Topic: Government
More Separation of Powers! We did not separate powers properly. We did not go far enough. We separated the 3 functions, legislative, executive and judicial. But we have only one congress, one president and one court system. These still make up one government, which is a monopoly.by Peter Namtvedt
(Libertarian)
Tuesday, November 6, 2007
What mistake did James Madison, Thomas Jefferson and the other Founders make? Their biggest mistake must have been that they believed that a geographic area needed one and only one way of ordering, one central power.
A structure for liberty was encoded in the U.S. Constitution and many essential components needed to maintain freedom and rights. However, if you analyze the American system of government you would find flaws in it which lead to a form of government that becomes a monopoly on the use of force. This would greatly reduce our liberties instead of securing them. The original system would not be destroyed, but would have its basic principles extended to their logical conclusion, which is almost as bad. This development is not inevitable and once started, can be corrected.
The main source on which this article is based proposes a solution to this and a way to correct the trend. Randy E. Barnett, Law Professor at Georgetown University, in his book The Structure of Liberty: Justice and the Rule of Law presents an excellent case for an elegant, small set of rules or rights and a poly-centric ordering of power in our society. The book begins with a delineation of the difference between liberty and license.
Liberty is not a free-for-all, an orgy of acquisition and consumption without regard for others.
Liberty has a structure provided by the Liberal conception of Justice and the rule of law. True liberty does not mean being able to do whatever you please in total disregard of either your long-term self-interest or the interests of others. It is not a quest for pleasure at any cost. Barnett does not go far beyond this in fleshing out anything you would describe as a full-blown theory of morality, but asserts it is not purely consequentialist or utilitarian, bur rather building on the principles of Natural Rights in the footsteps of John Locke.
Barnett uses the word "structure" here for an interesting reason. He saw an analogy between the order of a free society (wherein people could be quite free to do what they need to do without harming others) and the structure of an office building. Without the structure you could not pack so many people into a square block or enable them to move to many levels and places within it.
Yet the structure necessarily imposes limits to your movement in order to give you this freedom of movement and including so many people. So also a good set of rules or principles that would protect your liberties also have constraints and limits, in order that everyone can simultaneously enjoy the same degree of freedom. Against that background he constructs a careful argument leading to a set of principles that could form such a structure.
As a foundation for his argument, he carefully describes the problems of knowledge and the problems of power and interest (partiality) that are entailed. For the purposes of this article, the immensely interesting case that Barnett makes for a decentralized order is too lengthy to describe here in a way that it deserves.
The context is our use of scarce resources that we have at hand. We all have our own private and local knowledge, to which no one else is privy. This knowledge is conceived to include plans, goals, purposes as well as facts. We as individuals are in the best position to apply this knowledge to our use of these resources.
No centralized authority can access this knowledge. Individual persons must be presumred to have the liberty to make all decisions about the use of their resources. But this liberty must have a structure. A summary of the resulting structure of liberty is presented:
"(1) The right of several property specifies a right to acquire, possess, use, and dispose of scarce physical resources including their own bodies. Resources may be used in any way that does not physically interfere with other persons' use and enjoyment of their resources. While most property rights are freely alienable, the right to one's person is inalienable.
"(2) The right of first possession specifies that property rights to unowned resources are acquired by being the first to establish control over them and to stake their claim
"(3) The right of freedom of contract specifies that a rightholder's consent is both necessary (freedom from contract) and sufficient (freedom to contract) to transfer alienable property rights both during one's life and, by using a "will," upon one's death. A manifestation of assent is ordinarily necessary unless one party somehow has access to the other's subjective intent.
"(4) Violating these rights by force or fraud is unjust.
"(5) The right of restitution requires that one who violates the rights that define justice must compensate the victim of the rights violation for the harm caused by the injustice, and such compensation may be collected by force, if necessary .The principle of strict proportionality limits the amount of restitution to that which is necessary to fully compensate, but not overcompensate, the victim.
"(6) The right of self-defense permits the use of force against those who threaten to violate the rights of another. Normal self-defense is permissible when the commission of a rights violation is imminent. Extended self-defense is permissible when a person has communicated, by prior rights violations or some other prior conduct proven to a high degree of certainty, a threat to violate rights in the future. Self-defense should be proportionate to the risk posed by the threat."
(Barnett, p 214)
From this base, Barnett moves toward a conception of a unique ordering of society. This social order requires the Liberal conception of justice and the rule of law that structures the Liberty for which many of us strive. He deals with crime, punishment, restitution, the problem of the abuse of power. We must say goodbye to the old order.
The tendency of a societal order based on the "single power principle" is to aggrandize more power than originally delegated by the people, and to use punitive means to exercise that power in ways that no individual citizen is ever permitted.
The abuse of power by monopolistic government grows and minimizes the legitimate work of protecting Liberty, to being an unstoppable near-tyranny. We must end the monopoly and introduce choice!
A Polycentric Constitutional Order
Barnett's answer to this is to introduce a non-monopolistic structure for government. Taking the concepts of the separation of powers and checks and balances to the next level, he arrives at what he calls a "Polycentric Constitutional Order." Barnett's exposition of the weakness of the existing concepts focuses on the use that citizens find for the use of government power.
We are divided, and that is OK. A large part of the voting population support one special interest cause or another, which they advocate with personal contacts, public communications, political action groups and campaign contributions.
Politicians pick up the issues. Deals are made. Well-intentioned politicians go from good to not so good. At election time politicians are vulnerable to financial pressures and other forms of persuasion, which often lead them to tackle problems identified by their constituents. Government power often has to be increased to deal with these new problems. Government leaders sometimes precipitate crises, in response to which new powers must be delegated to the government.
The best description of the flaw in the American application of the separation of powers and the checks and balances is perhaps that posted in an article on the Internet by Jonathan Wilde at Highclearing.com, a step beyond Barnett. He found in his study of the problem that the branches of government do not effectively constrain each other based on protection of their own domains.
One branch may be permitted to increase its power inappropriately when no other branch is threatened or diminished in power. It may not only be permitted, but encouraged to do so (see the history of "log-rolling" and "back-scratching," and the diverse Supreme Court decisions deferring to Congress rather than to the People). Restrictions on the Liberty of the People would then result, with only the weak remedy of periodic elections, which affect the court system ever so indirectly.
A polycentric ordering requires the constitutional prohibition of all monopolies and confiscations, including all services now performed by government. There would then be multiple adjudication or judge agencies, multiple law enforcement agencies, etc. And membership would not be mandatory. The powers of the agencies we subscribe to for maintaining a safe society (police), adjudication of disputes (courts) and protection from massive attacks (military) would be spread among several agencies. The powers would be separated to a much higher degree. And since we can choose among them, and change our choices, collusion among agencies against us would be extremely unlikely.
Open competition would lead to provision of their services at the lowest cost and highest quality. Payment of fees for their services would be required. Even those who have no resources with which to pay such fees, must be permitted to sell a portion of the court award they might win to another party who is willing to press their case (ever heard of contingency fees?). When this is accomplished, an ordering of society would exist where the government no longer holds a monopoly on the use of force, a kind of ordered anarchy.
The constitution can still be corrected. A few components of our constitution can be strengthened. Aside from removing some parts and correcting some contradictions, the essence would be to create a totally new way to enable it to separate the powers. End the monopoly in the functions of policing, adjudication and defense. This polycentric social order would then be a natural extension of the constitution that was begun in 1787, and would restore the liberty we have sought in this country from the beginning. This kind of social ordering would be minimal and would be beautiful.
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2007 Peter Namtvedt, all rights reserved.
Published: Tuesday, November 6, 2007
Last modified: Tuesday, November 6, 2007
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Posted By: Walt Thiessen
Date: 2007-11-07 05:04:35
Very interesting article, Peter. I have long been an admirer of Professor Barnett, dating back to his 1977 article, "Restitution: A New Paradigm of Criminal Justice."
However, I think there is a large hole in the theory as you have presented it. Separation of powers is intended to provide so-called "checks and balances" between the three branches of government toward the end of discouraging and preventing any one branch from appropriation of powers unassigned to it by the Constitution. While it has clearly failed to accomplish its goal, it is only fair to apply the same standards of judgment to the Barnett proposal.
I can see where a system of competing courts and law-enforcers would help provide additional checks. But how do you apply the same principle to the legislature? Shall we have multiple legislatures creating their own versions of the law? I don't see how to make that work in any practical sense. This is a vitally important point, as noted by the famous cliche, "No one's liberty is safe while the legislature is in session."
Also, where in this system is there a personal price to pay for choosing to usurp power as an official? This is the greatest flaw of both the current system and Professor Barnett's system. Clearly the argument that it is the voters who provide the deterrent doesn't work out in reality. The power hungry rarely pay for their corruption via law enforcement either; much more often, they are enriched by it (although they undoubtedly pay a personal price where their spirit or soul is concerned), and while competing court and enforcement agencies would help to mitigate the problem to some extent, an ambitious and power-hungry individual could render a lot of damage to the rights of others until other enforcement agencies and courts crack down on the usurper, even perhaps while they themselves engage in their own usurpations. This soon becomes "my gang of thugs is bigger and stronger than your gang of thugs." I don't claim to have a better solution. I am merely pointing out that the problem is not yet resolved. Clearly Professor Barnett's proposal creates significant improvements, but we must also point out that it does not of itself present the entire final solution.
Posted By: Walt Thiessen
Date: 2007-11-07 05:36:22
One other point. Your first sentence notes Jefferson and Madison as being advocates of a central government. Historically speaking, it was Madison and not Jefferson who helped frame and defend the Constitution as a replacement for the Articles of Confederation. Jefferson was suspicious of the new plan. It was concocted while he was acting as ambassador to France, and upon his return in 1789 he was dismayed at how conservative the country had become.
Albert Jay Nock, in his 1926 book Mr. Jefferson, wrote of Jefferson's re-integration into public life in America as a member of Washington's first cabinet, "It began now to be manifest, as Madison said later, who was to govern the country; that is to say, in behalf of what economic interests the development of American constitutional government was to be directed.
"Mr. Jefferson was slow to apprehend all this. He had hitherto regarded the Constitution as a purely political document, and having that view, he had spoken both for it and against it. He had criticized it severely because it contained no Bill of Rights and did not provide against indefinite tenure of office. With these omissions rectified by amendment, however, he seemed disposed to be satisfied with it. Its economic character and implications apparently escaped him; and now that for the first time he began, very slowly and imperfectly, to get a sense of it as an economic document of the first order, he began also to perceive that the distinction between Federalist and Anti-Federalist, which he had disparaged in his letter to Hopkinson, was likely to mean something after all....
"He set out on the first of March, 1790, for New York, the temporary capital, where he found himself a cat in a strange garret. Washington and his entourage greeted him cordially and the 'circle of principal citizens' welcomed him as a distinguished and agreeable man.... Yet if they had any suspicions of his political sentiements and tendencies, they put them in abeyance; his attitude toward the French Revolution had shown that he was amenable to reason....
"At any rate, everything should be made easy for him. 'The courtesies of dinner-parties given me as a stranger newly arrived among them, placed me at once in their familiar society.' But every hour thus spent increased his bewilderment. Everyone talked politics, and everyone assiduously talked up a strong government for the United States, with all its costly trappings and trimming of pomp and ceremony. This was a great letdown from France, which he had just left 'in the first year of her revolution, in the fervour of national rights and zeal for reformation. My conscientious devotion to these rights could not be heightened, but it had been aroused and excited by daily exercise.' No one in New York was even thinking of natural rights, let alone speaking of them."
Clearly, this is not the tale of a strong advocate of central government.
Always good to look at the circumstances and personas that formed our unique republic. But pointing out perceived flaws in our constitution while suggesting correction seems moot when legislation and regulation are routinely enacted and enforced as though the document didn't exist.
Posted By: Peter Namtvedt
Date: 2007-11-08 11:45:06
The American founders created one monolithic government. (Jefferson did not participate directly in drafting the constitution, and he was among the strongest opponents of a strong central government, but he did participate in creating it.) Against that thinking, Barnett proposed Rights Maintenance Organizations (RMOs), where you could choose which one's services you desired. He also allowed that the body of laws might consist largely of common law or precedents.
Posted By: Walt Thiessen
Date: 2007-11-10 04:17:30
The problem with relying on common law, of course, is that it is uneven in the way it addresses human rights and is not often there at all for many issues. Also, I am suspicious of depending upon precedents, as this amounts to judicial legislation. Our country's historical experience with judicial legislation is that it is more often counter-productive than productive. It might help if judicial power is divided the way Barnett suggests, but it strikes me as being no sure thing.
This raises a challenge that you might want to address, Peter: how to limit legislative power. That's really what Madison was trying to do in the Federalist papers when he defended the separation of powers concept. His belief was that legislative power under the Articles of Confederation was too great and needed to be checked. He wrote in the Federalist #48:
"...In a representative republic where the executive magistracy is carefully limited, both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions."
He was perhaps naive to believe that separation of powers would effectively nullify legislative overreach and totally underestimated the degree to which the executive branch in particular would grow in power under the Constitution. Nevertheless, just as Barnett believes he has proposed something that would increase restrictions against overlegislation, so too Madison believed that the Constitution did the same thing. Since neither truly succeeds in this regard, that's why I suggest that you, Peter might give some consideration as to how the problem might be addressed more plainly.
Posted By: Peter Namtvedt
Date: 2007-11-10 15:01:59
Walt,
Thank you for your thoughtful comments.
I should have been more clear about Madison and Jefferson. I did not mean that I feel the founders all were advocating a strong central government, but rather that they created a government based on the single-power principle. Monopoly is not only an evil in the economic sphere, but in almost any sphere of life, including politics.
Neither the statist or single-power system nor the polycentric "system" is perfect. A process of evolution (a la Hayek) might improve it over a long period of time.
I was perhaps hasty in my deferral to common law or precedents, for a multiplicity of sources of law would still be at work. In addition to the discovery of laws, by persons chosen to decide cases, particularly influential persons might propose new or modified rules of conduct, an entire membership in a defense and adjudication agency might determine new or changed laws by vote, etc. Laws may arise in any of several ways.
If over-legislation should occur, or if a minority of members in an agency objected to a law that was adopted, in principle they would be free to quit and pay the fees necessary to join a different agency. Agencies that proved dysfunctional in their rule-making or application of rules might lose members and thus be encouraged to behave more like other agencies.
Peter
PS I over-simplified in giving Barnett sole credit for this line of reasoning. He might agree that the heavy lifting was perhaps done by others before him, and he was gathering and arranging his own combination of ideas. I have found Bruce Benson's "The Enterprise of Law, Justice without the state" particularly enlightening. There are additional contributors such as the late Lon L. Fuller, Michael Polyani, Leonard Popisil, David D. Friedman, Robert Nozick, Linda and Morris Tannehill. For a short exposition of this "school" of thinking, see the Internet article "The Jurisprudence of Polycentric Law" by Tom W. Bell at http://www.tomwbell.com/writings/JurisPoly.htm
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2007 Peter Namtvedt, all rights reserved.