All Commentary
Friday, November 6, 2009

Let’s Ignore Congress


I spent a good part of Wednesday night closely skimming — my conscience won’t let me type “reading” — the Republicans’ alternative healthcare “reform” bill. It’s 219 pages of legalese. I know it’s one-tenth the size of Speaker Pelosi’s bill, but that doesn’t make for easier navigation. Figuring out how it all would work is no easy task, and I don’t claim to have done it. At least the bill appears to legalize the purchase of insurance across state lines and does not contain an individual or employer mandate.

It does promise to lower the cost of medical insurance. Maybe it would, but with Medicare driving up prices and shifting costs to non-Medicare patients, I doubt it. Others have pointed out that belief in government is like belief in magic. No need to wonder how it will achieve some glorious purpose. The mere expression of its will is enough to make it happen. I think of Yul Brynner as Ramses II in The Ten Commandments: “So it is written, so it shall be done.”

In keeping with the magic theme, the titles of legislation look like incantations. The Republican bill is called the Common Sense Health Care Reform and Affordability Act (pdf). I wondered what the acronym would be, then realized that CSHCRA is not pronounceable. (Pelosi’s AHCA [Affordable Health Care for America Act] isn’t much better.) I guess the title shop in Congress couldn’t come with anything as clever as the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) or the HEALTHCOURT Act (Health Care Over Use Reform Today), a malpractice overhaul bill.

Here’s a taste of the House GOP leadership’s bill:

SEC. 101. ESTABLISH UNIVERSAL ACCESS PROGRAMS TO IMPROVE HIGH RISK POOLS AND REINSURANCE MARKETS.

(a) STATE REQUIREMENT.-

(1) IN GENERAL.-Not later than January 1, 2010, each State shall-

(A) subject to paragraph (3), operate–

(i) a qualified State reinsurance program described in subsection (b); or

(ii) qualifying State high risk pool described in subsection (c)(I); and

(B) subject to paragraph (3), apply to the operation of such a program from State funds an amount equivalent to the portion of State funds derived from State premium assessments (as defined by the Secretary) that are not otherwise used on State health care programs.

You get the idea. Imagine that for 219 pages, never mind 1,990!

Is it any wonder that at times like these I seek comfort in chapter 19 of Herbert Spencer’s great classical liberal work Social Statics: “The Right to Ignore the State” (1850)? In that work Spencer establishes his well-known law of equal freedom: “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.” Then later he draws out a neglected implication:

If every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man, then he is free to drop connection with the state — to relinquish its protection, and to refuse paying towards its support. It is self-evident that in so behaving he in no way trenches upon the liberty of others; for his position is a passive one; and whilst passive he cannot become an aggressor. It is equally self-evident that he cannot be compelled to continue one of a political corporation, without a breach of the moral law, seeing that citizenship involves payment of taxes; and the taking away of a man’s property against his will, is an infringement of his rights. Government being simply an agent employed in common by a number of individuals to secure to them certain advantages, the very nature of the connection implies that it is for each to say whether he will employ such an agent or not. If any one of them determines to ignore this mutual-safety confederation, nothing can be said except that he loses all claim to its good offices, and exposes himself to the danger of maltreatment — a thing he is quite at liberty to do if he likes. He cannot be coerced into political combination without a breach of the law of equal freedom; he can withdraw from it without committing any such breach; and he has therefore a right so to withdraw.

Heady stuff, indeed. Where is the flaw? I think the American scene could use Herbert Spencer today. He’s refreshing! Behold: “Let men learn that a legislature is not ‘our God upon earth,’ though, by the authority they ascribe to it, and the things they expect from it, they would seem to think it is. Let them learn rather that it is an institution serving a purely temporary purpose, whose power, when not stolen, is at the best borrowed” (emphasis added). Brilliant! Thus, “The first condition to be conformed to before a legislature can be established without violating the law of equal freedom, is the acknowledgment of the right now under discussion — the right to ignore the state.”

He goes on to use the democratic-republican’s own principle to establish his point: “[T]hey who maintain that the people are the only legitimate source of power — that legislative authority is not original, but deputed — cannot deny the right to ignore the state without entangling themselves in an absurdity.”

But haven’t the governed consented?

Perhaps it will be said that . . . the citizen is understood to have assented to everything his representative may do, when he voted for him. But suppose he did not vote for him; and on the contrary did all in his power to get elected someone holding opposite views — what then? The reply will probably be that, by taking part in such an election, he tacitly agreed to abide by the decision of the majority. And how if he did not vote at all? Why then he cannot justly complain of any tax, seeing that he made no protest against its imposition. So, curiously enough, it seems that he gave his consent in whatever way he acted — whether he said yes, whether he said no, or whether he remained neuter! A rather awkward doctrine this. Here stands an unfortunate citizen who is asked if he will pay money for a certain proffered advantage; and whether he employs the only means of expressing his refusal or does not employ it, we are told that he practically agrees; if only the number of others who agree is greater than the number of those who dissent. And thus we are introduced to the novel principle that A’s consent to a thing is not determined by what A says, but by what B may happen to say!

Indeed, Charles Johnson, a Freeman contributor, argues that consent is not possible if withholding consent is not possible. “If there is no effective possibility of refusal, then there is no possibility of publicly expressing consent, and if there is no possibility of publicly expressing consent, then there is no possibility of consenting,” Johnson writes.

Alas, in the end, Spencer backs away from his case.

Let not any be alarmed, therefore, at the promulgation of the foregoing doctrine. There are many changes yet to be passed through before it can begin to exercise much influence. Probably a long time will elapse before the right to ignore the state will be generally admitted, even in theory. It will be still longer before it receives legislative recognition. And even then there will be plenty of checks upon the premature exercise of it. A sharp experience will sufficiently instruct those who may too soon abandon legal protection. Whilst, in the majority of men, there is such a love of tried arrangements, and so great a dread of experiments, that they will probably not act upon this right until long after it is safe to do so.

Be that as it may, Spencer raises a challenging question, one worth thinking about as our misrepresentatives in Congress prepare to impose on us in a very big way.


  • Sheldon Richman is the former editor of The Freeman and a contributor to The Concise Encyclopedia of Economics. He is the author of Separating School and State: How to Liberate America's Families and thousands of articles.