Ridgway K. Foley, Jr., is a partner in the firm of Souther, Spaulding, Kinsey, Williamson & Schwabe and practices law in Portland, Oregon.
Man persists in pursuit of utopian dreams. It seems second nature to search for the ideal solution to existing problems. Both self-improvement and societal change represent viable objectives and merit more than a sneer.
Nevertheless, enthusiasm for perfection or a final, conclusive solution must be tempered with an appreciation of the real nature of man. Man, a finite creature, lacks the quality of perfectibility; he is capable of improvement; he is not perfectible. Since human institutions merely reflect the nature of the men who form and operate them, one cannot reasonably expect perfection from society any more than one can anticipate it from individual man.
The statist errs in his consummate misapprehension of man’s inherent nature. Indeed, his view appears ambivalent. The social engineering of the statist necessarily must be premised upon the assumption that man is inherently good and capable of creating Heaven on earth, yet the identical theorist often disdains the masses as mere sheep to be led, as mass voters incapable of knowing their own minds. Thus, he asserts that man may be perfected by the social engineer, the one who possesses the key to the door of ultimate understanding, notwithstanding the contrary contention that the mass man is incapable of self-perfection! On the other hand, the voluntarist who believes in the freedom philosophy’ may likewise be snared by a related delusion. At the foundation, the exponent of freedom may comprehend man’s finiteness. At the same time, he may continue a relentless quest for a positive, conclusive form of government which will necessarily secure the fruits of freedom to the governed.2 I conclude against the existence of a perfect form of the state which will positively protect the individual from excesses of power. This essay explores this myth which may delude both the freedom exponent and the statist.
The Search for Sovereignty to Best Assure Individual Freedom
Sovereignty represents the threshold inquiry. Where does, or should, sovereignty reside to best assure individual freedom? Sovereignty may be defined as the supreme power in a body politic.3 Cursory reflection reveals that ultimate power of organized force must have a residence. In a milieu of anarchy or civil chaos, sovereignty constantly shifts, resting with the most currently powerful individual or clique. In a society controlled by organized government, sovereignty (the ultimate government power) must dwell in some individual or group ultimately controlling the coercive force of the state. That ruling force may be called a political party, a politburo, a king, a legislature, a privy council, or by any number of other names. Whatever its denomination, it is the ultimate repository of organized force in society.
The libertarian fears organized coercion; he recognizes that, despite good intentions, the monopoly of force provides fertile ground for misuse of power to the detriment of individual freedom. Chief Justice Roger Taney summed up the problem succinctly over a century ago:
It is said that this power in the President is dangerous to liberty and may be abused. All power may be abused if placed in unworthy hands.4
Thus, the essential libertarian concern considers limitations on the use of state power wherever sovereignty resides, since exertion of the law beyond its proper boundaries necessarily curtails liberty.5
Institutional Barriers to the Misuse of Power
To solve this concern, the libertarian searches for the location of sovereignty in the society in which he lives. Having determined where sovereignty abides, he often devotes his efforts to the erection of barriers designed to limit the sovereign and, hopefully, to inhibit the misuse of power.
Consider the American scene. The Founding Fathers greatly agonized over limitations on government, having lately removed the young states from the grip of royal and parliamentary despotism. They constructed intricate governmental institutions, separating and dividing power, checking and balancing the use of coercive force. Thus, for example, the House of Representatives wields the power of the purse; the Senate advises upon, and consents to, various executive appointments; the two houses of Congress must concur in the passage of legislation; the President proposes legislative acts, and executes them after passage; the Supreme Court may declare an act of Congress unconstitutional (beyond its power); lifetime appointments are made to the Supreme Court, with good behavior, without reduction in salary, by the Chief Executive, upon the advice and consent of the Senate; election to legislative and executive office occurs in staggered terms of 2, 4, or 6 years. In addition, power is further fragmented between the national government and the several states (division of power) and most state governments contain, on their own level, additional checks and balances.6
Fragmented Power
The American system posits the premise that diffused power poses less danger to individual freedom than concentrated coercive force. Liberty could survive handsomely under an enlightened monarch or unitary council, if the possessor of power limited the role of the state to its appropriate functions. History teaches the unlikelihood of this condition. It offers the collateral lesson that fragmented power, diffused among several individuals, entities, and institutions, may more likely retard abuse and salvage freedom.
Have They Worked?
Review American history. Has this system of checks and balances wrought preservation of freedom and limitation of the state? Sadly, the objective observer must respond negatively. The Supreme Court early usurped the power to declare congressional acts unconstitutional under a rule of "necessity";7 this self-serving doctrine of judicial supremacy could be checked by congressional removal of jurisdiction, or by more explicit legislation, or by constitutional amendment, but none of these devices have yet achieved the needed limitation. Thus, the Federal courts proceed to judicially legislate, oblivious to constitutional restraints and unanswerable to the electorate. Using shibboleths like "state action,"8 "affected with the public interest,"9 and the like, the judiciary has imposed upon the body politic concepts of economics, morals, and sociology which satisfy the particular jurists but few others. One can measure whether we are in a nation of laws, not men, by comparing the change in judicial policy evoked in four years by four additions to the United States Supreme Court!¹º
Assaults Upon Liberty
Again, legislative action in a bifurcated Congress has proved no savior of liberty. Political deals, use of odious riders upon needed legislation, the artifice of pork barrel politics, and bottling up bills in committee for mean and venal ends have persisted since the nation began. Members of Congress display an increasing tendency to voice freedom and economy at the same time that they vote repressive and uneconomic bills into law. The checks and balances designed to encourage mature reflection have not fared well.
Finally, the executive branch of government has contributed to the decline of freedom. Not the least of its sins has been the appointment of persons to public office lacking in any appreciation of ingenuity and the desirability of maximum individual freedom. Again, the constant inordinate demands upon the legislative branch to legislate in all nooks and crannies of human existence can only induce and achieve the lessening of human creativity.
Nor has the division of power between the states and national government protected the citizenry from the assault upon their liberty. The original premises of the nation included (1) control of government by those closest to it; (2) strictly delegated or limited functions of the government; and (3) the individual states as incubators of political theory. Nevertheless, two hundred years reveal the constant usurpation of power by the general government, a corresponding increase in activities by both state and nation, a loss of direct control by the electorate, and a continuing assault upon political variation and a growth of the orthodoxy of mediocrity.
The Trap of the Constitutionalism Response
If the present system fails to preserve freedom, rationally one should inquire whether any other system might provide that sought-after perfect solution. At this point the libertarian may be ensnared by the trap laid by the myth. For lack of a better phrase, we may term this delusion the constitutionalism response.
The advocates of the constitutionalism response recognize that carefully formulated institutions devised by the Founding Fathers have failed to achieve the sole viable end of government: human freedom. They comprehend that the most carefully conceived institutions may decline, even in a democracy or republic, where 51 per cent of the voters can ravage the remainder by ballot fiat. Yet their rejoinder is to propose more carefully constructed constitutional provisions. How often have you heard a strong libertarian utter the cliché, "There ought to be a law against (or compelling) — "? I have perceived even kindred souls suggesting that reading Bastiat’s The Law should be mandatory! A contradiction in terms. The constitutionalism response suffers from twin deficiencies. It rests upon the fallacious premises that (1) it is desirable to legislate (read: coerce) others to conform to this chosen mode of behavior and (2) it is possible to legislate proper conduct, and even to define the content of such conduct. These premises, in turn, rely for support upon the arrogant assumption that some man (or group of men) is better able and equipped to determine the destiny of other men, so that it is proper and desirable that the former compel the latter. A subsidiary false assumption presumes that any man is even privileged to make this decision about another.
Just Ends and Coercive Means
Reduce the problem to simple terms. Am I better qualified, by intrinsic worth, brains, or talent, to judge how my neighbor should conduct his life, even in the smallest particular? Stated in these terms, a negative rejoinder seems prudent. Yet, I violate that conclusion every time I coerce my neighbor into paying Social Security against his will. Recognize that I may have his best interests at heart: he does not spend his money wisely and I fear he will wind up a destitute and unhappy old man. Besides, Social Security really costs him very little and this represents, indeed, a small particular since I leave my neighbor his freedom in other arenas. Notwithstanding these rationalizations, no circumstance justifies my ordering my neighbor’s destiny, even in minute instances, save one: to prevent the use of force and fraud against free men and for the promotion and administration of common justice. In fact, it is the height of arrogance for me to even claim the privilege of making this decision for my neighbor. Of course, logic patently demonstrates that if I am not individually privileged to restrain my neighbor, neither am I entitled to coerce him by banding together with my fellows, either to form a majority or a ruling claque. Action under the imprimatur of majority rule may soothe the superficial conscience, but it renders the evil deed no less evil.
Observe where the constitutionalism response first failed — at the point where the libertarian advocates the use of non-libertarian methods to produce a "desirable" result. You may agree that the world would be a better place if all men memorized Bastiat’s The Law. I suggest that such a desirable end should not be produced by threat of death to all those who fail in this endeavor. Such an edict would violate the very principle sought to be achieved. On a less violent scale, the constitutionalism response proposes to correct injustice and restraint by the use of organized force — "There ought to be a law." If ends preexist in means, such propositions are doomed to failure.
The Art of the Possible
Most libertarians successfully hurdle the first deficiency. More of us stumble upon the second: the possibility of achieving desired ends by legislative or constitutional reform.
I propose two axioms: first, the Founding Fathers more nearly approached the ideal of human freedom than any other group of men, and that they constructed an intricate fabric (the Constitution) upon which to maximize individual liberty. Second, the condition of freedom has rapidly deteriorated despite this philosophy and protection. Given these premises, what can be done to better our condition? Is it possible to write a better constitutional answer?
I suggest that while improvement might be made in our Constitution, no man-made vehicle can possess perfection. Just as finite man is fallible, so also are his words, works, and institutions.
The problem is complicated by the nature of language. Words provide poor vehicles for transportation of concepts. Concepts contain the amount of precision and perfection injected by the perceiver; the perceiver is finite. But the perceiver may arrive at something close to perfection in his mind, yet be deterred or obstructed in conveying his thoughts to a listener or reader by the sheer clumsiness of language.
Words possess shades and variations of meanings. Meaning and content differ from man to man. The classic intra-libertarian intellectual struggles bear ample witness to the fact that even persons in basic agreement in principle may contest in context.
Differences in Interpretation
For example, I may say that the state should limit its activities to the prevention of force and fraud, to the protection of its citizens from internal violence and external aggression, and to the promotion of common justice. You may agree. You know these words and you understand their common signification; to you, the content is sound and we affirm our harmony. Yet this accord may dissipate rapidly when we apply my broad statement to concrete situations, or when we test it by definition or analysis. We may agree in principle and thus form a consensus, but disagree in application. Consider fraud. To a lawyer, fraud possesses a stylized jural meaning: it is a material representation, false in fact, made by a party when he knows that it is false or made recklessly by that party without knowledge of its falsity and as a positive assertion, made with the intention that it should be acted upon by that other person in reliance and to his detriment.11 I may mean the government shall only penalize active legal fraud as defined by the court; you may conceive of fraud as something quite different, incorporating common (and just) senses of indignation against a more wide-ringing and invidious type of deception. Any general definitional term may divide us when we seek to apply the rule to specific situations.
A constitution resembles the instance set forth in the last paragraph. By nature, constitutions are fundamental, basic documents. They are full of open-textured concepts which possess many interpretational interstices. As our "fraud" analysis demonstrated, words are susceptible to many meanings. General agreement can be achieved at the core; less agreement will hold sway at the penumbra. For example, most of us would agree that it is fraudulent for a used car dealer to affirmatively tell a buyer that the subject vehicle has only been driven 10,000 miles when in fact the dealer set back the speedometer from 50,000 miles himself that very morning, at least if the buyer believed the dealer, bought the car in reliance upon his affirmation, and was harmed by the misstatement. We might have a much more difficult time in reaching a consensus of fraud in a case where a seller conveyed a new vacuum cleaner to a buyer upon the affirmation that the machine was manufactured in Yuma, when in fact it was made up of parts made in Yuma but assembled in Flagstaff.
Two examples of open-textured phrases from the present Constitution sufficiently manifest this intrinsic deficiency appearing in that essential document. The states granted Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."12 Scholarly analysis demonstrates that the draftsmen intended to grant to Congress the power to inhibit trade barriers between states such as plagued the nation under the Articles of Confederation. Yet the Federal government has used this little clause as the basis for usurpation of a vast range of human action by implementation of restrictive legislative and judicial decisions. A similar flagrant linguistic misuse concerns the "general welfare"13 clause of the preamble which has been tortured beyond belief.
History thus proffers a clear lesson to be learned: no matter how clear and precise a constitution may be, there exists no guarantee that succeeding generations of politicians and judges will not distort the phraseology, history, and meaning to their own ends, which usually involve the assumption of greater power to the state. I challenge whether it is possible to draft a constitution which will withstand the ravages of "unworthy" men.14
The Solution
I tender no perfect solution. None exists. I do offer a solution which may not be wholly palatable to today’s activists who are aggrieved by the miasma wrought by governmental intervention. That solution is persuasion and reliance upon enlightened men. The concept of limited government requires, in final analysis, an agreement upon basic principles of limitation and the good faith of all citizens who participate in the body politic. Legislators and executives can be elected with a majority mandate to overturn or ignore basic principles;¹5 judicial officers can misread a constitution or a statute. The sole viable solution is to educate and persuade an increasingly greater number of men to act in harmony with the principles of the freedom philosophy both in their private lives and as public servants."
The nature of the solution should not deter us from seeking after perfection. It does not mean we should desist from ruffling liberal tail feathers wherever we can. It does not mean that we should desert the polling place. I merely suggest that we should not place ultimate reliance upon the ballot box or a written document for the perfect solution. We come nearer to perfection if we concentrate on self-improvement and self-enlightenment, so that each of us brings his own candlepower into conjunction with others. Who knows — the Remnant might become a horde.
—FOOTNOTES—
1 I use the terms "voluntarist," "libertarian," and "exponent of the freedom philosophy" interchangeably. By these words, I mean a person who adheres to the concepts of private property, limited government, free market economics, and individual self-determination, one who believes that the state is properly limited to promotion of common justice and protection of the individual from force and fraud by internal predators or external aggressors.
2 The Declaration of Independence, in salient part, forms the basis of the libertarian philosophy and suggests the obligation of government should be limited to securing personal freedom: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, ***."
3 Webster’s New International Dictionary, third edition, unabridged (G. & C. Merriam Company, Springfield, Massachusetts) 2179.
4 Luther v. Borden, 17 U.S. (7 How) 1, 12 (1849).
5 See Foley, Ridgway K., Jr., "Individual Liberty and the Rule of Law" 21 Freeman No. 6, 357-378 (June 1971), and 7 Will. L. J. 396-418 (Dec. 1971), wherein I have attempted to analyze proper and improper uses of law.
6 Of course, this cursory summary is not intended to be an exhaustive analysis of the system of checks and balances, division of power, and separation of power. Entire treatises have considered these conditions and provisions. The statements in this paragraph are intended as illustrative only.
7 Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803).
8 But see Moose Lodge No. 17 v. Irvis, Supreme Court Bulletin B2734 (June 12, 1972), and Lloyd Corp., Ltd. v. Tanner, Supreme Court Bulletin B3140 (June 22, 1972), where the Court has taken a much-desired backward step from the governmental expansive concept of "state action." The philosophical defects and libertarian antidotes to this freedom emasculating tenet deserve a separate essay.
9 Munn a. Illinois, 94 U.S. 113, 24 L. Ed. 77 (1876).
¹º0 The author holds no brief for Chief Justice Burger and Associate Justices Blackman, Powell and Rehnquist as libertarians in the sense used here. Indeed, their decisions reveal a singular ambivalence and inconsistencies so typical of those not endowed with any consistent philosophy of freedom. (Mr. Justice Rehnquist may prove the exception to this broad statement.) Nevertheless, no one can deny that these men, "conservatives" at least in the traditional sense, have worked a major change in the jural fabric of our nation.
1¹ See, e.g., Amort v. Tupper, 204 Or.
12 United States Constitution, Art. I, 279, 282 P. 2d 660 (1955). § 8, Cl. 3.
13 United States Constitution, Preamble: "We the People of the United States in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
¹4 See Footnote 4. The Soviet Constitution, in many respects, appears to be a most liberal instrument, yet witness the depredations wrought in that family of nations.
15 I am reminded of Dr. Poirot’s recent article "Who Should Vote?" 21 Freeman No. 2, 120-124 (February 1971) wherein he discusses, inter alia, potential limitations upon the franchise to the end that freedom might better survive. I do not disagree necessarily with some of his excellent ideas, I merely point out that franchise limitations pose no insurmountable barrier to the statists who convince the electorate that plunder is proper. Enlightened freemen provide our sole effective recourse in final analysis.
¹6 Insofar as the method of education and persuasion consistent with the freedom philosophy is concerned, I defer to the writings of Mr. Leonard Read who has given this subject much consideration.
Ridgway K. Foley Jr.
Ridgway K. Foley Jr. is a litigation lawyer who is passionate about individual and economic freedom, and has authored numerous scholarly articles on related subjects.