– July 30, 2020

In January 2014 then-President Barack Obama made a speech in Washington, D.C. In that informal speech, just before a cabinet meeting, he explained he found it necessary to ignore the U.S. Constitution and unilaterally impose his vision of the good society on the nation:

We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone…

And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.

Many people on the right complained (I thought correctly) that this was Presidential overreach. To be fair, even the New York Times called the overzealous suppression of information and prosecution of whistleblowers “a stain on Obama’s legacy.”

Now, of course, all my friends on the left are appalled by the actions of the overreach of the Republican administration. Many who were fine with Obama ordering states around on the environment have recently taken a strong interest in the 10th Amendment, worrying about immigration enforcement and sending federal police to Portland and other cities. Understand: this is no partisan disagreement, but an irredeemable flaw in the nature of the state. The modern state is either too weak to do what we want, or so strong it can do whatever it wants.

The problem is often stated recursively. In Luke 4:23, Jesus mocked his skeptical listeners, “Physician, heal thyself.” The audience doubted Jesus’ claim that he was the messiah, because “Is not this Joseph’s son?” Just some local kid putting on airs and getting above his raisin’. Jesus’ taunting response was, in effect, “Nobody wants a sick physician, or a skinny cook, right?”

There are other observations in this vein; perhaps the most famous is that of the Roman satirist Juvenal. Around 100 C.E. he wrote about a problem of making sure someone does the right thing, even if the boss isn’t watching. His example (it was a satire) focused on ensuring the sexual fidelity of wives:

I know well the advice and warnings of my old friends: “Put on a lock and keep your wife indoors.” Yes, and who will ward the warders? They get paid in kind for holding their tongues as to their young lady’s escapades; participation seals their lips. The wily wife arranges accordingly, and begins with them…. (Satire #6)

Juvenal’s question, “Quis custodiet ipsos custodes?” (I’ve seen it translated “Who will ward the warders/guard the guardians?”), and Jesus’ parable, both illustrate the problem with the dual nature of the state. The usual social contract myth endows the state with the duty to enforce all agreements. But who then is to enforce the agreement between citizens and the state? Can the state be both enforcer and a party in the dispute? Physician, heal thyself.

There is of course a long history of just this kind of critique among libertarians, particularly those of us with some anarchist sympathies. One of the most interesting, important, but (to my mind) underrated of these was the late Anthony de Jasay. The origins of government are supposed by our inability to enforce contracts. So we create an entity that specializes in violence, to force everyone to obey their contracts. In Hobbes’ terms, “Covenants, without the sword, are but words.” Of course, once “we” “consent” to this universal contract enforcer, we have some problems. Who is this “we?” It all happened a long time ago. And very few people actually “consented;” all that happened is that we didn’t leave the country. And who will enforce our contract with the violent contract enforcer? Somehow, the government has to govern itself.

According to Jasay, there are two fatal flaws with the “social contract” idea. The first is the “enforceable contracts” justification, and the second is the “limiting Leviathan” problem of self-governance.

If contracts are unenforceable, then who governs the government? If we can’t enforce contracts with equals, how can we trust Leviathan? Jasay compares this magical thinking to “jumping over your own shadow.” As he puts it, “[I]t takes courage to affirm that rational people could unanimously wish to have a sovereign contract enforcer [itself] bound by no contract.” And by “courage” he intends no encomium. Either (1) those who make this claim are contradicting themselves: since we can’t have contracts, we’ll use a contract to solve the problem; or (2) the argument is simply circular: cooperation requires enforceable contracts, but these require a norm of cooperation that makes the state obey the contract. Of course, if there is a norm of cooperation then other contracts are enforceable without the state.

We are on the horns of a dilemma: either the former claim—contracts cannot be enforced—is true, and we cannot conjure enforceable contracts out of a shadow; or the latter claim—people naturally cooperate on their own—is true, and then no state was necessary in the first place. Robert Nozick (1974) put it well: “Tacit consent isn’t worth the paper it’s not written on.” 

The second problem highlighted by Jasay is “limiting Leviathan.” Let’s assume the best: state officials genuinely intend to do good. We might make the standard Public Choice claim that officials use power to benefit themselves, but let us put that aside; instead, suppose officials genuinely want to improve the lives of their citizens.

That still means a minarchist state is not sustainable. 

Officials, thinking of the society as a collective rather than as individuals with inviolable rights, will immediately discover opportunities to raise taxes, create new programs and new powers that benefit those who, in the minds of the officials, need help. In fact, it is precisely the failure of the Public Choice assumptions of narrow self-interest that ensure this outcome. It might be possible in principle to design a principal-agent system of bureaucratic contract that constrains selfish officials. But if state power attracts those who are willing to sacrifice welfare, even their own welfare, for the “greater good” then the constitutional dams of minarchy are quickly overtopped, and Leviathan floods the land.

I should hasten to add that it need not be true, for Jasay’s claim to go through, that the concept of “greater good” has any empirical content. It is enough that (some) people believe. The true believers will brandish “the greater good” like a truncheon, smashing rules and laws designed to restrain the expansion of state power. No one who wants to do good will pass up a chance to do good, even if it means changing the rules. This process is much like that described by Hayek in “Why the Worst Get on Top,” or Bertrand de Jouvenal’s On Power.

So, the argument has the same structure, creating a logical dilemma or contradiction. Either

  1. Minarchy is not possible, because it is overwhelmed by the desire to “do good,” which cannot be controlled by the state because it would require officials to limit themselves for moral, not legal reasons, or
  2. No state, minarchist or otherwise, is necessary because people can limit their actions on their own, without the state’s use of coercion.

Jasay is especially scornful of those who would invoke constitutions and “parchment barriers” to protect a minarchist arrangement. A formal state and a constitution are either unnecessary (if people are self-governing) or ineffective (if they are not). Leviathan either cannot survive because everyone opposes it, or else it is illimitable because no one can resist it. 

Most people seem to think that the problem with government power is that the wrong people are in office. That’s not right; the problem is that we want to rely on a physician who suffers an illness that cannot be cured.

Michael Munger

Michael Munger

Michael Munger is a Professor of Political Science, Economics, and Public Policy at Duke University and Senior Fellow of the American Institute for Economic Research. His degrees are from Davidson College, Washingon University in St. Louis, and Washington University. Munger’s research interests include regulation, political institutions, and political economy.

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