things the individuals of the society would themselves do with their economic resources in the absence of the taxes that are imposed on them to pay for the program.

            The same is true of the “social security” program, of which the federal program for medical care for the aged would be made a part.  The main criticism of Social Security is that it is in derogation of the liberty of the individual.  As a young man, I am to be taxed for the next forty years to finance pensions for others.  When I reach 65, others who are not yet born will pay taxes to provide a pension for me.  We are all deprived of our right to spend this money ourselves for purposes of our own choosing, including investment in mutual funds or other savings to provide for our own old age.  The choice is arrogated by government.

            To the extent “public housing” is financed by federal tax monies, there is a significant violation of the Constitutional principles underlying our federal system.  The doctrine of enumerated powers is also violated, since again there is no specific power granting the federal government the function of providing public housing and it can’t reasonably be inferred from any one of the enumerated powers or from a combination of them.

            Even when public housing is locally financed, it violates the philosophy of liberty.  It is possible to care for the indigent by welfare payments alone.  Monetary payments can make possible proper nourishment and housing through the purchase of those things by the indigent person himself in the free market.  Public housing and the many other welfare measures merely add to the number of governmental undertakings without adding to the solution of the problem.  By having government operate the housing venture, a public housing program violates the principle that government should not do what the people can do for themselves.  An indigent person can provide housing for himself out of the welfare payments he receives.

            A proliferation of governmental activities all aimed at alleviating the same need is as objectionable as a proliferation of taxes when the needed revenue can be raised through one or a few simple revenue measures.

            To my earlier discussion of federal aid to education, I need only add that it violates the principle of decentralization and is not authorized by the enumerated powers.

            In the chapter on the monetary framework necessary for a workable capitalistic economic system, I expressed my opposition to government’s promoting “easy credit.”  “Easy credit” is merely another name for expanding the medium of exchange, which consists mostly of credit made available through the banking mechanism.  Such an expansion may otherwise be defined as “inflation.”  In the earlier discussion, I mentioned the upsetting effects inflation has on the calculations individuals make as they go about their own activity.  An inflationary policy must necessarily make it more difficult for people to plan their own lives.  Under the philosophy of liberty the central purpose of government is to provide a framework that will facilitate the free self-determination of individuals.  When a government undertaking makes that self-determination more difficult, that purpose is violated.

            The suggestion that government should promote easy credit is also an attack upon the principle that the Federal Reserve Board should be independent.  The independence of the central monetary authority is an absolute minimum if such central management is to be acceptable as even a “temporary” expedient until an “automatic” monetary mechanism can be worked out in detail.  [Note in 2005: This was my hope in 1960.  Since then, nothing has been done to seek such a mechanism.]    

            Price controls are not a “live issue” in the United States as this book is being written.  But they have existed within recent memory.  They are within the arsenal of the Welfare Statist.  It is likely that any prolonged inflation brought about by the very governmental policies I have just opposed will usher in a number of suggestions for price control.  It should be clear that the solution to inflation lies elsewhere.  It lies in opposing manipulation of the monetary system to expand the supply of the medium of exchange.  Price controls aren’t needed to solve inflation.

            Price controls are an excellent example of how government should not act in a free society.  They directly restrain freedom of contract and dictate the content of a multitude of transactions among an indeterminate number of people.  They don’t minimize coercion to provide a framework for voluntary undertakings.  The coercive power of government is greatly enhanced, and the controls are ready instruments for those who would “play God” to impose their will upon others.

            Nor are price controls economically feasible.   They deal only with symptoms.  They don’t reflect even the slightest understanding of the underlying causes they seek to alleviate.  If prices are high because of inflation, the solution lies in a different monetary policy.  If price controls are imposed while an inflationary policy is also followed, the controls won’t long hold back the economic pressure for a rise in prices.  The prices of uncontrolled commodities will rise and there will be extensive “black marketing” as to the items that are subject to the controls.  At the same time, the controls make it impossible for the pricing mechanism to perform its function of adjusting production to changing consumer demand.  A long period of such control will produce serious maladjustments in the direction of production.  The results may be seen in courts of bankruptcy and in frictional unemployment on an extraordinary scale.

            This brief review of several contemporary issues and of why advocates of liberty oppose the programs suggested should help show the relation of such issues to the broader philosophy expressed here.  But this opposition shouldn’t obscure the fundamentally affirmative nature of the market economy, the religion of emergence, and constitutionally limited government.

 

The Preventive, as Distinguished from Remedial, Functions of Government

 

            Many appropriate functions of government are to prevent harmful acts that threaten some legitimate interest or have a close proximity to a violation of recognized rights.  It is useful to think of these as “preventive” functions as distinguished from those that are “remedial.”  There are important principles that apply to preventive functions that don’t necessarily apply to other aspects of government.

            I once had a conversation with a friend who felt that all preventive legislation is immoral as an undue restriction on liberty.  There is some feeling of this type among those who are seriously concerned with limiting governmental powers.  But I think that view is mistaken.

            It is a view that ignores the many legitimate interests that can be harmed by conduct that can’t be effectively eliminated in any other way than by preventive measures.  What if we know that someone is seriously threatening murder?  It can’t be consistent with liberty to allow him to commit it and then to make available to the widow of the murdered man the utterly insufficient remedy of suing the murderer in a civil action.  The criminal punishment of the murderer after the act is also not an adequate remedy.  Preventive measures to stop the murder before it is committed are the only solution that respects the rights that the legal system seeks to define and implement.  Anyone who would hope effectively to promote liberty must support whatever is necessary to breathe real meaning into the rights that the philosophy of liberty promotes.

            My friend’s fear that preventive laws are harmful to liberty at least points to certain important dangers.  When the state’s police power is used to punish those who have engaged in a riot, there is an overt and injurious act to punish that is definable in advance.  But when government acts against “incitement to riot,” it enters a gray area where in many situations it isn’t at all clear what constitutes the “incitement,” and whether the incitement would in fact have had a strong propensity to induce the riot.  Similar difficulties, more or less acute, arise when government tries to prevent fraud in stock market transactions by a preventive requirement that prospectuses be issued and other preconditions met.  The law is subject to severe abuse, too, where sanitary requirements seek to prevent injury to health.  A small example: a law recently forbade barbers to give sticks of chewing gum to children, even though the gum was in the usual wrapper.  When government moves out ahead of the evil it seeks to prevent, there is a possibility of obstructing legitimate freedom.

            The issue that has brought this into the most debate in recent years has involved the prevention of Communist subversion in the United States.  I discussed this issue earlier in connection with the principles dealing with freedom of speech.  I pointed to the importance of the preventive action, while stressing the necessary constraints upon the action.

            We shouldn’t think that the punitive measures taken by government after injurious acts are not themselves to some degree preventive.  It is common to refer to the deterrent effect of capital punishment.  Even though opponents of capital punishment argue that, as compared with life imprisonment, it has not deterrent effects, there seems to be no question but that punitive measures taken after an act are important regulators of future conduct.  But a reference to “preventive legislation,” as such, refers to steps taken before the conduct.

            If we are to limit preventive legislation so that it will not become an excuse for regulating much that might better go unrestrained, we should keep the following in mind:

            (1)  Whether what can be done after the wrong is committed is enough to minimize the conduct as a social evil.

            (2)  Whether it is practicable to make the interests that have been wronged “whole” by awarding damages or other relief.  This has traditionally been important in equity cases, where the question is whether “the remedy at law is plain, speedy and adequate.” 

            (3)  Whether the wrongful conduct does in fact have a strong and proximate causal bearing on the commission of the wrong.

            (4)  The seriousness of the injury that is to be prevented.

            (5)  The importance, as a type of free activity, of the conduct that is to be restrained.

            There is no formula by which these considerations can be balanced to produce a preordained result.  As with much in the philosophy of liberty, an intelligent regard must be given in good faith to the different aspects of the problem to give substance to the widest possible area of human choices.

            In American Constitutional law these considerations have been embodied in the principle that there must be a “clear and present danger” before speech may be restrained.  The same desiderata should be extended to any kind of preventive governmental activity.  The problem isn’t limited to speech.  Restraint upon any part of human freedom must be justified by good reason. 

 

The Rule of Law: The Jurisprudential Principles of a Free Society

 

            The American Bar Association has recently promoted “Law Day U.S.A.”  This has become an important national observance each May 1st.  There is usually much discussion of  “the rule of law,” usually having to do with extending “the rule of law” to international affairs.

            There is an empty ring to much that is said.  The emptiness comes from so few of the speakers seeming to have any real appreciation for what is involved in the “rule of law.”  They don’t know that this term denotes a doctrine of the utmost significance in the history of the philosophy of liberty.  It has a specific content spelling out the qualities that “law” must have if it is to serve effectively but unobtrusively as a framework for the lives of free individuals. 

            A law professor recently spoke at a bar association luncheon, talking about what he called “the rule of law.”  He said it involves two basic ingredients: “majority rule” and “a third-party judge.”  Any governmental decree flowing from these two principles would comport with the rule of law.  I have since talked with several lawyers who attended the luncheon, and have found them not to be particularly critical of the view expressed.

            Although it is true that an independent judiciary applying the general principles of law to specific situations is a necessary ingredient in the traditional concept, so that a third-party judge is indeed part of the concept, it can hardly be said that this together with majority rule comes anywhere close to the historic meaning.

            Rather, the Rule of Law is concerned with the following qualities: (1) The laws must be, wherever at all possible, general in nature, stating abstract principles that may be applied to recurrent situations over the years.  The symbol of justice under this doctrine has long been a blindfolded lady holding a set of scales.  It is no accident that she is blindfolded.  It is not intended that the acts of the legislature be enacted to deal with specific, identifiable individuals.  The purpose is to set up an overall framework to guide the actions of everyone.  Great dangers inhere in allowing law to become dictates to particular people.  So far as the legislator has in mind particular individuals to which the law will apply, those people are subject to complete caprice.  In place of this caprice, the Rule of Law would substitute general, abstract principles to serve as major premises.  The application to particular people would come through the logical process, applied by the courts, that considers their actions to be minor premises leading to a conclusion.  The law itself should be the major premise, consisting of the statement of a rule that is valid no matter who comes under it.

            (2) In keeping with the idea that the legal framework should provide the parameters for individuals’ actions over a span of time without being initiated to affect people known to the legislators, it is a principle of the Rule of Law that the law should operate prospectively, setting the norm for future situations, and not retroactively.  This is especially important where vested rights have been established under the earlier state of the law.  It has long been a principle that there should be no bills of attainder or ex post facto criminal laws or even retroactive civil laws that violate vested rights.

            (3)  For the same reasons, the Rule of Law requires that laws apply “equally” to everyone in the society.  This means the law is not to classify people in “unreasonable” ways; that is, in ways that do not bear a logical relation to the legitimate purposes the law is attempting to serve.  To do otherwise will prevent the law from creating the impartial framework that the philosophy of liberty has in mind.  [Note in 2005: We have come now to live in a time when the perspectives of minorities dominate public discussion – a complete change from the dominant perspective just a half-century ago.  As part of the minority’s perspective, American society was profoundly hypocritical prior to the Civil Rights Movement of the 1950s and ‘60s precisely because this principle of the Rule of Law calling for equal application of the laws was not applied to blacks.  The same perspective would charge all societies that have purported to apply the Rule of Law, such as the Athenians in the Age of Pericles who presided over a slave base, with hypocrisy.  What is being overlooked is that many of the principles that have been enunciated over the centuries have been applied to the polity as the people at the time saw it.  There has at all times been a “universe of discourse” (to use a term from logic) that has defined the sphere of application.  The law-givers in those societies were not insincere; they were formulating principles that they saw applied to those who stood within, and not outside, the polity.  The movement of history within recent centuries has been toward greater inclusiveness, and this has been especially true since the end of World War II and the collapse of European colonialism.  We certainly prefer this (if we can at the same time retain our own identity), but it is destructive of the appreciation we know to earlier peoples to make this movement the basis for a critique that rebukes all that has gone before, no matter how constructive.]

            (4)  It is necessary that the law be both known as to its content and certain as to its application.  Law that is generally not known to the people in the society can’t serve effectually as the framework for human relations.  People are not able to pattern their actions in accordance with it to avoid the coercive consequences that attend its violation.  Further, those subject to it may find their rights unstable.  The same consequences flow from a lack of certainty in either the content or the application of law.  Without being known and certain, the law fails to function as a guideline and assumes the role of a meddlesome fool.

            (5)  I have spoken of the general rules of law as “major premises.”  It is important that these general principles be applied to specific situations that fall within their scope.  This application to particular cases is an active process that calls for weighing facts and considering the rules themselves.  It is imperative that the judicial process be carried out in an impartial and conscientious spirit by men who have no other purposes in mind than to accomplish impartial adjudication.  This application of law to specific situations is the “judicial” function.  If it is carried out by persons who want to act other than judicially, the rules may be warped out of their otherwise understood meaning or may not be applied with certainty.  The chance of misapplying the rules is, of course, always present, even in the best of circumstances.  This is so because of the extensive peculiarity of the human mind and, too, the erratic irrationality that so many men possess.  But the chance of misapplication is greatest where the judges have a competing interest at odds with loyalty to a system of impersonal justice.  This is why it is often said, and rightly so, that there should be a strict separation of the judicial function from the legislative and executive functions.  An independent judiciary is an essential part of the Rule of Law.

            (6)  Something that is implicit in the other principles just expressed is that the rules must be applied with the strictest logic.  It is popular among intellectuals today to quote Oliver Wendell Holmes’ dictum “the life of the law is experience, not logic.”  Holmes’ view is altogether out of keeping with the Rule of Law.  The Rule of Law seeks logic, not the caprice of the judge or administrator, in applying the rules.  It makes no difference to point out, as is fashionable, that many judges and especially quasi-judicial administrative bodies don’t apply the law with logic, but rather as they think best according to their own inclinations.  What is done in practice has nothing to do with what should be done ethically.  The Rule of Law is an ethical doctrine about what we should strive to achieve.

            (7)  Although the principles just stated are so fundamental as to be virtually substantive in content, the Rule of Law will fall short of its purpose of establishing a general framework of rights and obligations by which individuals may pattern their action unless the many substantive considerations found in the philosophy of liberty are taken into consideration.  “Substantive due process” is a vital ingredient.  The substantive rules of liberty are all concerned in formulating the skeletal basis under which individual action may expand outward.  That is also the entire purpose of the Rule of Law.  Rules that serve other purposes involving dictation to individuals, even though the rules meet the criteria of generality, equality, etc., would fail to accomplish what the entire doctrine seeks to accomplish.

            It has been common among many intellectuals in the present-day orthodoxy to ridicule the Rule of Law as “unrealistic.”  In law school, one hears constant reference to “gastronomic jurisprudence,” which refers to judges’ following their own whims.  There is an entire school of “sociological jurisprudence” that says judges “should be” what the proponents approvingly call “social engineers.”  This is the view of the modern orthodoxy.  It says that judges not only do, but should do, considerable modifying of the law while they are applying it.  [Note in 2005: For a more extensive discussion of “modern liberalism’s” jurisprudential theories, see the chapter on that subject in my book Liberalism in Contemporary America, or the article upon which that chapter was based.]  They would take away any stability so far as set “major premises” are concerned.  There would be no rule that could be depended upon in a given case.  The “rule” would be established only at the time of trial and would control only that case, since a later judge would be no more bound by the need to apply a set rule than was the earlier judge.

            In America today we have a mixture of the Rule of Law philosophy with this doctrine of obscurantism and fluctuation.  The doctrine of what we might call “legal caprice, socially justified,” even though it is the predominant view intellectually, has not succeeded in entirely replacing the Rule of Law.  The growth of Administrative Law, where rules are formulated and applied by administrators concerned with matters of policy, has admittedly carried the doctrine of “legal caprice, socially justified” into practice in many areas of significance, but it remains true that much of our law (though perhaps less than half of it in terms of the actual number of cases decided) is still applied by an independent judiciary which for the most part, despite its many flaws and despite the affinity of some of its members for the doctrine of caprice, applies the law of statutory construction and stare decisis.

            It is not simply the prevailing philosophy of “sociological jurisprudence” (which I have named more descriptively in the preceding paragraph) that threatens the Rule of Law in the United States today.  The Welfare State itself creates a challenge of major proportions.  The Welfare State not only deviates from the substantive principles of due process by restricting the freedom of contract and abrogating many rights of property, but also finds that it cannot function “expeditiously” under the limitations that rules must be general, prospective, equal in application, and applied by an independent judiciary.  Since the Welfare State is seeking to “stir the pot” so far as human life is concerned – which is to say that it seeks to determine the outcome of the life process in specific situations in keeping with the choices of the elected leaders of the “majority,” it does not wish to abide by general rules that will apply impersonally without regard to the “social factors” the Welfare State administrator has in mind.  When one is attempting to do more than provide the guidelines and is attempting to make the actual choices for individuals themselves it becomes difficult to make those choices for the individuals without having free rein to look at the specific situation faced by the individual and to then and there decide what should be done.  So far as this perspective is concerned, general rules can only be a hindrance.

            This is not to say that the Welfare State could not limp along under a system of general rules.  But it would be far less “efficient” in accomplishing its own ends if this were tried.  It is important to keep in mind, too, that to the advocate of the Welfare State the liberty that the Rule of Law seeks to preserve is not the principal preoccupation.  The coercivist has very little motivation to give up any administrative “efficiency” in order the accomplish the libertarian purposes of the Rule of Law.  This latter doctrine was to permit individuals to conduct their own lives according to their own choices, while the coercivist would substitute his judgment for theirs.  From this point of view, the Rule of Law does not even constitute a desirable objective.

            Because they have other ends in view than the liberty of the individual and want to use the coercion of the law to cause life to take certain forms that it would not take if men were left free to make their own choices, coercivists very often criticize and even ridicule the Rule of Law as not providing “equality before the law.”  To them, the “reasonable classifications” the law makes in arriving at libertarian rules do not take into account the significant factors that ought to be considered in applying the law.  They ridicule the law of theft, for example, and the libertarian position that the law prohibiting stealing (which applies, among other things, to the stealing of bread) applies as equally to those who are starving as to those who are wealthy.  This has been a very effective criticism of the Rule of Law.  It has a strong logical force for those who do not understand that “equality before the law” does not in the slightest purport to create subjective equalities or the different treatment of men according to their economic standing so as to attempt to overcome the differences in that standing.  It is entirely inconsistent with liberty and with the Rule of Law which is a part of its philosophy to attempt to treat men according to the level of their attainment, their personal merit or any other of their individual characteristics.  As we have said many times, the philosophy of liberty seeks to establish a skeletal framework within which men of all types and characteristics may carry on their lives.  If it is attempted to treat them differently so as to compensate for their differences, and thereby create an equality of outcome, the purposes of the law would need to be shifted so as to have in view the content of the outcome rather than facilitating the life-process itself.  You can either treat people the same and let them come out differently in the end because of their differing circumstances and personal characteristics, or you can treat them differently so as to compensate for their personal differences and create an “equality of outcome.”  The first of these is what the Rule of Law seeks to do.  The second is what the coercivist philosophies, whether they be Welfare Statist or completely Socialist, would strive to accomplish.  Each involves a certain type of equality.  But one is a type consistent with liberty.  The other is not.

            In concluding this discussion of the Rule of Law, we should observe that to a philosophy of liberty it is the observance of all of these principles that constitutes “justice” in the broadest sense.  The principles offer a specific content to the concept of “justice,” which otherwise would be extremely vague.  “Justice” in this definition takes a place in the overall philosophy and is not something separate and apart, unrelated to the whole.

            In Atlas Shrugged, Ayn Rand used “justice” in a narrower sense, but nevertheless used it very powerfully to highlight one of the important attitudes underlying the Rule of Law.  She equated “justice” with “truth” in the judicial process.  “Justice,” she said, “is the recognition of the fact that you cannot fake the character of men as you cannot fake the character of nature, that you must judge all men as conscientiously as you judge inanimate objects, with the same respect for truth….”  The logical application of the general rules to specific cases by the independent judiciary calls for the rational determination of the facts of any given situation by the trier of fact.  This determination of fact should be made with all the coldness and impersonalness that is to be found in any strict concern for truth.  It should not be muddied with sentimentality or prejudice.  Human sympathies should come into the picture only consciously and separately from the making of the factual determinations necessary for applying the rules.  This is because fact is one thing and mercy is something else.  If law is to be merciful toward a killer, for example, there is nothing to be gained by using the attitude of mercy to obscure the factual recognition that the man is in fact a killer.  Rather, the mercy should be applied with a full recognition of what the man is and what he has done.  By making this point explicit, Ayn Rand helped clear away some of the confusion that has crept into the concept of justice by the obscurantist thinking of recent years.

            This narrower definition of justice relates to how rules are applied.  The broader philosophy of justice pertains to be entire subject-matter of the Rule of Law.  Both are fundamental to the effective liberty of the individual.

 

A Written Constitution of Specifically Enumerated Powers

 

            The Rule of Law is essential to liberty.  A written constitution is not, strictly speaking, essential, but is a significant and useful application of the Rule of Law that can be of great service in helping to cause the government itself to act according to law.  So long as government action is limited by well-recognized principles that keep it confined to the distinct legitimate purposes for which the government exists, this “constitutionalism” need not be in written form.  For many centuries the British were able to maintain a general liberty without a written constitution.

            In the United States, however, we have witnessed both the benefits of a written constitution and the unfortunate fact that unless the written constitution is supported by a general appreciation of the Rule of Law it will rapidly become impotent.  So long as the philosophy of liberty generally prevailed and constitutionalism was held in esteem, the American Constitution served as a living legal instrument of great importance.  When I say it was a “living” instrument, I do not mean that it was flexible to accommodate the caprice that Welfare Statists have in mind when they refer to a law as “living.”  I mean that it was “living” as an effective medium for the limitation of government power, in keeping with its spirit and terms.

            Constitutionalism expresses the principle that government must operate under law.  This principle is uttering opposed to the authoritarian view that law is whatever government says it is.  It is true that in a free society government, acting through its legislative body, does in fact promulgate the various specific laws that deal with individuals, so that the processes of government are in fact to a large extent the source of law.  But the entire spirit of the Rule of Law and of Constitutionalism is that the government must itself act under the constitution; i.e., according to the law that is paramount over it, and that even the government itself, and all its officers, must act according to the laws promulgated by the legislative bodies themselves.  Government itself has no immunity from law, and must live by it as fully as must individuals.

            There are, of course, difficulties of interpretation in applying any constitution over a period of many decades or centuries.  New situations will arise that could not have been contemplated by the generation that first formulated the principles stated in the constitution.  The problem of judicial application becomes one of fitting the new “species” into the older generic terms of the constitution.  When in the late eighteenth century the framework of the American Constitution placed within the jurisdiction of the federal government the regulation of “interstate commerce,” the men at the Constitutional Convention could not have anticipated that commerce would be conducted by automobiles, trucks and jet aircraft.  To them, commerce consisted in horse travel and barges along canals.  Despite this change in the content of “interstate commerce,” however, the logical problem of application is not made appreciably more difficult for jurists.  The many new denotations may easily fit into the connotation of the generic term to which the Constitution refers.

            In light of this, it is apparent that the Constitution has a lasting adaptive quality that makes it applicable to new situations as they arise.  The difficulties of interpretation remain very much the same, and are found in the need to determine the original meaning of the constitutional provisions that are interpreted.  The connotation of a term such as “interstate commerce” is not always easily arrived at.

            What is most important is that there is a great difference between honest interpretation, in which the judiciary tries to discover and apply a fixed body of constitutional law, and a hypocritical process of gradual amendment under the guise of interpretation that is stimulated by a philosophy that the Constitution should not be a fixed limit on the power of government.  The latter, while it may at times pass as the product of difficulties in interpreting the Constitution, is actually a very different judicial approach.

            We should realize, as one of the important facts of the contemporary era, that there has been a severe undermining of constitutionalism in the United States since the advent of the New Deal precisely because the prevailing orthodox body of “liberal” thought abhors the limitations the Constitution imposes and explicitly urges that “interpretation” be used to change the substantive content of the Constitution.

            Because of this, we have in effect today no Constitutional limitations upon government power, other than such limitations as an extremely capricious Supreme Court sees fit to recognize.  [Note in 2005: When I wrote this I was unaware of the Carolene Products footnote 4, which already had recast the Constitution by saying that virtually no governmental action will be struck down as unconstitutional that deals with the majority, but that anything that has to do with “discrete, insular minorities” will receive “strict scrutiny.”  This is consistent with what I said in the text, but provides it a structure.]  Lawyers may still plead Constitutional limitations and find them effective in a number of judicial controversies, and may find them effective to obtain a desired ruling, but this is not because the Constitution is any longer airtight in protecting the rights of the individual.  So great has been the erosion of previously recognized Constitutional limitations that only half the dam remains to confine the powers of authoritarian government.  The effectiveness of the half of the dam still remaining depends almost exclusively upon the willingness of our present Supreme Court, at any given time, to give it effect.

            It is hardly necessary to remark that a rebirth of Constitutionalism must be an essential ingredient in any new movement to reinstitute the philosophy of liberty as the prevailing political doctrine in the United States, just as the Rule of Law which the Constitution expresses must become the prevailing jurisprudential philosophy as a part of the new intellectualism that would replace the orthodox “liberalism.”

 

The Separation of Powers

 

            James Madison, in Federalist Paper Number 51, made the famous statement that “if men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.”  He quickly pointed out the obvious fact that men are not angels and that controls on government are necessary, because government inherently reflects human nature.

            If we were to disregard human nature, it would be possible to say that the same person could perform as a legislator, setting down general and prospective laws in full compliance with the Rule of Law, and as a judge, applying those general rules with a strict logic to specific cases in a fully impartial manner, and as an executor of the law, actively prosecuting the specific cases before the court and carrying out the punishment, and the like, attendant upon the law.  And all this could be done, speaking theoretically, by a severe discipline of his mind so as to keep separate one function from the other.

            But while this is theoretically possible, it is unrealistic in the extreme when we come to consider that this person would have to be a human being and subject to what James Madison would have called “human nature.”  He would be a human being dealing in an area of total power over other persons arising out of the combination of powers placed in his hands.  Where a person, or a board of persons, is the definer of the law, its applier to specific cases, and the one who carries out the punishments, or other coercive consequences, there rests in his hands a complete power to use that coercive power to his own ends or according to his own prejudices.  There are no checks upon him other than may be found in his own self-discipline.  And this self-discipline is hardly to be counted upon as reliable where the substantial rights of others are concerne