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Nose Cut, Face Spited

November 7, 2013

Politicians in democracies like to make glossy statements like “the will of the people” or “the people have spoken” or even that they “represent the people.” If any such statements have been true in the last few months, then the shutdown may be read as “the people” declaring themselves unfit to govern.

Claiming to know “the will of the people” is a political tradition that dates back to well before Rousseau’s argument that the will of the people is the only legitimate basis of government. It’s a matter of rhetoric. It’s also a total red herring for anything beyond technical philosophical questions about basic governance, and even then it might depend on who you ask.

While one might think we could all agree that any tenable definition of “the will of the people” includes support for certain things like the rule of law and individual rights of political participation and self-determination, it’s nearly impossible to speak about what “the people” want when it comes to subjects about which there exists even an atom’s worth of room for disagreement. “The people” can and do disagree on fundamental political questions like the size, scope, duties, and worthiness of government in general. Some of “the people” don’t even want there to be a government at all, let alone one that has sufficient resources and wherewithal to do the things that other parts of “the people” want government to do.

Of course, the question of what “the people” wants government to do manifests itself at every level of law: social contract, the Constitution, and federal and local statutes. Each step involves a level of filtration, division, and distance. There will always be disagreement, but what disagreement does that result in? A government or no government? Can there be a law that applies to everyone, even if that law is simply that the rule of law is supreme?

One idealistic baseline is that natural rights should not be abridged at all by giving a government the power to enforce laws for which one does not individually consent. This position seems to require that the governed provide explicit consent at least to the baseline constitutional law that enables the rest of the laws. Otherwise, the eventual threat of force that is the backstop of government authority is essentially tyrannical. That’s why this school of thought often sounds like it’s arguing a debate that was settled with Hobbes and Locke. (Note that I did not use the words “libertarian,” “objectivist,” or “anarchist.” This will be relevant later.)

Another school of thought is necessarily more pragmatic. It acknowledges that we can never actually garner 100% participation in any social contract. After all, there are new generations that cannot meaningfully consent until they reach the age of majority, and there are always those who will be holdouts for personal (possibly system-gaming) reasons. Instead, consent of the governed has historically been presumed on behalf of a just system, more or less as a philosophical shortcut.

That consent is presumed via constitutional law. We have a constitution that we histrionically enshrine in order to inculcate the appearance and actual willingness of consent. Children are taught from a young age that the Constitution is basically infallible, that the founders were enlightened demigods amongst men, and that anyone who denigrates the constitution is probably an anti-patriotic saboteur or worse. From this starting point, Americans start with respect for the system created by these founders, and differences of opinion subsequently arise in the interpretation of how to carry out that particular vision. Those differences are the subject matter of statutory law and modern politics, whether manifested in questions about what laws are “necessary and proper” to the functioning of the republic or questions about how and whether to enact new laws in light of the Constitution, its premises, and the country’s history.

Of course, as heretical as it may seem, the founders and the Constitution were not, and are not, infallible. The founders turned a blind eye to slavery in the name of political expedience, and the Three-Fifths Compromise wasn’t exactly the Constitution’s finest exposition of democracy, let alone basic human rights. And as any reader who has enjoyed alcoholic beverage will already know, even 2/3 of both houses of Congress and 3/4 of the state legislatures can get things wrong.

So it is no surprise that America has rather limited institutional mechanisms available to change the laws that underlie all of the other ones. After all, what kind of political system would be sustainable if fundamental revisionism could happen with every election, let alone every occasion for a legislative vote? Apparently, it’s the kind that has to fight a war to end slavery, to suffer a depression to allow the federal government to intervene in the economy, and to witness the rise of Jim Crow and race riots to begin to guarantee some of the most basic civil rights.

But that doesn’t mean that the attempt to form a more perfect union is worthless or foolhardy. It simply means that the project of self-governance is difficult. And universal consensus even more so.

Indeed, sometimes we find ourselves in severe disagreement with the results of the political process. Less than five percent of the United States approves of the job that Congress is doing right now. Obama’s approval rating is at historic lows. And yet, I think most Americans–with the possible exceptions of the Tea Party and anarchists–still want a form of government where the basic rule of (constitutionally enacted) law controls. That’s the social contract we’ve signed onto, impliedly or otherwise.

So when legislation becomes gridlocked, and partisans are unwilling to change their minds or compromise, and holding the government hostage becomes the apparent tactic, that hurts Americans at their core. It does and should strike most Americans as a perverse tactic when the goal is simply to modify existing law. Indeed, shutting down government is impounding the Executive Branch’s ability to “take care that the laws are faithfully executed.” The shutdown gambit seeks to change the rules of the game: “even though we agree by social contract to follow the laws that are duly enacted, we decided that we don’t like this one, and aren’t going to let you follow it either.” It would be like defunding a military during wartime or refusing to allow a peaceful transition of power when your party doesn’t win an election. When the motivations of those who would shut down the government seem cynical or bought off, maybe the fault is not in the fight but in the weapons being brought to the table.

Refusing to fund the enforcement of the laws whenever legislative disagreements happen is not consistent with America’s social contract. It is, however, a plausible route to bring to the public’s consciousness the contradictions festering in the American polity, and make them question the validity of the legislature’s role in the social contract in the first place. Maybe it is “We the people” who have some constitutional questions to answer.

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