Numbers Do Not Confer Legitimacy

I am always happy to participate in a Cato Unbound discussion, but in this case I think I owe the readers an apology for being a poor interlocutor. If I understand the lead essay correctly, it assumes that democratic government is justified, but complains that the modern administrative state is so far removed from accountability to the people that it does not partake of the legitimacy conferred upon representative government. I am a poor interlocutor because I do not share the underlying assumption.

Mr. Wallach writes that “[l]ibertarians are famously ambivalent about democracy.” I cannot speak for other libertarians, but speaking for myself, I am not ambivalent about democracy at all. I am opposed to it. I do not believe that having more people on one’s side confers any moral legitimacy on coercive action.

There is nothing inconceivable about a government endowed with only a small number of particularly described or “enumerated” powers in which the officials charged with exercising these powers are selected by majority vote; that is, with there being a small island of collective choice embedded in a large sea of individual choice. This is entirely distinct from a democracy in which government is empowered to enact wide-ranging “public policies” that are chosen by representatives elected by majority vote; that is, where there is a sea of collective choice upon which one is required to sail in a ship captained by whoever is currently most popular. What would be inconceivable would be to believe that by participating in the political process under the latter form of government–that by engaging in the struggle for the captaincy of the ship–one could transmute the government into the former–that one could dry up the sea and trade the ship in for a rowboat. This was the source of my original suggestion that it would be better to look for protection against the deprivations of the administrative state outside of the political process.

I understand that none of this is helpful. I originally characterized myself as less pessimistic than Mr. Wallach because I chose not to see acting through the political process as the only means of counteracting the administrative state. However, if to advance the topic under discussion, I must adopt that frame of reference, then I am considerably more pessimistic than he is. I certainly agree with his assessment that “[r]epresentation is imperfect; the idea that it can merely transmit the public’s pre-existing will is usually incoherent; and there is no doubt that collective choices will often be oppressive.” However, I am unable to share his hope that the benefits of representative democracy–at least on its current national scale with virtually no restriction on the realm of activities that can be subjected to collective choice–can outweigh these drawbacks; that it “can do a tolerably good job of learning about social problems and offering meliorative solutions;” or that “the need to court electoral support [is likely] to drive socially beneficial choices, just as the profit motive drives capitalists to produce consumer surplus.” I’m afraid I have seen very little evidence of this over the course of my lifetime. And I have no idea what means by saying that “there is a long history of representative government achieving legitimacy.” If what is being referred to is moral legitimacy, then representative government achieves legitimacy in direct proportion to the extent to which large areas of individual activity are placed outside of its coercive control.

We should oppose the administrative state to the extent that its actions impose unconsented restrictions on individuals that prevent them from peacefully pursuing the goals that make their lives meaningful. We should oppose representative government to precisely the same extent. My inability to see how having more numbers on one’s side makes it legitimate to do what would be illegitimate if done by a single individual renders me unable to share the underlying assumption upon which the lead essay rests. This places me outside the bounds of the discussion, and renders me a poor participant in the larger conversation. If I make another contribution, I will try to do a better job of engaging with the issue.

Also from this issue

Lead Essay

  • Philip Wallach describes rising skepticism about the administrative state in our representative government. But what can be done about it? Populists promise to return the government to the people, and yet effective government in the modern world to a high degree requires technical expertise. Libertarians have a telling diagnosis of the problem, says Wallach, but few workable solutions. If Congress is to regain control of the sprawling administrative state, it will have to demonstrate that it is willing and able to govern instead.

Response Essays

  • Clyde Wayne Crews finds much to agree with in Philip Wallach’s diagnosis of administrative sprawl. But then he asks: Why not rein it in? Other countries have done so, and we have even taken some important and bipartisan steps in that direction before. The bureaucratic pretense of expertise has never been so clearly exposed as it is today, and we should take the opportunity to improve the regulatory environment before incipient technologies, like autonomous cars and commercial drone transport, are caught in the regulatory web.

  • Adrian Vermeule openly doubts that the administrative state faces a legitimacy crisis. He observes that Congress itself created the administrative state, and that it remains firmly in control of its creature. Moreover, the public appears fairly content with the administrative state that we have, and certainly shows no inclination to scrap the whole thing. Both these observations should count, he suggests, in any consideration of the administrative state’s legitimacy. In short, there is no crisis here, and no radical solutions are warranted.

  • John Hasnas does not think that the administrative state can be reformed. But it can be outpaced. This, he says, offers hope for libertarians, whereas politics does not. The administrative state is inherently slow to adjust to new social developments, and liberty will always exist just a few steps ahead of it.