The Myth of the Perfect Solution; R. Foley, Jr.

105 106 THE FREEMAN February On the other hand, the volun tarist who believes in the freedom philosophy! may likewise be snared by a related delusion. At the foun dation, the exponent of freedom may comprehend man's finiteness. At the same time, he may continue a relentless quest for a positive, conclusive form of government which will necessarily secure the fruits of freedom to the governed. 2 I conclude against the existence of a perfect form of the state which will positively .protect . the individual from excesses of power. This essay explores this myth which may delude both the free dom exponent and the statist. 1 I use the terms "voluntarist," "liber tarian," and "exponent of the freedom philosophy" interchangeably. By these words, I mean a person who adheres to the concepts of private property, limited govern men t, free market economics, and individual self-determination, one who believes that the state is properly limited to promotion of common justice and pro tection of the individual from force and fraud by internal predators or external aggressors.

2 The Declaration of Independence, in salient part, forms the basis of the liber tarian philosophy and suggests the obli gation of government should be limited to securing personal freedom: "We hold these truths to be self evident, that all men are created equal, that tJaey are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happi ness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, ***." The Search for Sovereignty to Best Assure Individual Freedom Sovereignty represents the threshold inquiry. Where does, or should, sovereignty reside to best assure individual freedom? Sov ereignty may be defined as the su preme power in a body politic. 3 Cursory reflection reveals that ul timate power of organized force must have a residence. In a milieu of anarchy or civil chaos, sover eignty constantly shifts, resting with the most currently powerful individual or clique. In a society controlled by organized govern ment, sovereignty (the ultimate government power) must dwell in some individual or group ulti mately controlling the coercive force of the state. That ruling force may be called a political party, a politburo, a king, a legis lature, a privy council, or by any number of other names. Whatever its denomination, it is the ultimate repository of organized force in society.

The libertarian fears organized coercion; he recognizes that, de spite good intentions, the monopoly of force provides fertile ground for misuse of power to the detri ment of individual freedom. Chief Justice Roger Taney summed up 3 Webster's New International Dic tionary, third edition, unabridged (G. & C. Merriam Company, Springfield, Massachusetts) 2179.

1973 THE MYTH OF THE PERFECT SOLUTION 107 the problem succinctly over a cen turyago: It is said that this power in the President is dangerous to liberty and may be abused. All .power may be abused if placed in unworthy hands. 4 Thus, the essential libertarian con cern considers limitatioris on· the use of state power wherever sov ereignty resides, since exertion of the law beyond its proper boun daries necessarily curtails liberty. 5 Institutional Barriers to the Misuse of Power To solve this concern, the liber tarian searches for the location of sovereignty in the society in which he lives. Having determined where sovereignty abides, he often de votes his efforts to the erection of barriers designed to limit the sov ereign and, hopefully, to inhibit the misuse of power. Consider the American scene. The Founding Fathers greatly agonized over limitations on gov ernment, having lately removed the young states from the grip of royal and parliamentary despo tism. They constructed intricate 4 Luther v. Borden, 17 U.S. (7 How) 1, 12 (1849).

5 See Foley, Ridgway K., Jr., "Indi vidual Liberty and the Rule of Law" 21 Freeman No.6, 357-378 (June 1971), and 7 Will. L,. J. 396-418 (Dec. 1971), wherein I have attempted to analyze proper and improper uses of law. governmental institutions, sepa rating and dividing power, check ing and balancing the use of coer cive force. Thus, for example, the House of Representatives wields the power of the purse; the Sen ate advises upon, and· consents to, various executive appointm.ents; the two houses of Congress must concur in the passage of legisla tion; the President proposes legis lative acts, and executes them after passage; the Supreme Court may declare an act of .Congress unconstitutional (beyond its pow er); lifetime appointments are made to the Supreme Court, with good behavior, without reduction in salary, by the Chief Executive, upon the advice and consent of the Senate; election to legislative and executive office occurs in staggered terms of 2, 4, or 6 years. In addi tion, power is further. fragmented between the national government and the several states (division of power) and most state govern ments contain, on their own level, additional checks and balances. 6 Fragmented Power The American system posits the premise that diffused power poses 6 Of course, this cursory summary is not intended to be an exhaustive analysis -of the system of checks and balances, di vision of power, and separation of power.

Entire treatises have considered these conditions and provisions. The statements in this paragraph are intended as illus trative only.

108 THE FREEMAN February less danger to individ ual freedom than concentrated coercive force. Liberty could survive handsomely under an enlightened monarch or unitary council, if the possessor of power limited the role of the state to its appropriate functions. His tory .teaches the unlikelihood of this condition. It offers the col lateral lesson that fragmented power, diffused among several in dividuals, entities, and institutions, may more likely retard abuse and salvage freedom. Have They Worked? Review American history. Has this system of checks and balances wrought preservation of. freedom and limitation of the state? Sadly, the objective observer must re spond negatively. The Supreme Court early usurped the power to declare congressional acts uncon stitutional under a rule of "neces sity";7 this self-serving doctrine of judicial supremacy could be checked by congressional removal of jurisdiction, or by more explicit legislation, or by constitutional amendment, but none of these de vices have yet achieved the needed limitation. Thus, the Federal courts proceed to judicially legis late, oblivious to constitutional re straints and unanswerable to the electorate. Using shibboleths like 7 Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803).

"state action,"8 "affected with the public interest,"9 and the like, the judiciary has imposed upon the body politic concepts of economics, morals, and sociology which sat isfy the particular jurists but few others. One ·can measure whether we are in a nation of laws, not men, by comparing the change in judicial policy evoked in four years by four additions to the United States Supreme Court po Assaults Upon Liberty Again, legislative action in a bi furcated Congress has proved no savior of liberty. Political deals, use of odius riders upon needed legislation, the artifice of pork8 But see Moose Lodge No. 17 v. Irvis, Supreme Court Bulletin B2734 (June 12, 1972), and Lloyd Corp., Ltd. v. Tanner, Supreme Court Bulletin B3140 (June 22, 1972), where the Court has taken a much desired backward step from the govern mental expansive concept of "state ac tion." The philosophical defects and lib ertarian antidotes to'this freedom emas culating tenet deserve a separate essay.

9 Munn v. Illinois, 94 U.S. 113, 24 L. Ed. 77 (1876). 10 The author holds no brief for Chief Justice Burger and Associate Justices Blackman, Powell and Rehnquist as lib ertarians in the sense used here. Indeed, their decisions reveal a singular ambiv alence and inconsistencies so typical of those not endowed with any consistent philosophy of freedom. (Mr. Justice Rehnquist may prove the exception to this broad statement.) Nevertheless, no one can deny that these men, "conservatives" at least in the traditional sense, have worked a major change in the jural fab ric of our nation.

1973 THE MYTH OF THE PERFECT SOLUTION 109 barrel politics, and bottling up bills in committee for mean and venal ends have persisted since the nation began. Members of Con gress display an increasing tend ency to voice freedom and econ omy at the same time that they vote repressive and uneconomic bills into law. The checks and bal ances designed to encourage ma ture reflection have not fared well. Finally, the executive branch of government has contributed to the decline .of freedom. Not the least of its sins has been the appoint ment of persons to public office lacking in any appreciation of in genuity and the desirability of maximum individual freedom. Again, the constant inordinate de mands upon the legislative branch to legislate in all nooks and cran nies of human existence can only induce and achieve the lessening of human creati vity. Nor has the division of power between the states and national government protected the citizenry from the assault upon their lib erty. The original premises of the nation included (1) control of gov ernment by those closest to it; (2) strictly delegated or limited func tions of the government; and (3) the in.dividual states as incubators of political theory. Nevertheless, two hundred years reveal the con stant usurpation of power by the general government, a corresponding increase· in activities by both state and nation, a loss of direct control by the electorate, and a continuing assault upon political variation and a growth of the orthodoxy of mediocrity.

The Trap of the Constitutionalism Response If the present system fails to preserve freedom, rationallY one should inquire whether any other system might provide that sought after perfect solution. At this point the libertarian may be en snared by the trap laid by the myth. For lack of a better phrase, we may term this delusion the constitutionalism response. The advocates of the constitu tionalism response recognize that carefully formulated institutions devised by the Founding Fathers have failed to achieve the sole viable end of government: human freedom. They comprehend that the most carefully conceived insti tutions may decline, even in a de mocracy or republic, where 51 per cent of the voters can ravage the remainder by ballot fiat. Yet their rejoinder is to propose more care fully constructed constitutional provisions. How often have you heard a strong libertarian utter the cliche, "There ought to be a law against (or compelling) - -"?

I have perceived even kindred souls suggesting that reading 110 THE FREEMAN February Bastiat's The Law should be man datory! A contradiction in terms. The constitutionalism response suffers from twin deficiencies. It rests upon the fallacious premises that (1) it is desirable to legislate (read: coerce) others to conform to this chosen· mode of behavior and (2) it is possible to legislate proper conduct, and even to de fine the content of such conduct. These premises, in turn, rely for support upon the arrogant assump tion that some man (or group of men) is better able and equipped to determine the destiny of other men, so that it is proper and de sirable that the former compel the latter~ A subsidiary false as sumption presumes that any man is even privileged to make this decision about another. Just· Ends and Coercive Means Reduce the problem to simple terms. Am I better qualified, by intrinsic worth, brains, or talent, to judge how my neighbor should conduct his life, even in the small est particular? Stated in thes.e terms, a negative rejoinder seems prudent. Yet, I violate that con clusion every time I coerce my neighbor into paying Social Se curity against his will. Recognize that I may have his best interests at heart: he does not spend his money wisely and I fear he will wind. up a destitute and unhappy old man. Besides, Social Security really costs him very little and this represents, indeed, a small particular since I leave my neigh bor his freedom in other arenas.

Nothwithstanding these rationali zations, no circumstance justifies my ordering my neighbor's des tiny, even ,in minute instances, . save one: to prevent the use of force and fraud against free men and for the promotion and admin istration of common justice. In fact, it is the height of arrogance for me to even claim the privilege of making this decision for my neighbor. Of course, logic patently demonstrates that if I am not in dividually privileged to restrain my neighbor, neither am I entitled to coerce him by banding together with my fellows, either to form a majority or a ruling claque. Ac tion under the imprimatur of ma jority rule may soothe the super ficial conscience, but it renders the evil deed no less evil. Observe where the constitution alism response first failed - at the point where the libertarian advo cates the use of nonlibertarian methods to produce a. "desirable"

result. You may agree that the world would be 'a better place if all men memorized Bastiat's The Law. I suggest that such a desir able end should not be produced by threat of death to all those who fail in this endeavor. Such an edict 1973 THE MYTH OF THE PERFECT SOLUTION 111 would violate the very principle sought to be achieved. On a less violent scale, the constitutionalism response proposes to correct inj us tice and restraint by the use of or ganized force'- "There ought to be a law." If ends preexist in means, such propositions are doomed to failure. The Art of the Possible Most libertarians successfully hurdle the first deficiency. More of us stumble upon the second: the possibility of achieving desired ends by legislative or constitu tional reform. I propose two axioms: first, the Founding Fathers more nearly ap proached the ideal of human free dom tllan any other group of men, and that they constructed an .in tricate fabric (the Constitution) upon which to maximize individual liberty. Second, the condition of freedom has rapidly deteriorated despite this philosophy and pro tection. Given these premises, what can be done to better our condition? Is it possible to write a better constitutional answer?

I suggest that while improve ment might be made in our Con stitution, no man-made vehicle can possess perfection. Just as finite man is fallible, so also are his words, works, and institutions. The problem' is complicated by the nature of language. Words provide poor vehicles for transporta tion of concepts. Concepts contain the amount of precision and per fection injected by the perceiver; the perceiver is finite. But the per ceiver may arrive at something close to perfection in his mind, yet be deterred or obstructed in con veying his thoughts_ to a listener or reader by the sheer clumsiness of language. Words possess shades and varia tions of meanings. Meaning and content differ from man to man. The classic intra-libertarian in tellectual struggles bear ample wit ness to the fact that even persons in basic agreement in principle may contest in context. Differences in Interpretation For example, I. may say that the state should limit its activities to the prevention of force and fraud, to the protection of its citizens from internal violence and exter nal aggression, and to the promo tion of common justice. You may agree. You know these words and you understand their common sig nification; to you, the content is sound and we affirm our harmony.

Yet this accord may dissipate rapidly when we apply my broad statement to concrete situations, or when we test it by definition or analysis. We may agree in princi ple and thus form a consensus, but disagree in application. Con112 THE FREEMAN February sider fraud. To a lawyer, fraud possesses a stylized jural meaning: it is a material representation, false in fact, made by a party when he knows that it is false or made recklessly by that party without knowledge of its falsity and as a positive assertion, made with the intention that it should be acted upon by that other person in reliance and to his detriment. ll I may mean the government shall only penalize active legal fraud as defined by the court; you may con ceive of fraud as something quite different, incorporating common (and just) senses of indignation against a more wide-r"lnging and invidious type of deception. Any general definitional term may divide us when we seek to apply the rule to specific situations.

A constitution resembles the in stance set forth in the last para graph. By nature, constitutions are fundamental, basic documents. They are full of open-textured con cepts which possess many inter pretational interstices. As our Hfraud" analysis demonstrated, words are susceptible to many meanings. General agreement can be achieved at the core; less agree ment will hold sway at the penum bra. For example, most of us would agree that it is fraudulent for a used car dealer to affirmatively tell 11 See, e.g., Amort v. Tupper, 204 Or. 279,282 P. 2d660 (1955). a buyer that the subject vehicle has only been driven 10,000 miles when in fact the dealer set back the speedometer from 50,000 miles himself that very morning, at least if the buyer believed the dealer, bought the car in reliance upon his affirmation, and was harmed by the misstatement. We might have a much more difficult time in reaching a consensus of fraud in a case where a seller conveyed a new vacu um cleaner to a buyer upon the affirmation that the machine was manufactured in Yuma, when in fact it was made up of parts made in Yuma but assembled in Flagstaff.

Two examples of open.,.textured phrases from the present Consti tution sufficiently manifest this intrinsic deficiency appearing in that essential document. The states granted Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."12 Scholarly analysis dem onstrates that the draftsmen in tended to grant to Congress the power to inhibit trade barriers be tween states such as plagued the nation under the Articles of Con federation. Yet the Federal gov ernment has used this little clause as the basis for usurpation of a vast range of human action by im12 United States Constitution, Art. I, § 8, Cl, 3.

1973 THE MYTH OF THE PERFECT SOLUTION 113 plementation of restrictive legis lative and judicial decisions. A similar flagrant linguistic misuse concerns the "general welfare"13 clause of the preamble which has been tortured beyond belief. History thus proffers a clear les son to be learned: no matter how clear and precise a constitution may be, there exists no guarantee that succeeding generations of po liticians and judges will not distort the phraseology, history, and meaning to their own ends, which usually involve the assumption of greater power to the state. I chal lenge whether it is possible to draft a constitution which will withstand the ravages of "un worthy" men. 14 The Solution I tender no perfect solution. None exists. I do offer a solution which may not be wholly palatable to today's activists who are ag13 United States Constitution, Preamble: "We the People of the United States in Order to form a more perfect Union, establish Justice, insure 'do mestic Tranquility, provide for the common defence, promote the gen eral Welfare, and secure the Bless ings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

14 See Footnote 4. The Soviet Consti tution, in many respects, appears to be a most liberal instrument, yet witness the depredations wrought in that family of nations. grieved by the miasma wrought by governmental intervention. That solution is persuasion and reliance upon enlightened men. The concept ~f limited government requires, in final analysis, an agreement upon basic principles of limitation and the good faith of all citizens who participate in the body politic. Legislators and executives can be elected with a majority mandate to overturn or ignore basic prin ciples ;15 judicial officers can mis read a constitution or a statute. The sole viable solution is to edu cate and persuade an increasingly greater number of men to act in harmony with the principles of the freedom philosophy both in their pri vate lives and as public servants. 16 The nature of the solution should not deter us from seeking after perfection. It does not mean we should desist from ruffling lib15 I am reminded of Dr. Poirot's recent article "Who Should Vote?" 21 Freeman No.2, 120-124 (February 1971) wherein he discusses, inter alia, potential limita tions upon the franchise to the end that freedom might better survive. I do not disagree necessarily with some of his ex cellent ideas, I merely point out that franchise limitations pose no insurmount able barrier to the statists who convince the electorat~ that plunder is proper. En lightened freemen provide our sole effec tive recourse in final analysis.

16 Insofar as the method of education and persuasion consistent with the free dom philosophy is concerned, I defer to the writings of Mr. Leonard Read who has given this subject much consideration.