The opening of this op-ed is awesome: as a whole, it is supportive of the “tea parties” we have currently (I’m not as supportive, as will be clear below; I despise the conclusion of the article). For starters, on what we are willing to consider “law:”
But it isn’t the “reform” part of the Democrats’ health care bill (if they ever agree on one) that strikes me as most perverse. It’s calling this voluminous monstrosity a bill. Can you have a bill, a single law, that is almost 3,000 pages long? In the old days, that would have constituted a whole code of laws. When our founders thought about law, they often thought along the lines of John Locke, who described law as a community’s “settled standing rules, indifferent, and the same to all parties,” emphasizing that to be legitimate a statute must be “received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies” between citizens.
For the most part, I’m like “yeah!” reading that. But I think some laws and policies do have to be complex, and where Dr. Kesler and I start splitting ways is here:
You could read this leviathan until your eyeballs popped out and still not find any “settled, standing rules” or a meaning that is “indifferent, and the same to all parties.”
In fact, that’s the point of such promiscuous laws. They operate not by setting up fences to protect each man’s liberty. They start not from equal rights but from equal (and often unequal) privileges, the favors or benefits that government may bestow on or withhold from its clients. The whole point is to empower government officials, usually unelected and unaccountable bureaucrats, to bless or curse your petitions as they see fit, guided, of course, by their expertness in a law so vast, so intricate, and so capricious that it could justify a hundred different outcomes in the same case. Faster than one might think, a government of equal laws turns into a regime of arbitrary privileges.
A “privilege” is literally a private law. When law ceases to be a common “standard of right and wrong” and a “common measure to decide all controversies,” then the rule of law ceases to be republican and becomes despotic. Freedom itself ceases to be a right and becomes a gift, or the fruit of a corrupt bargain, because in such degraded regimes those who are close to and connected with the ruling class have special privileges.
Again, I’m pretty much agreed. I think there’s a host of issues you can bring up at this point that start complicating the argument, though. As discussed previously in this blog:
- Ranting at bureaucrats is easy, and forgetting that bureaucrats sometimes know issues and the law way better than any given party is also easy. Our elected government does operate at a distance from us for a reason: once they’re elected, we can threaten them by saying we won’t vote for them again. But there’s a lot left up to their discretion, so that the creation and implementation of the law are not dependent on the more fickle parts of the popular will. The ones that are unelected are not inherently corrupt and evil; Kesler’s case sounds strong because it is implicit that “we the people” have set this up, but we’re more than willing to take the good (entitlements!) and curse at the bad like we didn’t cause it (bureaucrats that dole out entitlements).
- When you really think about “arbitrary privileges,” and look at a chart like the US federal budget FY 2009, the big question is: does Kesler assume we’re all united as Americans? (short answer: yes) Does he assume this unity even as certain interest groups use the rhetoric of unity to get their way? (yes)
And that’s the deep problem with “The Tea Party Spirit” as currently constituted. Kesler’s polemic ends with this:
Today’s Tea Party movement sees a similar threat of despotism – of monopoly control of health care, corrupting bailouts, massive indebtedness, and the eclipse of constitutional rights – in the Obama Administration’s policies. The Tea Party patriots may mistake the President’s motives when they compare him to King George. But they are right to suspect in the very nature of modern liberalism and the modern state something hostile to the consent of the governed and to constitutional liberty.
No, Dr. Kesler, they’re not patriots. Some are white supremacists; some believe the US government killed its own citizens on 9/11; some believe the President isn’t a citizen; nearly all of them do not compare the President to King George, but compare the current President and President Bush to Hitler; they believe government spending is a cardinal sin, except when it comes to Medicare, when they will happily hold up signs saying the government should keep their hands off “their” Medicare. All of them are more than willing to engage or cover for extremism. I’m not saying they’re all evil or hypocrites, they’re not. But they’re not motivated by patriotism, because patriotism assumes you can see your fellow citizens as human beings that you don’t shout at, but show some respect to.
Bureaucracy exists because to a degree, it is an instantiation of the law and our values. It is not the worst thing in the world: we may pay colleges and schools too much, but we do get some educated, thoughtful people out of it. If we didn’t pay too much, we may not even get that. I don’t like health care reform one bit. I do think the bureaucracy it creates is dangerous. But that doesn’t mean this world of bailouts (which can be said to have saved our banking system), debt (um, we’re going through a recession), and some vague charges about a lack of constitutional rights is “despotic.” The Tea Partiers are moral actors, not just political ones: there are consequences for indulging their hate, however useful one might feel it is to blocking bad policy.