Freedom and Economic Order

by Linda C Raeder

  Other fundamental elements of traditional American justice—individual property rights and consent of the governed—are similarly violated by a policy of redistribution. Both morality and justice forbid property to be taken from an individual without his consent. In a representative democracy such as the United States, relevant consent is thought to be conveyed through the citizens’ elected representatives in Congress (or state legislatures, as the case may be). Every schoolchild is familiar with the celebrated slogan of the American revolutionaries, “no taxation without representation.” Such was a simple restatement of a longstanding principle of Anglo-American justice—no individual’s property may be taken (“taxation”) without his consent (conveyed through his elected representatives). In the present example, the higher-income voters who rejected the proposed entitlement for the homeless were overridden by the majority who voted in its favor. Those individuals ultimately taxed did not consent to such taxation but were nevertheless taxed. Taxation in this instance thus violates both the principle of consent of the governed and the individual right to property (which obliges others to refrain from taking property without the owner’s consent). A policy of redistribution to benefit the homeless that is not achieved by unanimous consent of the taxpayers who fund it thus violates three central criteria of traditional Anglo-American justice—equality under law, consent of the governed, and individual property rights. From the perspective of traditional justice, such policy can only be regarded as unjust.

  One conceivable way to avoid such a conclusion is to argue that citizens in a representative democracy such as the United States agree to be bound by the decisions of the majority as reached by deliberation of their representatives in Congress. Since unanimity is all-but-impossible, it is said, all citizens, both potential majorities and potential minorities, agree to adopt the convention of abiding by majority decision. Accordingly, it may be argued, the relevant consent was given by the majority who approved the entitlement program through their representatives. Such a view, however plausible, fails to represent the nature of American constitutional order. It misrepresents the meaning of American liberal democracy in general and the meaning of unalienable rights and consent of the governed in particular. It further fails to recognize the fundamental (Lockean) principle of constitutional or limited government, namely, government is intrinsically limited by the ends for which it is created.

  The justice of political redistribution of wealth hinges crucially on the issue of consent. Property cannot be taken without an individual’s consent, and legitimate government is based on consent of the governed. We have seen that the majority in our example—the altruists, social activists, and beneficiaries of the new entitlement program—have indeed given their consent to taxing the “wealthy” for purposes of redistribution. Theirs, however, is not the consent relevant to American constitutionalism. The relevant consent implied in the principle of “consent of the governed” is the consent of those individuals whose income is to be taken in the form of taxation. The individual right to property and the grounding of legitimacy in consent of the governed forbid the property of any individual to be taken without his own consent (expressed indirectly through his elected representatives). We have seen, moreover, that the individual right to property, like other natural rights, is regarded as unalienable and derived from a source higher than government. Such a right protects the security of an individual’s possessions, whether threatened by one individual or a group that constitutes a majority. The consent given by the majority to take property from a minority (the “wealthy”) is meaningless and irrelevant. It is not majority consent that matters but rather consent of the person or persons whose property is to be taxed.

  The consent of a majority to redistribute wealth by taxing a minority is further meaningless for the following reason. No private individual possesses the moral right to take another individual’s property without his consent, even for a noble purpose. Such is the definition of theft since time immemorial. Mother Teresa herself was morally required to solicit voluntary donations to fulfill her goal of alleviating the suffering of children. She was not permitted to appropriate the resources of the wealthy or anyone else to realize her selfless mission. Private individuals are forbidden, by both law and morality, to take others’ property without their consent.

  Contemporary governments, by contrast, routinely engage in such activity by means of legislative and tax policy that results in the redistribution of wealth, such as the case under discussion. Public officials (legislators), in contrast to private citizens, are legally permitted to take the property of certain individuals without their consent, such as the “wealthy” in our example. We are seeking the moral justification for such governmental action. The argument that relevant consent for such action has been given by the majority of voters (through their elected representatives) who approve of the redistributive policy must be dismissed, for reasons discussed; the relevant consent is not of those who tax but rather those taxed. Moreover, no private individual or majority of private individuals is entitled to authorize another party, such as elected representatives in Congress, to take another’s property without his consent. Such a prohibition follows from that fact that no individual is himself permitted to engage in such action. The only “powers,” Locke says, that may rightfully be delegated to another person or persons are powers or rights that an individual himself actually possesses. Persons cannot give away or delegate something they themselves do not possess, such as a right to take another’s property without his consent.

  Locke and the Founders, as we have seen, did acknowledge the right of individuals to delegate the protection of their natural rights to another party (the executive authority established by the social compact). The compacting individuals in the state of nature delegate their natural right of self-defense to the executive, thereby conveying moral legitimacy to its employment of coercive force in the protection of their rights. Such delegation is legitimate, however, only because individuals actually possess the right of self-defense in the first place. No one can delegate or transfer a “right” to take another’s property without his consent because no one possesses such a right in the first place. Contemporary elected officials may possess the legal authority to engage in political redistribution but mere legality does not establish morality. The unavoidable conclusion is that the redistributive policies of contemporary Western democracies cannot be justified on traditional moral grounds. A politics of redistribution necessarily and invariably violates traditional principles of morality and justice. Congressman Davy Crockett implicitly invoked such principles when reminding his constituents that “[w]e have rights as individuals to give as much of our own money as we please to charity; but as members of Congress we have no right so to appropriate a dollar of public money.”[110]

  A second and related argument occasionally employed in defense of redistribution in a representative democracy acknowledges that consent of the majority cannot and does not justify such policy. It maintains, however, that the relevant consent—consent of the taxed minority—is implied by the minority’s general acceptance of that form of government. Everyone understands, as previously observed, that unanimity is impossible in a representative democracy and that its operation therefore depends on the willingness to be bound by decisions of the majority. Universal recognition of such a fact, it is said, means that the minority who agree to participate in the political process, by that very participation, implicitly grant their consent to electoral outcomes, with respect to both officeholders and legislative decision-making. If the minority does not approve of a particular legislative outcome, the proper recourse is said to be further engagement in the political process—the election of future representatives who will better protect the interests of the minority. The losing minority must gracefully accept the outcomes of the legislative process unless and until it succeeds in gaining majority status in the next election. The proper way to meet legislative defeat in a representative democracy is thr
ough future electoral victory. In the meantime, everyone is bound by the decisions of the majority of the people’s representatives. If a bill passes both House and Senate, is signed into law by the president and passes constitutional muster under judicial review, the disapproving minority has no other recourse but future elections.

  Such an argument, again, is plausible on its face. It overlooks, however, several crucial moral and political considerations and, as mentioned, involves a fundamental misunderstanding of constitutional government as conceived by the American founders. To perceive the grounds of such misunderstanding, we revisit John Locke. We recall that, according to Locke, the chief reason individuals agree to leave the state of nature and establish civil government is the “preservation of their property,” broadly conceived as encompassing an individual’s life, liberty, and estate. The individual’s natural rights to life, liberty, and property are relatively insecure in the state of nature. Thus, as Jefferson restated the Lockean view, “to secure such rights, governments are instituted among men, deriving their just powers from the consent of the governed.” Jefferson elaborated this conviction in a letter of 1816:

  Our legislators are not sufficiently appraised of the rightful limits of their power; that their true office is to declare and enforce our natural rights and duties, and to take none of them from us. No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him; and, no man having the right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third [party]. When the laws have declared and enforced all this, they have fulfilled their functions; and the idea is quite unfounded, that on entering into society we give up any natural right.[111]

  The purpose of government is clear—to secure the individual’s natural and unalienable rights. Such is the reason individuals agree to form a government in the first place and, most important, the government thus established is intrinsically limited by the ends or purpose for which it is created. Such an inherent limitation on the power of government is both explicit and implicit in American founding documents. Explicit limitations are enumerated in the U.S. Constitution, including the Bill of Rights. Such an enumeration, however, as indicated by the Ninth and Tenth Amendments, was not intended as exhaustive. American constitutional order presupposes the general terms of the Lockean social compact, which means that government is implicitly limited by the purpose for which it was created. We recall that government, on the Lockean/American view, is regarded as a “trustee” charged with a precise moral obligation—to secure the unalienable rights of each and every individual. A government that violates that purpose, that fails to secure such rights or, worse yet, itself violates those rights, is, quite simply, illegitimate. Such is the case even in the unlikely event that its actions are supported by universal consent of the citizenry. There can be no possibility of “consenting” to a violation of unalienable rights not only because they are unalienable but because their protection is the very reason government is established in the first place. Individuals would be better off in the state of nature than to endure a government that itself violates their natural rights. An individual’s rights to life, liberty, and property may be relatively insecure in the state of nature but at least he is entitled to personally defend them—to “execute” the law of nature on his own behalf.

  On the Lockean and American view, then, legislation that violates the unalienable rights of the individual can never be legitimate or morally obligatory. A government that enacts such legislation, even on the basis of majority support, has violated its trust. It has violated both the explicit and implicit terms of the social contract and overreached the bounds of its rightful authority. The people are thus dissolved of all obligations to such a government and possess the right, indeed, says Jefferson, the “duty,” to abolish that government and create another better designed to secure the safety of their rights. As we have seen, the American Revolution was understood to have resulted from precisely such a violation of the social compact between the American colonists and British government of the day.

  The moral problem, then, that arises from political redistribution of wealth is identical to the moral problem that arises from the attempt to secure positive rights within the American constitutional framework, discussed in Volume I. Both a politics of redistribution and a regime of positive rights are incompatible with American constitutional order because both such objectives inevitably violate the unalienable rights of certain individuals—those whose income is taken without their consent. Social or distributive justice and traditional justice can never be squared; they are inherently in opposition. Regardless of the nobility of the particular purpose—everyone wishes to house the homeless—policies of redistribution cannot be enacted without injustice to certain individuals, without violating their individual rights to liberty and property and the principle of consent.

  Such violation is morally impermissible on the traditional American view, which conceives the individual and his unalienable rights as the locus of moral concern. Moreover, traditional justice comprises deontological rules of conduct, that is, certain actions, certain means of realizing one’s purposes, are regarded as right- or wrong in-themselves. If it is intrinsically wrong to steal, to take a person’s property without his consent, then it is wrong for anyone, an individual or a political majority, to do so. Moreover, conduct that is wrong-in-itself cannot be justified by any ends, however desirable. If it is intrinsically wrong to take a person’s property without his consent, then it is wrong to do so whether such action is taken to feed a narcotic habit or house the homeless. In the present case, the means employed to house the homeless—political redistribution of wealth—necessarily violate the natural rights of those individuals taxed without their consent to fund the program. To violate the rights of such individuals not only violates justice as traditionally conceived but is wrong-in-itself. No ends, however virtuous, can justify immoral means.

  For such reasons, as has been observed, proponents of social justice must and do reject the traditional American conception of justice. They must and do reject the notion of natural and unalienable rights to life, liberty, and property, which Jeremy Bentham called “nonsense on stilts” and quasi-Marxist college professors dismiss as “American propaganda.”[112] Natural rights are further denigrated as mere “negative rights” and the U.S. Constitution as a mere “charter of negative liberties.” Proponents of social justice resist the limits placed on the power of the American federal government, both those implicit in the traditional social contract and those explicitly enumerated in the U.S. Constitution. Throughout the course of the past century, the pursuit of social justice has significantly contributed to the ongoing expansion of the federal government, which routinely wields powers far wider than those intended by the Founders.

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  Before concluding the discussion of the morality of social justice, several additional issues deserve brief consideration. We have seen that many voters will support policies cloaked in terms of social justice, appealing as it does to the putative superiority of an altruistic ethic. Many well-meaning people are concerned with the welfare of others—the poor, the homeless, the less fortunate, and so on—and redistributive policies in service of such groups often achieve substantial popular support. This is especially true under present forms of public finance, which generally make it difficult or impossible for individuals precisely to identify the total amount of taxes they pay over any determinate period. Individuals may know their federal and state income taxes with some precision, but it is more difficult to calculate the total amount of taxes they pay in other forms, such as sales and excise taxes, taxes passed on by producers in the former of higher prices for goods and services, and so on. Moreover, redistributive policies are often funded by general taxes, direc
t and indirect, not specific taxes on identifiable individuals or groups. Modern methods of public finance may thus readily lead individuals to believe that someone other than they themselves, the “average voters,” will bear the financial burden of providing governmental assistance to others.

  Taxes targeted on the “wealthy” or “millionaires,” as well as businesses and corporations, are especially popular with the electorate, partly due to the success of Marxist and other anti-market propaganda over the past century. Few voters, however, seem to understand that taxes levied on businesses or corporations are ultimately paid not by fat-cat capitalists but rather consumers of the goods and services produced by the taxed firms, many of whom may possess relatively little income or wealth. Business firms regard taxes as a cost of business. They will attempt to pass on the additional cost of increased taxes to the consumer, in the form of higher prices for the final good or service. To the extent they are successful, consumers, not “corporations,” pay the additional tax. If firms cannot pass on such costs to their customers, perhaps due to a highly competitive market, workers employed by the firms will suffer the burden, either through a reduction in salary or benefits or even loss of their jobs.

  Policies of redistribution, then, are often promoted to the electorate in terms that suggest that someone other than the voter himself will have to pay for the program. Some such transfer of cost often does occur. As previously mentioned, in 2012 the financial situation of approximately 47% of American citizens earned them total exemption from the federal income tax.[113] Such persons have every incentive to vote for federal policies that benefit themselves in the short run. They will personally bear little if any of the tax burden, which is disproportionately placed on higher-income earners. Moreover, the fact that the tax burden arising from redistributive policies largely falls on those with relatively higher income means that even voters who do not personally benefit from such policies may find it easy to “do good,” to express their virtuous altruism, by supporting redistributive policies intended to help the less fortunate. It is easy to step into a voting booth, pull the curtain, and direct money to the homeless, money that will come, or that one thinks will come, from someone else’s pocket. The altruistic voter for social justice does not personally have to help those in need but can simply vote to compel others to do so.