This post is a continuation of “Liberty as a Social Compact,” “Social Norms and Liberty,” and “A Footnote about Liberty and the Social Compact.”

The Centralization of Social Norms Undermines Liberty

Liberty can never be perfect in the real world of emotions, prejudices, stupidity, and ignorance. But liberty is most attainable when societies and polities must compete with one another for the allegiance of members and prospective members.

Legislation and judge-made laws are especially destructive of liberty when they emanate from a central government because they dilute the effectiveness of “exit” — the ability to vote with one’s feet. Local and regional differences become hard to detect when the central government encroaches into issues ranging from elementary education to working hours to speed limits, not to mention abortion. When all places become subject to the same set of imposed norms they tend to become almost uniformly unattractive. The forceful imposition of norms compounds the risk to liberty, for people are less likely to value and defend that which is not of their own making.

There is a “race to the top” — toward liberty, that is — when societies or polities must compete for adherents, based on the attractiveness of the norms of those societies and polities. For example, the Freedom Forum offers this relevant bit of history:

Although early Americans built on their English heritage when developing rights in the new land, many colonies before 1689 had laws that far exceeded the scope of the English Bill of Rights. Rhode Island, established in 1636, was the first American colony to recognize freedom of conscience. In 1641, Massachusetts Bay enacted the Massachusetts Body of Liberties, the first detailed protection of rights in America. Maryland was founded as a haven for Catholics, but its citizens extended the right of religious toleration (1649) to other Christians as well.

In June 1776, Virginia adopted a new constitution, prefaced by a declaration of rights including many that would later appear in the U.S. Bill of Rights. The Virginia Declaration of Rights, served as a model for eight of the 12 other states that adopted new constitutions during the revolutionary period.

While the new state governments protected individual rights, the Articles of Confederation, the first constitution of the United States, did not. The weak national government under the Articles of Confederation created many problems. In 1787, these problems finally led to a convention to draft a new charter for the national government, the Constitution of the United States. Lack of a bill of rights became the main reason many people opposed the Constitution.

The Framers understood that the decentralization of governmental power is essential to liberty. They wanted to leave the bulk of governmental power in the hands of the States. (A reasonable prospect at the time; the average population of a State in 1790 was about 1/25 the average population of a State today.) And the Framers saw the multiplicity of States as a bulwark against tyranny in the nation as a whole. Here, for example, are excerpts of James Madison’s entries in The Federalist Papers:

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State. (Federalist No. 10)

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The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. . . . (Federalist No. 45)

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. . . If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty.

On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter. (Federalist No. 46)

Ironically — and tragically — the Commerce Clause, touted by Madison in Federalist No. 45, has been the foundation for much of the undoing of the Framers’ plan. In fact, it is hard to imagine a facet of social and economic life that is no longer touched by the central government, as the Supreme Court and Congress have acted, especially since the 1930s, to nationalize and homogenize Americans’ mores. David F. Forte offers a leading example of this in his article about the Commerce Clause in The Heritage Guide to the Constitution (pp. 101-7):

. . . By 1941, in United States v. Darby, it was clear that the new majority [of the Supreme Court] had embraced a very expansive [view of the Commerce Clause] and, as events were to show, these Justices were able to find that any local activity, taken either separately or in the aggregate, Wichard v. Filburn (1942), always had a sufficiently substantial effect on interstate commerce to justify congressional legislation. By these means, the Court turned the commerce power into the equivalent of a general regulatory power and undid the Framers’ original structure of limited and delegated powers . . . .

The Framers’ Fatal Error

The Framers underestimated the will to power that animates office-holders. The Constitution’s wonderful design — horizontal and vertical separation of powers — which worked rather well until the late 1800s, cracked under the strain of populism, as the central government began to impose national economic regulation at the behest of muckrakers and do-gooders. The Framers’ design then broke under the burden of the Great Depression, as the Supreme Court of the 1930s (and since) has enabled the central government to impose its will at will. The Framers’ fundamental error can be found in Madison’s Federalist No. 51. Madison was correct in this:

. . . It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. . . .

But Madison then made the error of assuming that, under a central government, liberty is guarded by a diversity of interests:

[One method] of providing against this evil [is] . . . by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. . . . [This] method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. . . .

Madison then went on to contradict what he said in Federalist No. 46 about the States being a bulwark of liberty:

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

Madison understood that a majority can tyrranize a minority. He understood that the States are better able to prevent the rise of tyranny if the powers of the central government are circumscribed. But he then assumed — in spite of the race to the top that I noted above — that the States themselves could not resist tyranny within their own borders. Madison overlooked the importance of exit as the ultimate check on tyranny. He assumed (or asserted) that, in creating a new central government with powers greatly exceeding those of the Confederacy, a majority of States would not tyrannize the minority and that minorities with overlapping interests would not concert to tyrannize the majority. Madison was so anxious to see the Constitution ratified that he oversold himself (possibly) and the States’ ratifiying conventions (certainly) on the ability of the central government to hold itself in check. Thus the Constitution was lamentably silent on nullification and secession.

What has been done by presidents, Congresses, and courts will be very hard to undo. Too many interests are vested in the regulatory-welfare state that has usurped the Framers’ noble vision. Democracy (that is, vote-selling) and log-rolling are more powerful than words on paper. Even a Supreme Court majority of “strict constructionists” probably would decline to roll back the New Deal and most of what has come in its wake.

This is an appendix to “Liberty as a Social Compact” and “Social Norms and Liberty.” In those posts I first made the case that

liberty is not an abstract ideal. Liberty cannot be sustained without the benefit of widely accepted — and enforced — social norms. A society that revolves around norms established within families and close-knit social groups is most likely to serve liberty.

From which it follows that

the attainment of something like liberty and happiness requires the acceptance of — and compliance with — some social norms that one may find personally distasteful if not oppressive. But it is possible — in a large and diverse nation where each social group is free to establish and enforce its own norms — to find a place that comes closest to suiting one’s conception of liberty and happiness. The critical qualfication is that each social group must free to establish and enforce its own norms, as long as those norms include voice and exit.

The validity of these observations depends critically on the source of rights. As I have argued at length,

[r]ights — though they can exist without the sanction of government and the protection of a state — are political. That is, although rights may arise from human nature, they have no essence until they are recognized through interpersonal bargaining (politics), in the service of self-interest. It is bargaining that determines whether we recognize only the negative right of liberty, or the positive right of privilege as well. The preference of human beings — revealed over eons of coexistence — is to recognize both liberty (usually constrained to some degree) and privilege (which necessitates constraints on liberty).

The liberty I alluded to there was the “pure” liberty of John Stuart Mill’s “harm principle” (see footnote), which can be summarized as the negative right to be left alone — in one’s person, pursuits, and property — as long as one leaves others alone. “Pure” liberty is a mere abstraction. Actual liberty must necessarily involve compromises (constraints), which are inevitable in a society of varied personalities that exists in a particular time and place.

In support of the argument that rights are political, I quoted from Denis Dutton’s review of Paul H. Rubin’s Darwinian Politics: The Evolutionary Origin of Freedom; Alan Fiske’s essay, “The Inherent Sociability of Homo Sapiens“; David Stephens’s “Impulsive behavior may be relict of hunter-gatherer past“; and a summary of J. Philippe Rushton’s article, “Genetic and environmental contributions to prosocial attitudes: A twin study of social responsibility.”

The full implication of those studies is that what we call “rights” — the kinds of behaviors in which we may engage with impunity — must be consistent with morality — the kinds of behaviors that society recognizes as “right.” The kinds of behaviors that society recognizes as “right” must, in turn, foster the survival and success of society. Robin Allott explains, in “Objective Morality“:

No society is healthy or creative or strong unless that society has a set of common values that give meaning and purpose to group life. . . . Empathy is seen both as the foundation of the unity of feeling which forms an aggregation of individuals into a coherent group and as the source of the effectiveness of the group’s code of behavior, the group morality. . . .

One can list various types of motivation which do, or may, lead individuals to accept and seek to observe the morality of their group. There may be childhood imprinting of the moral rules of the family or group, leading to a prerational application of the code, operating rather like post-hypnotic suggestion — automatic moral responses to predetermined situations. A variant or support of this takes the form of religious endorsement of moral principles — religious sanctions reinforcing introjected moral reflexes. Or morality may be rationalized as the pursuit of happiness, pleasure or utility — high level ethical theories perhaps, rather than practical motivations. Or moral behavior may result from prudence or superstition — following the rules for fear of something worse. . . . More generally, moral behavior may flow from a desire for a worthwhile, productive life, a rational desire of the individual to survive and avoid bodily or mental damage. This may be associated with empathetic identification with the group, its survival and prosperity. . . .

The objective necessity of morality has been demonstrated by life over many generations. However it is not open to immediate rational demonstration. Morality is concerned with remote consequences. The problem is that we have no easy way of seeing the long-term or otherwise distant consequences of following or not following moral rules or showing the consequences for ourselves, for our family or for the group to which we belong. What can we say to the immoralist who claims total moral freedom, who asks: Why not lies? Why not intemperance? Why not promiscuity? Why not theft or fraud? Why not murder? Why not cruelty?

One answer may be: In the absence of morality, you are in a world of powerful, clever, unpredictable animals. Only by understanding others can you protect yourself. Others in the group will only be predictable to the extent that they follow the same moral rules and are moved by the same emotions. A group’s morality is concerned not only with how an individual should judge his own action but with how other members of the group, and the group collectively will judge the individual’s actions and respond to them. Judge your own action so that you are not judged by others. Others will do unto you what you do unto them. So do not do unto them what you would not want them to do unto you. An individual who rejects the morality of the group rejects empathetic membership of the group and empathetic recognition by others of his membership of the group. The individual becomes a moral parasite living on the morality of the group which he does not observe. To him a different level of morality will apply — the more primitive kind of morality applied to those not members of the group, to outlaws and outcasts. By asserting your unlimited moral freedom, you risk losing your own freedom.

We ignore, at our peril, the lessons of the ages. Contrary to libertarian purists, the path to liberty is not found in Mill’s simplistic “harm principle,” which is a formula for atomism. The path to liberty winds tortuously through the complexity of human nature, which shapes — and is shaped by — a society’s mutual striving to survive and prosper. To give a stark but apt example: If you will kill an unborn child for your convenience, why should I trust you not to kill me for your convenience when I am old? And if I cannot trust you, why should I subscribe to the defense of your life, property, and pursuits?
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The “harm principle,” from Chapter 1 of On Liberty:

That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.