Freedom & Majority Rule
By Edmund A. Opitz
The publisher of the London Times came to this country a few years after World War I. A banquet in his honor was held in New York City, and at the appropriate time Lord Northcliffe rose to his feet to propose a toast. Prohibition was in effect, you will recall, and the beverage customarily drunk by Northcliffe in his homeland was not available here. So Northcliffe raised his glass of water and said: "Here's to America, where you do as you please. And if you don't, they make you!"
Here, in this land of the free, "we" as voters had amended the Constitution to punish conduct which "we" - as consumers - had been enjoying. If you point out that the Eighteenth Amendment had been inserted into the Constitution by majority vote, and that therefore "we" had done it to "ourselves," you need to be reminded that the "we" who did it were not the same people as the "ourselves" to whom it was done!
The Eighteenth Amendment was annulled in 1933. Shortly thereafter another prohibition law was passed, this one a prohibition against owning gold. Under the earlier dispensation you could walk down the street with a pocketful of gold coins without breaking the law; but if you were caught carrying a bottle of whiskey you might be arrested.
Then the rules were changed, and you could carry all the whiskey you wanted, but if you had any gold in your pocket you could be thrown in jail!
Our scientists are exploring outer space looking for intelligent life on other planets. I hope they find some, because there's none to spare on planet earth! With how little wisdom do we organize our lives, especially in the areas of government and the economy!
The fundamental issue in political philosophy is the limitation of governmental power; it is to determine the role of law, the functions appropriate to the political agency. The basic question may be phrased in a variety of ways: What things belong in the public domain? And What things are private? What tasks should be assigned to Washington or some lesser governmental agency, and in what sectors of life should people be free to pursue their own goals? When should legal coercion be used to force a person to do something against his will? In view of government's nature, what is its competence? What are the criteria which enable us to distinguish a just law from an unjust law?
These are questions we cannot avoid. It is true that we don't have to debate them, or even think about them; but we cannot help acting on them. Some theory about government is the hidden premise of all political action, and we'll improve our action only as we refine our theory.
What Functions Are Appropriate?
In the light of government's nature, what functions may we appropriately assign to it? This is the question, and there are two ways to approach it. The approach favored today is to count noses - find out what a majority of the people want from government, and then elect politicians who will give it to them! And believe me, they've been giving it to us! The party that wins an election is "swept into office on a ground swell of public opinion," as popular mythology has it; and of course the winners have "a mandate from the people." That's spelled Peepul.
I do not accept this approach to political philosophy, and will offer some reasons for rejecting it. Neither did our forebears accept this approach. Every political thinker in the West from Plato down to modern times has taken a different tack. Now the mere fact that something is enshrined by tradition is no reason for accepting it; we accept something because we believe it to be true. But anything which is both tried and true has a lot going for it. Let me try to sketch briefly the way our forebears went about the intellectual and moral problem of trying to figure out what government should do, and how we determine whether or not a law is just.
The backbone of any legal system is a set of prohibitions. The law forbids certain actions and punishes those who do them anyway. The solid core of any legal system, therefore, is the moral code, which, in our culture is conveyed to us by the Mosaic Law. The Sixth Commandment of The Decalogue says: "Thou shalt not commit murder," and this moral imperative is built into every statute which prescribes punishment for homicide. The Eighth Commandment forbids stealing, and this moral norm gives rise to laws punishing theft. There is a moral law against murder because each human life is precious; and there is a moral law against theft because rightful property is an extension of the person. "A possession," Aristotle writes, "is an instrument for maintaining life." Deprive a person of the right, to own property and he becomes something less than a person; he becomes someone else's man. A man to whom we deny the rights of ownership must be owned by someone else; he becomes another man's creature-a slave. The master-slave relation is a violation of the rightful order of things, that is, a violation of individual liberty and voluntary association.
The Gift of Life
Each human being has the gift of life and is charged with the responsibility of bringing his life to completion. He is also a steward of the earth's scarce resources, which he must use wisely and economically. Man is a responsible being, but no person can be held responsible for the way he lives his life and conserves his property unless he is free. Liberty, therefore, is a necessary corollary to Life and Property. Our forebears regarded Life, Liberty and Property as natural rights, and the importance of these basic rights was stressed again and again in the oratory, the preaching, and the writings of the Eighteenth Century. "Life, Liberty and Property are the gifts of the Creator," declared the Reverend Daniel Shute in 1767 from the pulpit which I occupied some 200 years later. Life, Liberty and Property are the ideas of more than antiquarian interest; they are potent ideas because they transcribe into words an important aspect of the way things are.
Our ancestors intended to ground their legal and moral codes on the nature of things, just as students of the natural sciences intend their laws to be a transcription of the way things behave. For example: Physical bodies throughout the universe attract each other, increasing with the mass of the attracting body and diminishing with the square of the distance. Sir Isaac Newton made some observations along these lines and gave us the law of gravity. How come gravitational attraction varies as the inverse-square of the distance, and not as the inverse-cube? One is as thinkable as the other, but it just happens that the universe is prejudiced in favor of the inverse-square in this instance; just as the universe is prejudiced against murder, has a strong bias in favor of property, and wills men to be free.
Immanuel Kant echoed an ancient sentiment when he declared that two things filled him with awe; the starry heavens without, and the moral law within. The precision and order in nature manifest the Author of nature. The Creator is also the Author of our being and requires certain duties of us, his creatures. There is, thus, an outer reality joined to the reality within, and this twofold reality has an intelligible pattern, a coherent structure.
This dual arrangement is not made by human hands; it's unchangeable, it's not affected by our wishes, and it can't be tampered with. It can, however, be misinterpreted, and it can be disobeyed. We consult certain portions of this pattern and draw up blueprints for building a bridge. If we misinterpret, the bridge collapses. And a society disintegrates if its members disobey the configuration laid down in the nature of things for our guidance. This configuration is the moral order, as interpreted by reason and tradition.
We're in fairly deep water here, and this is as far into theology as I shall venture.
The point, simply put, is that our forebears, when they wanted to get some clues for the regulating of their private and public lives, sought for answers in a reality beyond society. They believed in a sacred order which transcends the world, an order of creation, and believed that our duties within society reflect the mandates of this divine order.
Take a Poll
This view of one's duty is quite in contrast to the method currently popular for determining what we should do; which is to conduct an opinion poll. Find out what the crowd wants, and then say "Me too!" This is what the advice of certain political scientists boils down to. Here is Professor James MacGregor Burns, a certified liberal and the author of several highly touted books, such as The Deadlock of Democracy and a biography of John F. Kennedy. Liberals play what Burns calls "the numbers game." "'As a liberal I believe in majority rule," he writes. "I believe that the great decisions should be made by numbers." In other words, don't think; count!" What does a majority have a right to do?" he asks. And he answers his own question. "A majority has the right to do anything in the economic and social arena that is relevant to our national problems and national purposes." And then, realizing the enormity of what he has just said, he backs off: ".. except to change the basic rules of the game."
Burns' final disclaimer sounds much like an afterthought, for some of his liberal cohorts support the idea of unqualified majority rule. The late Herman Finer, in his anti-Hayek book entitled Road to Reaction, declares "For in a democracy, right is what the majority makes it to be." (p. 60.) What we have here is an updating of the ancient "might makes right" doctrine. The majority does have more muscle than the minority, it has the power to carry out its will, and thus it is entitled to have its own way. If right is whatever the majority says it is, then whatever the majority does is O.K., by definition. Farewell, then to individual rights, and farewell to the rights of the minorities; the majority is the group that has made it to the top, and the name of the game is winner take all.
The dictionary definition of a majority is 50% plus 1. But if you were to draw up an equation to diagram modern majoritarianism it would read:
50% + 1 = 100%; 50% - 1 = ZERO!
Amusing confirmation comes from a professor at Rutgers University, writing a letter to the Times. Several years ago considerable criticism was generated by the appointment of a certain man to a position in the national government. Such criticism is unwarranted, writes our political scientist, because the critics comprise "a public which, by virtue of having lost the last election, has no business approving or disapproving appointments by those who won." This is a modern version of the old adage, "To the victor belong the spoils." This Rutgers professor goes on to say, "Contrary to President Lincoln's famous but misleading phrase, ours is not a government by the people, but government by government." So there!
The Nature of Government
What functions may we appropriately assign to the political agency? What should government do? Today's answer is that government should do whatever a majority wants a government to do; find out what the People want from government, and then give it to them. The older and truer answer is based upon the belief that the rules for living together in society may be discovered if we think hard and clearly about the matter, and the corollary that we can conform our lives to these rules if we resolve to do so. But I have said nothing so far about the nature or essence of government.
Americans are justly proud of our nation, but this pride sometimes blinds us to reality. How often have you heard someone declare, "In America, 'We are the government." This assertion is demonstrably untrue; "We" are the society, all 215 million of us; but society and government are not at all the same entity. Society is all-of-us, whereas government is only some-of-us. The some-of-us who comprise government would begin with the President, Vice-president, and Cabinet; it would include Congress and the bureaucracy; it would descend through governors, mayors and lesser officials, down to sheriffs and the cop on the beat.
A Unique Institution
Government is unique among the institutions of society, in that society has bestowed upon this one agency exclusive legal control over the weaponry, from clubs to hydrogen bombs. Governments do use persuasion, and they do rely on authority, legitimacy and tradition - but so do other institutions like the Church and the School. But only one agency has the power to tax, the authority to operate the system of courts and jails, and a warrant for mobilizing the machinery for making war; that is government, the power structure.
Governmental action is what it is, no matter what sanction might be offered to justify what it does. Government always acts with power; in the last resort government uses force to back up its decrees.
Society's Power Structure
When I remind you that the government of a society is that society's power structure, I am not offering you a novel theory, nor a fanciful political notion of my own. It is a truism that government is society's legal agency of compulsion. Virtually every statesman and every political scientist - whether Left or Right - takes this for granted and does his theorizing from this as a base. "Government is not reason, it is not eloquence;" wrote George Washington, "it is force."
Bertrand Russell, in a 1916 book, said, "The essence of the State is that it is the repository of the collective force of its citizens." Ten years later, the Columbia University professor, R. M. MacIver spoke of the state as "the authority which alone has compulsive power." The English writer, Alfred Cobban, says that "the essence of the state, and of all political organizations, is power."
But why labor the obvious except for the fact that so many of our contemporaries - those who say "we are the government" overlook it? What we are talking about is the power of man over man; government is the legal authorization which permits some men to use force on others. When we advocate a law to accomplish a certain goal, we advertise our inability to persuade people to act in the manner we recommend; so we're going to force them to conform! As Sargent Shriver once put it, "In a democracy you don't compel people to do something unless you are sure they won't do it. "
In the liberal mythology of this century, government is all things to all men. Liberals think that government assumes whatever characteristics people wish upon it - like Proteus in Greek mythology who took on one shape after another, depending on the circumstances. But government is not an all-purpose tool; it has a specific nature, and its nature determines what government can accomplish. When properly limited, government serves a social end no other agency can achieve; its use of force is constructive. The alternatives here are law and tyranny - as the Greeks put it. This is how the playwright, Aeschylus, saw it in The Eumenides: "Let no man live uncurbed by law, nor curbed by tyranny."
The Moral Code
If government is to serve a moral end it must not violate the moral code. The moral code tells us that human life is sacred, that liberty is precious, and that ownership of property is good. And by the same token, this moral code supplies a definition of criminal action; murder is a crime, theft is a crime, and it is criminal to abridge any person's lawful freedom. It becomes a function of the law, then, in harmony with the moral code, to use force against criminal actions in order that peaceful citizens may go about their business. The use of legal force against criminals for the protection of the innocent is the earmark of a properly limited government.
This is an utterly different kind of procedure than the use of government force on peaceful citizens - whatever the excuse or rationalization. People should not be forced into conformity with any social blueprint; their private plans should not be overridden in the interests of some national plan or social goal. Government - the public power - should not be used for private advantage; it should not be used to protect people from themselves.
Well, what should the law do to peaceful, innocent citizens? It should let them alone! When government lets John Doe alone, and punishes anyone who refuses to let him alone, then John Doe is a free man.
In this country we have a republican form of government. The word "republic" is from the Latin words, res and publica, meaning the things or affairs which are common to all of us, the affairs which are in the public domain, in sharp contrast to matters which are private. Government, then, is "the public thing," and this strong emphasis on public serves to delimit and set boundaries to governmental power, in the interest of preserving the integrity of the private domain.
What's in a name? You might be thinking. Well, in this case, in the case of republic, a lot. The word "republic" encapsulates a political philosophy; it connotes the philosophy of government which would limit government to the defense of life, liberty and property in order to serve the ends of justice. There's no such connotation in the word "monarchy," for example; or in aristocracy or oligarchy.
A monarch is the sole, supreme ruler of a country, and there is theoretically no area in the fife of his citizens over which he may not hold sway. The king owns the country and his people belong to him.
Monarchical practice pretty well coincided with theory in what is called "Oriental Despotism," but in Christendom the power of the kings was limited by the nobility on the one hand, and the Emperor on the other; and all secular rulers had to take account of the power of the Papacy. Power was played off against power, to the advantage of the populace.
The most important social value in Western civilization is individual liberty. The human person is looked upon as God's creature, gifted with free will which endows him with the capacity to choose what he will make of his life. Our inner, spiritual freedom must be matched by an outer and social liberty if man is to fulfill his duty toward his Maker. Creatures of the state cannot achieve their destiny as human beings; therefore, government must be limited to securing and preserving freedom of personal action, within the rules for maximizing liberty and opportunity for everyone.
Unless we are persuaded of the importance of freedom to the individual, it is obvious that we will not structure government around him to protect his private domain and secure his rights. The idea of individual liberty is old, but it was given a tremendous boost in the sixteenth century by the Reformation and the Renaissance.
The earliest manifestation of this renewed idea of liberty was in the area of religion, issuing in the conviction that a person should be allowed to worship God in his own way. This religious ferment in England gave us Puritanism, and early in the seventeenth century Puritanism projected a political movement whose members were contemptuously called Whiggamores - later shortened to Whigs - a word roughly equivalent to "cattle thieves." The king's men were called Tories - "highway robbers." The Whigs worked for individual liberty and progress; the Tories defended the old order of the king, the landed aristocracy, and the established church.
One of the great writers and thinkers in the Puritan and Whig tradition was John Milton, who wrote his celebrated plea for the abolition of Parliamentary censorship of printed material in 1644, Areopagitica. Many skirmishes had to be fought before freedom of the press was finally accepted as one of the earmarks of a free society. Free speech is a corollary of press freedom, and I remind you of the statement attributed to Voltaire: "I disagree with everything you say, but I will defend with my life your right to say it."
Adam Smith extended freedom to the economic order, with The Wealth of Nations, published in 1776 and warmly received in the thirteen colonies. Our population numbered about 3 million at this time; roughly one third of these were Loyalists, that is, Tory in outlook, and besides, there was a war on. Despite these circumstances 2,500 sets of The Wealth of Nations were sold in the colonies within five years of its publication. The colonists had been practicing economic liberty for a long time, simply because their governments were too busy with other things to interfere - or too inefficient - and Adam Smith gave them a rationale.
The Bill of Rights
Ten amendments to the Constitution were adopted in 1791. Article the First reads: "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof ... "The separation of Church and State enunciated here was a momentous first step in world history. Religious liberty, freedom of the press, free speech and the free economy are four departments of the same liberating trend - the Whig movement.
The men we refer to as the Founding Fathers would have called themselves Whigs. Edmund Burke was the chief spokesman for a group in Parliament known as The Rockingham Whigs. In 1832 the Whig Party in England changed its name to one which more aptly described its emphasis on liberty. It became the Liberal Party, standing for free trade, religious liberty, the abolition of slavery, extension of the franchise, and other reforms.
Classical Liberalism is not to be confused with the thing called "liberalism" in our time! Today's "liberalism" is the exact opposite of historical Liberalism - which came out of the eighteenth-century Whiggism - which came out of the seventeenth-century Puritanism. The labels are the same; the realities are utterly different. Present day liberals have trouble with ideas, as ideas, so they try to dispose of uncomfortable thoughts by pigeonholing them in a time slot. The ideas of individual liberty, inherent rights, limited government and the free economy are, they say, eighteenth-century ideas. What a dumb comment! The proper test of an idea is not the test of time but the test of truth!
You may be wondering why I have not yet used the word "democracy," although I've spoken of monarchy, oligarchy, and liberalism. Well, I'll tell you. Our discussion has focused on the nature of government, and we have discovered that the essence of government is power, legal force.
Once this truth sinks in we take the next step, which is to figure out what functions may appropriately be assigned to the one social agency authorized to use force. This brings us back to the moral code and the primary values of life, liberty and property. It is the function of the law to protect the life, liberty and property of all persons alike in order that the human person may achieve his proper destiny.
Voting Is Appropriate for Choosing Officeholders
There's another question to resolve, tied in with the basic one, but much less important: How do you choose personnel for public office? After you have employed the relevant intellectual and moral criteria and confined public things to the public sector, leaving the major concerns of life in the private sector ... once you've done this there's still the matter of choosing people for office.
One method is choice by bloodline. If your father is king, and if you are the eldest son, why you'll be king when the old man dies. Limited monarchy still has its advocates, and kingship will work if a people embrace the monarchical ideology. Monarchy hasn't always worked smoothly, however, else what would Shakespeare have done for his plays? Sometimes your mother's lover will bump off the old man, or your kid brother might try to poison you.
There's a better way to choose personnel for public office; let the people vote. Confine government within the limits dictated by reason and morals, lay down appropriate requirements, and then let voters go to the polls. The candidate who gets the majority of votes gets the job. This is democracy, and this is the right place for majority action. As Pericles put it 2,500 years ago, democracy is where the many participate in rule.
Voting is little more than a popularity contest, and the most popular man is not necessarily the best man, just as the most popular idea is not always the soundest idea. It is obvious, then, that balloting - or counting noses or taking a sampling of public opinion - is not the way to get at the fundamental question of the proper role of government within a society. We have to think hard about this one, which means we have to assemble the evidence; weigh, sift, and criticize it; compare notes with colleagues, and so on. In other words, this is an educational endeavor, a matter for the classroom, the study, the podium, the pulpit, the forum, the press. To count noses at this point is a cop out; there's no place here for a Gallup Poll.
To summarize: The fundamental question has to do with the scope and functions of the political agency, and only hard thinking - education in the broad sense - can resolve this question. The lesser question has to do with the choice of personnel; and majority action - democratic decision - is the way to deal with it. But if we approach the first question with the mechanics appropriate to the second, we have confused the categories and we're in for trouble.
We began to confuse the categories more than 140 years ago, as Alexis de Tocqueville observed. His book, Democracy in America, warned us about the emergence here of what he called "democratic despotism," which would "degrade men without tormenting them." We were warned again in 1859 by a professor at Columbia University, Francis Lieber, in his book, On Civil Liberty and Self-government: "Woe to the country in which political hypocrisy first calls the people almighty, then teaches that the voice of the people is divine, then pretends to take a mere clamor for the true voice of the people, and lastly gets up the desired clamor." Getting up the desired clamor is what we call "social engineering," or "the engineering of consent."
What is called "a majority" in contemporary politics is almost invariably a numerical minority, whipped up by an even smaller minority of determined and sometimes unscrupulous men. There's not a single plank in the platform of the welfare state that was put there because of a genuine demand by a genuine majority. A welfarist government is always up for grabs, and various factions, pressure groups, special interests, causes, ideologies seize the levers of government in order to impose their programs on the rest of the nation.
Let's assume that we don't like what's going on today in this and other countries; we don't like it because people are being violated, as well as principles. We know the government is off the track, and we want to get it back on; but we know in our bones that Edmund Burke was right when he said, "There never was, for any long time ... a mean, sluggish, careless people that ever had a good government of any form." Politics, in other words, reflects the character of a people, and you cannot improve the tone of politics except as you elevate the character of a significant number of persons. The improvement of character is the hard task of religion, ethics, art, and education. When we do our work properly in these areas, our public life will automatically respond.
Large numbers are not required. A small number of men and women whose convictions are sound and clearly thought out, who can present their philosophy persuasively, and who manifest their ideas by the quality of their lives, can inspire the multitude whose ideas are too vague to generate convictions of any sort. A little leaven raises the entire lump of dough; a tiny flame starts a mighty conflagration; a small rudder turns a huge ship. And a handful of people possessed of ideas and a dream can change a nation - especially when that nation is searching for new answers and a new direction.
At the time of the original publication, The Reverend Mr. Opitz was a member of the staff of the Foundation for Economic Education, a seminar lecturer, and author of the book, Religion and Capitalism: Allies, Not Enemies.
Reprinted with permission from The Freeman, a publication of The Foundation for Economic Education, Inc., Vol. 27, No. 1, January 1977.