Anthony de Jasay on Limiting Power

Anthony de Jasay, an occasional contributor to this site and The Freeman (pdf), is a refreshing political thinker. His classic, The State, asks questions few have asked since Thomas Hobbes assured us that swapping freedom for security under Leviathan was a slam dunk. Jasay never fails to challenge his readers.

Leave it to him to ask, Is limited government possible? in his essay collection Against Politics. It’s a reasonable question, isn’t it? Classical liberals often say government should be limited to the protection of life, liberty, and property. Asked how, they answer along these lines: with a proper constitution. That looks like a sufficient answer, but it’s not. What is a proper constitution? How does it get adopted? And how does one get round the interpretation and enforcement problems. (I’ve written about this before, in Where Is the Constitution? and The Constitution Within.)

Jasay’s essay zeroes in on the incentives to not keep government limited even if starts out that way. For him, the abstract question of limiting government presents no problem. As he writes, “Little ingenuity is needed to devise a constitution which, by direct or roundabout means, tends to restrict the domain of collective choice to some definable sphere and by the same token limits the scope, functions, and power of government, making it ‘smaller’ than it would be if the domain were unrestricted. …There is a plethora of constitutional devices for ‘rigging’ rules and procedures in such a way as to clip the wings of the state.”

One way, he says, would be to let people who pay more in taxes make more governmental decisions. Wishing to keep their taxes low, they presumably would constrict the government’s sphere of action. Maybe.

“However,” he continues, “the problem of securing limited government and individual sovereignty is not how to invent domain-restricting constitutional devices. It is to find the conditions, if there are any, under which such devices would be likely to be adopted, respected, and left intact for long enough to do any good.”

In other words, I take him say, we must guard against rationalism, or excessive abstraction from the real world populated with real people. Fair enough. If people were libertarian robots, political problems would be few and far between. But they’re not. Devotees of the U.S. Constitution must concede Jasay’s point — for how else to explain how government has grown beyond the boundaries presumed to be set by that document? I don’t recall reading about a coup d’etat in American history. Everything that happened happened under the Constitution with the blessing of constitutionally anointed presidents, senators, representatives, judges, and justices. If it is suggested that those officers and the larger population did not properly understand the Constitution, it might be countered that they did understand it and did not like it. So they changed it. (Some will say here that therefore they should have amended it under Article V. But all constitutions necessarily have an informal, as well as a formal, amendment process — because all constitutions must be interpreted along the way. They can’t speak for themselves.)

Jasay is making a point of logic, which he does throughout his work. In a free society not ruled by an outside force, how do you keep the population (or “the decisive coalition”) from changing the rules and enlarging the state? As he puts it, “Unfortunately, the construction under which society’s opinion keeps society’s power from doing what society wants suffers from a failing common to much normative constitutional theory.” His reference to society’s opinion is in answer to F.A. Hayek, who contended that such opinion is what limits power. “The search for an institution or a rule — or a body to interpret it — that is representative yet stands above interests, decisive yet benign, conflictual yet unanimous, square yet round, is perhaps not a total waste of time, for it may have educational value,” Jasay writes. “But those who would guide us cannot possibly find the object they are searching for, and it seems to me wrong of them to pass off the searching as if it were the finding.”

In other words, the many proposed institutional solutions for keeping government limited are not really solutions at all. They all beg the big question.

Can the polity tie a knot so complicated that it cannot untie it? Jasay thinks not. And it would have no incentive to do so even if it could. Why would a decisive coalition bind itself down with a more-restrictive regime when it can have a less-restrictive one? And why stick with rules under which the size of the decisive coalition is larger than it need be? These considerations lead Jasay to the “ominous prediction that when opinion is dependent on preference and interest, the end of the line of constitutional development is unlimited popular sovereignty, bare majority rule, and the erosion of obstacles that could prevent collective choice from overriding private choice.” The result be would indeed be a government of laws but “not limited in the accepted sense of the word.”

The Tendency to Grow

The tendency of this government to grow comes from the fact that the marginal cost to an individual of additional government services is “zero or subjectively seen as zero”: “Hence the net benefit he expects to derive from increased public provision of the goods he may want to consume is, subjectively and ex ante, always positive.” Meaning: the demand for more government will not be constrained in the way the demand for goods in the market is.

Jasay sees his theory played out in the West. The period of relatively limited government in America he attributes not to “the Lockean inspiration of the Constitution,” but to the abundance of intermediary institutions that stood between the people and the state. But “although it took its time in doing it, history on either side of the Atlantic seldom failed to get close to the theoretical end result, bare majority rule and practically unrestricted domain…. It is to history taking its time that we owe thanks for the brilliant but passing nineteenth-century interlude in Western civilization, with limited government and assured-looking private sovereignty of everybody’s own decisions over crucial domains of economic and social life. If our more collective twentieth century is in some respects ‘better,’ less arduous, more clement and relaxed, it is in no small measure because it is living off the accumulation of moral and material reserves mostly squirreled away during that earlier private interlude.”

So: “[L]imited government with popular sovereignty is precarious [and] historically in retreat….” What do we do about it?

A Way Out?

Jasay suggests a way out of our problem. “To limit government, there must be something among the determinants of collective choice that overrides preference and interest, yet does not contradict the condition underlying any social contract, namely that collective choice is never independent of what significant numbers of individuals wish it to be.” This determinant must be something inside the individual that inhibits her own “utility-maximizing conduct” — like a rule against private stealing. (How often do you do a calculus to determine if you should ignore your inhibition against stealing in this case?) This inhibiting determinant would be a taboo we teach our children from the earliest possible age. (Thou shalt not use the state to steal.)

“Men raised, whether by priests or others, to acquiesce in certain alternatives and to reject others almost by reflex action, without trying to excogitate the consequences, may simply refrain from opting for feasible public policies that would promote their interests, if such policies would violate ‘natural right,’” Jasay writes (emphasis added). Sure, we could reasonably say that a person’s deeper interests are served by unfailingly observing this internal standard, but, Jasay says, it is a far more sturdy thing if “He opts for certain states of affairs not because of what their consequences will do for him, but simply for what they are.”

Fine, but how can “such standards take hold in a culture?” Jasay asks. Alas, politics and economics cannot give an answer. This is the domain, he says, of history and social anthropology. However, he ventures his “personal conviction that enduring limited government is only possible in conjunction with unreasoning acceptance, by significant parts of society, of certain metaphysical propositions [emphasis added]” — such as that government should not be asked to intervene even when intervention seems to be in one’s self-interest. “However, dangerous and double-edged as they can be, religion, taboo and superstition have indispensable roles to play in curbing the calculations of reason, and in resisting the relentless advance of collective choice propelled by individual interest.”

I discuss Jasay’s provocative paper not because I am persuaded by his answer, but rather because he raises a long-evaded question. I would like to think that liberty can be protected and power contained by means other than deemphasizing reason, divorcing morality from self-interest, and embracing taboo. Perhaps a broader notion of interest, something more Aristotelian than Hobbesian, holds the key. As Auburn philosopher Roderick Long expresses it, justice, or respect for rights, “is to be valued [not merely because it is an instrumental means to one's well-being, but] because it is a constitutive means to one’s well-being.” That is to say: living justly is not just a bridge to the good life; it is the good life (or a crucial part of it). “To trample on the rights of others is never in our self-interest,” Professor Long writes, “because well-being cannot ‘come about for those who rob and use force.’ One cannot do evil that good may come, because the result counts as good only if it is achieved in the right way. The binding force of rights presumably derives from this source” (Reason and Value: Aristotle versus Rand).

So instead of the free society’s depending on teaching our children “unreasoning acceptance” of certain metaphysical propositions, perhaps we need only teach them Aristotelian ethics.