The Nature of the Legislative Branch

Will Wilkinson:

"Governments use coercion to make things happen. Government coercion can be legitimate, but it has to meet certain conditions. One of the traditional conditions is that a majority of the citizens who are going to be coerced, or a majority of their representatives, have to agree to it. However, if policies are structured so that we can’t see whether or how we are being coerced, then we can’t freely endorse them in the democratic process. So those policies fail the test of legitimacy."

I like this way of looking at government's coercive nature. I often talk with my students about the normative frameworks that might be used to define the legitimate use of government's coercion. I've also asked students to consider whether force is ever legitimate in their daily lives. In general, it is wrong to use force or coercion against another person (or their property). However, force is generally considered legitimate when used in self-defense. This is one way to explain the role of government as the protective state, i.e., government with the purpose of reducing the harm some people would do to the person or property of others.

I often also ask if there are normative grounds for thinking that government can legitimately use force in our lives that go beyond government as the protective state. Wilkinson describes one answer to this question. That is, if those (or their elected representatives) who are going to be coerced by government agree to that coercion. This leads him to a test of legitimacy, which is that those who would be coerced are able to see and understand the ways in which government's policy would bring force to bear on their own choices. I think this makes a good deal of sense.

However, there are at least a couple of concerns, and they may both point to the same resolution. I think even when a majority of those who would be coerced agree to the government policy, there is still the possibility of "tyranny of the majority." I don't think transparency is a principle that protects against this tyranny. Wilkinson points to the second concern, which I often describe as the inherent nature of legislatures:

"Politicians want to get re-elected. If they can subsidize interest group A at group B’s expense without group B really noticing due to the hidden transfer, then that will sound like a real winner to a politician. Which is just to say that the incentives politicians face encourage them to violate the very conditions of transparency and public justification that make their coercive powers legitimate. That sounds like a problem to me."

It sounds like a problem to me as well. It seems to me that the essence of this problem of democratic systems of political economy is one that has long been known because I think this is the problem of "factions" which James Madison explained in Federalist # 10. Here is Wilkinson's discussion of an answer to this problem:

"Politicians would have a constant incentive to try to violate and work around an explicit transfer requirement. Which is exactly why we need one. It would give anyone in the group from which resources are being appropriated standing under the Constitution to file suit in order to repeal the law licensing the hidden transfer. The whole class wouldn’t need to notice the hidden transfer, and then fight it off politically."

I think this idea is a significant aspect of dealing with the inherent rent seeking nature of legislatures. I also think our system of political economy already includes the means by which an individual can file suit to end a law that would make it legitimate to use government force to create a transfer. Historically, the Supreme Court often found such laws unconstitutional, and this was especially true during the era of "economic due process." Unfortunately, the economic due process era was replaced by a constitutional jurisprudence that often, perhaps most often, validated, rather than constrained, the rent seeking nature of legislatures.

I wrote above that my two concerns were perhaps resolved in the same way. What I have in mind here is that the specific nature of our Constitution answers both concerns. First, when we consider Congress, our Constitution says the Congress has only specifically enumerated powers. The list of enumerated powers is found in Article I, Section 8, and the ratification of this list of enumerated powers required (and changes today require) a super majority vote. The requirement of a super majority vote for putting something in the Constitution as an enumerated power is a reasonable practical way of minimizing the opportunity for "tyranny of the majority." Of course, Congress may always pass legislation that is inconsistent with the enumerated powers. If this happens, then an individual may respond by challenging the constutitionality of the statute.

The Bill of Rights includes the 9th and 10th Amendments, both of which seem to me to protect individual liberty from the rent seeking nature of the Congress. Specifically, both amendments would seem to provide the means by which an individual can challenge the constitutionality of Congressional legislation, not just on the grounds of lacking an enumerated power, but also on grounds that the legislation amounts to government force in areas of our lives we consider part of our personal realm of individual liberty. This realm seems to me to include protection against the transfers Wilkinson is concerned with, and against rent seeking more generally.

It is unfortunate that our system of political economy seems not to function in this way in general. With respect to issues that involve free speech, our system does function reasonably well in this way. But, in the realm of economic liberty, it does not function this way in general these days. Why?

It seems to me that the answer here depends on understanding that both the legislative and the executive branches of government see similar incentives with respect to rent seeking. Both branches see few, if any incentives, to be concerned about "tyranny of the majority," to be concerned not to use government's coercive power to give to some at the expense of others.

If there is to be a branch of government that sees it's role as protecting individual liberty, then there is only the judicial branch left to do this. I suggest that too many Supreme Court Justices since the "economic due process" era have lost the sense that the role of the judiciary is to protect individual liberty in all aspects. Perhaps hoping for Justices to see this as their role is rather utopian? However, this does seem to be the role Justices generally see for their work when considering matters involving free speech, as well as other "civil liberties." It is also a role many Justices accepted with respect to economic liberty prior to the end of the "economic due process" era. And, there are Justices on the Court at present who seem, on the whole, to accept their role in our system of political economy as protecting individual liberty in general, including economic liberty.

It seems to me that the Constitution as written would work well to protect liberty, but only if those in the Judicial Branch of government accept the idea that their job is to protect liberty in all aspects. If Justices do not accept this role, then I'm not sure there is a way to answer these two concerns about government's coercive nature.