If you want to know how representative government works not in airy theory but on the ground, contemplate these facts: (1) Except perhaps for the rarest exception, no member of Congress will have read the entire final 1,000-plus-page bill that seeks, in the New York Times’s words, to “reinvent the nation’s health care system”; and (2) in July the Obama administration strove mightily to rush the members of the House and Senate to vote on this monstrosity before their August recess.
Why are these things important? Under the circumstances that these and myriad other facts describe, how could one seriously maintain that “health-care reform” is the product of representative government? The failure of members of Congress to read voluminous bills written in obscure legalese is notorious (cap-and-trade is another example), though the “serious” blatherers who inhabit cable news-talk shows seem never to take it as a serious blow to the “democracy” they wax so enthusiastic about.
Similarly, the rush to a vote on something as complicated as an overhaul of 15 percent of the U.S. economy — and something as serious as medical care — betrays a lack of commitment, shall we say, to representative government. One would think that devotees of democracy would have scheduled such an important vote after a recess precisely so that the members could consult their constituencies.
So what does it say about the Obama administration that it pressured Congress to vote before the recess for fear that contact with constituents away from Washington was likely to produce more nays than yeas once the members returned?
In fact, while the public say they want government to assist the medically uninsured if the increase in taxes isn’t too much, most people are satisfied with their own coverage. Support for an overhaul is weaker than it was in 1993, when the Clinton plan failed. People’s fears about Obama’s “reform” of medical care center on the threat to their own coverage and the rising budget deficit. Obama apparently didn’t want members of Congress to hear those concerns voiced at constituency gatherings before voting on the package.
What that demonstrates is that the political leaders’ commitment to representative government is more show than substance. Town-hall meetings (filled with supporters) make good photo ops for Obama, but don’t think that he wants ordinary people actually to influence the process.
The myth of representation
Not that this should surprise anyone. It’s always been a dubious proposition that members of Congress represent anyone but themselves. Of course, they must give the voters in their states or districts reasons — or apparent reasons — to reelect them but that is not the same thing as representation. The average congressional district has more than 600,000 people. The populations of the states range from about half a million (Wyoming) to 36.7 million (California). How is a member of the House or Senate really to represent such large and diverse groups? Can he possibly know more than a few? Except for the most abstract matters (“freedom,” “justice,” “prosperity”), is there likely to be substantial agreement on anything? What does it mean to say that members of Congress should represent their constituencies’ wishes on health-care reform? Which ones?
Even where there is substantial agreement, the chances of unanimity are scant. Yet the minority will have to go along with the majority no matter how much it dislikes the prevailing view. Clearly, the members of that minority are unrepresented. For all intents and purposes, the majority has all the votes and the minority has none. In the principle “majority rule with protection for the rights of the minority” there is less than meets the eye.
Thus, the late libertarian legal theorist Bruno Leoni wrote in an essay included in the expanded edition of Freedom and the Law,
[In] assuming that 51 voters out of 100 are “politically” equal to 100 voters, and that the remaining 49 (contrary) voters are “politically” equal to zero (which is exactly what happens when a group decision is made according to majority rule) we give much more “weight” to each voter ranking on the side of the winning 51 than to each voter ranking on the side of the losing 49.
This is not to say that the theory of representative government, or popular sovereignty, plays no role of importance in our society. On the contrary, the role is critical to sustaining the political system as it operates today. A respected mainstream historian of America’s revolutionary period, Edmund Morgan, shows in his newest book, American Heroes: Profiles of Men and Women Who Shaped Early America, that the theory was intended to persuade the population to put up with things — intrusive law and taxes — that they might not have put up with otherwise. In any political system, the number of rulers is far smaller than the number of ruled. Why should people pay taxes and do what they’re told? They may decide not to — unless they are persuaded that what the government does is done not only in their interest but in their name, that they are the ultimate rulers. In that sense, all government rests on the tacit consent of the governed, dictatorships no less than democracies.
“The few who govern,” Morgan writes,
take care to nourish those opinions [to sustain their consent] and that is no easy task, for the opinions needed to make the many submit to the few are often at variance with the facts. The success of government thus requires the acceptance of fictions, requires the willing suspension of disbelief, requires us to believe that the emperor is clothed even though we can see that he is not. [Emphasis added.]
Fictions. Strong language, but isn’t Morgan on to something here?
“Representation began in England as a mode of ensuring consent to the king’s government,” he writes.
The king summoned representatives from counties and boroughs to come to his Parliament armed with powers of attorney to bind their constituents to whatever taxes or laws they agreed to. [The representative’s] consent, given in Parliament, had to be as much theirs as if they had come in person. “As if.” Representation from the beginning was a fiction. If the representative consented, his constituents had to make believe that they had done so.
The rulers and the ruled
Another fiction is that the representatives are members of the ruled — not the ruling — class, just like their constituents. But who believes that? “The sovereignty of the people was an instrument by which representatives raised themselves to the maximum distance above the particular set of people who chose them,” Morgan adds. “In the name of the people they became all-powerful in government, shedding as much as possible the local, subject character that made them representatives.”
He notes that popular sovereignty plays the same role as the divine right of kings played:
And just as the exaltation of the king could be a means of controlling him, so the exaltation of the people can be a means of controlling them…. In locating the source of authority in the people, they [“the men who first promoted popular government”] thought to locate its exercise in themselves. They intended to speak for a sovereign but silent people, as the king had hitherto spoken for a sovereign but silent God.
Thus, Obama’s rush to pass health-care reform in such a flagrantly anti-democratic way rips the veil from the fiction of popular sovereignty. What will be done in their name will be done whether the people like it or not. He no doubt is counting on persuading the voters later that he has done a good thing. But even some congressional Democrats seem worried about whether that effort will succeed.
Representation and central planning
Bruno Leoni analyzes the fiction of representation further by comparing it to central economic planning. “[There] is much more than an analogy between a planned economy and legislation,” he wrote. By that he meant that 535 legislators’ making rules for a large, diverse, and complex society is equivalent to central planners’ arranging the production of goods and services. “[A] legal system centered on legislation resembles … a centralized economy in which all the relevant decisions are made by a handful of directors, whose knowledge of the whole situation is fatally limited and whose respect, if any, for the people’s wishes is subject to that limitation.”
This is a brilliant point that is woefully underappreciated. How can the legislature presume to make rules for everyone, ob livious to differences in local circumstances, interests, and knowledge — rules so rigid that individuals are forbidden to waive or contract around them?
“No solemn titles, no pompous ceremonies, no enthusiasm on the part of applauding masses,” Leoni wrote,
can conceal the crude fact that both the legislators and the directors of a centralized economy are only particular individuals like you and me, ignorant of ninety-nine per cent of what is going on around them as far as the real transactions, agreements, attitudes, feelings, and convictions of people are concerned…. The mythology of our age is not religious, but political, and its chief myths seem to be “representation” of the people, on the one hand, and the charismatic pretension of political leaders to be in possession of the truth and to act accordingly, on the other.
Adam Smith had the same insight in rejecting mercantilism:
What is the species of domestic industry which his capital can employ, and of which the produce is likely to be of the greatest value, every individual, it is evident, can, in his local situation, judge much better than any statesman or lawgiver can do for him. The statesman who should attempt to direct private people in what manner they ought to employ their capitals would not only load himself with a most unnecessary attention, but assume an authority which could safely be trusted, not only to no single person, but to no council or senate whatever, and which would nowhere be so dangerous as in the hands of a man who had folly and presumption enough to fancy himself fit to exercise it.
What is to be done? The first order of business is to get people to understand that freedom is to be cherished and jealously guarded from government usurpation. We can start by building on their suspicions about government-run medical care.
This article originally appeared in the October 2009 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.