Freedom and Majority Rule
by Edmund A. Opitz
Lord Northcliffe, 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 he 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 18th 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The 18th Amendment was repealed by passage of the 21st Amendment in 1933.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 legal switcheroo occurred, 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. We've been going by dead reckoning for too long, and our dumb luck has just about run out.
Our present subject is political philosophy. This is a complex subject, so we shall do no more than ponder the first step. The big question in any serious theory of politics is to decide what's political and what's private. In a totalitarian nation there is no sector of life which is intrinsically private; the whole of life is politicized. The State controls economic life; there is a State Church; there is a controlled press; the schools are all run by government. Big Brother oversees every activity. When people in such a nation decide to move in the direction of a free society, they do so by carving private sectors out of what had hitherto been 100 percent public.
You're all familiar with the division of society into the private, voluntary sector, in contrast to the public, governmental, coercive sector; and you know that "the history of liberty is the history of the limitations placed upon governmental power." It is obvious that the more things the law commands you to do the fewer the things you may do freely, on your own initiative. If the public, governmental sector extends over 50 percent of the society, this means that the people of this society, are half free and half unfree. We become freer only as we limit government to its proper competence. But what is government's proper competence?
In the 18th century they put the question as follows: What shall be the extent of rule? This is the fundamental, primordial question in political philosophy, but we'd phrase it differently. What are the functions appropriate to the political agency? we would ask. What is the role of the law? 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?
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 other approach, the one favored by our ancestors, was to think about the matter, employing relevant intellectual and moral considerations in order to decide what the law should and should not do. The backbone of every legal system is a set of prohibitions, a series of "Thou Shalt Not's." The law forbids certain actions and punishes those who persist in them, so we need to know what actions should be forbidden. Our moral code prescribes what not to do, so the solid core of any legal system is the moral code, which, in our culture is conveyed to us by the Mosaic Law: the Ten Commandments. The Sixth Commandment of The Decalogue says: "Thou shalt not commit murder," and this moral imperative against murder is built into every statute which prescribes punishment for homicide. The Eighth Commandment says: "Thou shalt not steal," 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 for his own survival he has to become the property of someone else-a slave. The master-slave relation is a violation of the rightful order of things, the rightful order being individual liberty and voluntary association.
The Gift of Life
We've taken care of the right to life and the right to property; what about liberty? Reflect on the fact that every human being has the gift of life, and each of us is charged with the primary responsibility of bringing his own life to completion. Each one of us is also a steward of the earth's scarce resources, which we must use wisely and economically. In short, we are responsible beings. But no person can be held responsible for the way he lives his life and conserves his property, unless he is free. Responsibility-Freedom; two sides of one coin. 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 18th century. Life, Liberty, and Property are potent ideas because they transcribe into words an important aspect of the way things are.
Our ancestors founded their legal and moral codes on the nature of things, on what they believed to be real-just as students of the natural sciences frame their scientific laws to describe the way things behave. For example: physical bodies throughout the universe attract one another; the attraction increases with the mass of the attracting bodies and diminishes with the square of the distance between them. This has always been so, but it was Sir Isaac Newton who made some observations along these lines and gave us the law of gravitation. 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 against the inverse-cube in this instance; precisely as this same universe is prejudiced against murder, has a strong bias in favor of property, and wills that men and women 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. The Creator is also the Author of our being and requires certain duties of us, his creatures. There is, thus, a reality outside of us joined to the reality within, and this twofold reality-inner and outer-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 may be disobeyed. We consult certain portions of the exterior 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.
The point, simply put, is that our forebears, when they wanted some clues for regulating their private and public lives, anchored their beliefs in a reality beyond society and superior to government. They thought their way through to the idea of a sacred order which overarches the world-the order of creation. They figured out 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 politically, 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 self-professed liberal and the author of several highly touted books, including 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 bother to think; just 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's 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 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 percent plus 1. But if you were to draw up an equation to diagram modern majoritarianism it would read:
50% plus 1 = 100, 50% minus 1 = O
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 of 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 250 million of us; but society and government are not at all the same entity. Society is all-of-us, whereas the government is only some-of-us. The some-of-us who make up 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 all the institutions of society; society has bestowed upon this one agency, government, the exclusive right to use legal force in specified situations. Governments use persuasion and they employ advertising technicians and public relations experts. They invoke the symbols of authority, legitimacy, and tradition-as do institutions like the Church and the School. But only one agency has the power to tax; only one agency has the authority to operate the system of courts and jails; only one agency has a warrant for mobilizing the machinery for making war; and that is government, the power structure. Monarchy, aristocracy, democracy-it doesn't matter. Governmental action is what it is, no matter what rationale 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.
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, 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 belabor 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 here is the power of man over man; government is the legal authorization which permits some men to use force on others. Whenever 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 the nature of government determines what government can accomplish. When properly limited, government uses lawful force to annul violence and redress injury, thus limited government serves a social end no other agency-call it what you will-can achieve. But when the proper limits are overstepped, a government's use of force is destructive. The alternatives here are defensive force versus aggressive force; or law versus tyranny-as the Greeks would have put it. Here's how Aeschylus saw it in his drama The Eumenides: "Let no man live uncurbed by law, nor curbed by tyranny."
The Moral Code
If the political agency 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 is the essential function of government, then, in harmony with the moral code, to use lawful force against criminals in order that peaceful citizens may go about their business. The use of lawful force against criminals for the protection of the innocent is the earmark of a properly limited government. Standing in utter contrast is the State's use of tyrannical force on peaceful citizens-whatever the excuse, or whatever the rationalization. It's the contrast between defense and aggression, between the rule of law and oppression.
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 never be used for private advantage; it should not be used to protect people from themselves. Well, then, what should the law do to peaceful, innocent citizens? It should let 'em 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 that 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 life 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 thus played off against power, to the advantage of the populace.
The most important social value in Western civilization, historically, is the idea of individual liberty. The human person was 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. This is our inner, spiritual freedom and it 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, and the rules must be designed to maximize liberty and opportunity for everyone.
Now, unless we are persuaded of the importance of freedom to the individual, it is obvious that we will not bother to structure government around him to protect his private domain and secure his rights. So, the idea of individual liberty is the key. This idea is as old as Christianity but it was given a tremendous boost in the 16th century by the Reformation and the Renaissance. The earliest manifestation of this renewed idea of individual liberty was in the area of religion, issuing in the conviction that every person should be allowed to worship God in his own way. This religious ferment in 16th-century England gave us Puritanism. Early in the 17th-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. 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.
Ten amendments to the Constitution were adopted in 1791. Article the First reads: "Congress shall make no law respecting an 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 18th-century Whiggismwhich came out of the 17th-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 dismissed by contemporary liberals as "18th-century ideas." What a dumb comment! The proper test of an idea is the test of truth. Is the idea sound, does it hold water? You do not judge the quality of an idea by pigeonholing it in a particular time slot; you don't dispose of an idea by relegating it to the historical period when the idea emerged and became influential. But this is a typical liberal tactic.
The Proper Role of Government
Our discussion has focused on the nature of government, and we have come to realize that government is society's power structure constitutionally authorized to use legal force in certain last-resort situations. Once this truth sinks in we take the next step, which is to figure out what functions are properly 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 each human being has maximum opportunity to achieve his proper destiny. This is the thesis of Classical Liberalism, and I buy it.
There's a second political question to resolve, tied in with the basic one, but much less important: How do you choose personnel for public office? Once you have employed the relevant intellectual and moral criteria and confined public things to the public sector, leaving the major concerns of life free in the private sector . . . once you've done this there's still the matter of choosing people for public 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 may 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 for exercising the franchise, 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 today 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, determining the proper role for government 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 in political philosophy has to do with the scope and functions of the political agency. 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-making-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 a century and a half 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 not shatter the wills of men, but merely soften and bend them. It 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 today 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. Formula for present-day liberalism: "Somebody's program at everybody's expense!"
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." The politics of a nation 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 . . . such people can inspire the multitude whose ideas are too vague to generate convictions one way or another. A little leaven raises the entire lump of dough; a small rudder turns a huge ship. And a handful of people possessed of ideas and a dream has got hold of the handle which can turn a nation around-especially a nation that is searching for new answers and a new direction.
The Reverend Mr. Opitz is 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.
This essay is adapted from an article that appeared in the January 1977 issue of The Freeman.
This article is from The Freeman, August 1992.
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