Ethics of Voting Part III

 by George H. Smith

 7. Recapitulation

In Part Two of this article I sketched a theory of institutional analysis whereby individuals, filling institutional roles, contribute unintentionally to the goals of an association (i.e., a designed institution). Institutional analysis does not violate the principles of methodological individualism. On the contrary, anarchist theory relies on institutional analysis for its coherence. Anarchists who defend political office-holding and electoral voting cannot reasonably do so by opposing institutional analysis as such. Unless political libertarians are willing to purge their vocabulary of all institutional terms (“State,” “society,” the “market,” etc.) and all institutional propositions (e.g., “the State is invasive per se”), then their objections to voluntaryist arguments will reek of insincerity.

Of course, it is possible to accept institutional analysis and yet object to its particular application in the case against office-holding and voting. This is the only viable approach open to political Anarchists. Unfortunately, we possess no body of libertarian theory which treats institutional analysis in detail, so a discussion of the institutional features of voting requires considerable preliminary groundwork. Having discussed some procedural issues in Part One and institutional analysis in Part Two, I shall now explore how institutional analysis applies specifically to the State and to offices in the State. Then I shall move from institutional analysis considered descriptively to the normative or moral implications of institutional analysis. To what extent are those individuals who work within an association morally and/or legally responsible for the institutional products of that association? This thorny area is undoubtedly the most complex and controversial aspect of institutional analysis, yet it must be addressed if the moral implications of electoral voting are to be flushed out. Anarchist theory will never advance beyond a rudimentary level so long as this issue remains unresolved.

Modern States, I have argued, are designed institutions. They did not emerge spontaneously from the unplanned coordination of individuals pursuing disparate goals (such as in social division of labor). The State resembles a business organization; it was designed and established to achieve specific goals, and it has developed a sophisticated division of labor which furthers these goals.

This does not mean that all features of the modern State are designed. Economists point out that even rigidly structured business organizations and political bureaucracies exhibit signs of spontaneous order, often caused by internal competition for positions of prestige and power. Nevertheless, there are crucial differences between undesigned and designed institutions. Associations (designed institutions) coordinate individual actions to further homogeneous and predetermined goals. An auto factory, for instance, does not assemble workers, allow them to do as they please, and then accept whatever results from their unplanned interaction. Associations impose a structure of internal organization, a division of labor, to achieve particular goals. Any spontaneous order within the association is subordinated to these goals.

Modern States, far from evolving spontaneously, arose from the desire of political rulers to establish territorial sovereignty. The State’s spontaneous order occurs within these parameters. A State cannot allow developments that weaken its territorial sovereignty; it reacts quickly and decisively against all threats. The spontaneous order in society generally, on the contrary, operates under no such constraints. Social institutions may change drastically or die altogether without the interposition of force to prevent these changes. A similar hands-off policy is unthinkable for States.

8. “Invasive Per Se”: The Minarchist-Anarchist Debate

The core of anarchism is the claim that the State is necessarily invasive, or invasive per se. This is also the point of contention between anarchism and minarchism. If the basic institutional purpose of the State is one which could be accomplished by voluntary means, then the State is not necessarily invasive. If one were to argue (however implausibly) that the institutional purpose of the State is to deliver mail, then the fact that existing States use invasive means (taxation and a coercive monopoly) to provide this service would have no direct bearing on the theoretical question of whether invasive means must be employed to accomplish this goal. A totally voluntary mail service could be established; and if mail delivery is the defining characteristic of the State, then we have the theoretical possibility of a “voluntary State.” In this view, one could push for the elimination of the invasive aspects of the current government until it is pared down to its “proper” function of mail delivery. If we substitute “defense of individual rights” for “mail delivery” (one is as arbitrary as the other), we have the minarchist argument for the possibility of a non-invasive State.

The anarchist rejects the argument that the basic institutional purpose of the State is one which could theoretically be achieved by voluntary means. The anarchist considers the fundamental purpose of the State to be territorial sovereignty, and this is inherently invasive. Beginning with the libertarian prohibition of invasive acts, the anarchist adds the insight that the State is invasive per se — i.e., it must commit invasive acts to fulfill its basic purpose. When the nonaggression premise is applied to this view of the State, the consequence is a total rejection of the State on libertarian grounds. Thus, as I argued in Part One, anarchism is more than libertarianism. Anarchism is the nonaggression axiom combined with a particular view of the State — a view that relies on institutional analysis.

The minarchist-anarchist debate revolves around the essential (or defining) purpose of government. Minarchists assert that the “proper” function of government is defense of individual rights, broadly conceived (police, military, and judicial system). But it is unclear what “proper” means here. If it means “morally proper” — i.e., the State cannot legitimately exceed these boundaries — then no anarchist will disagree. No institution, by whatever name we call it, may properly violate rights. But why the State should be the focus of defense remains a puzzle. Minarchists must show that States were designed (in a substantial number of cases) with the defense of rights as a fundamental purpose. Unfortunately for them, history does not smile on this thesis. Territorial sovereignty was clearly the purpose leading to the organization and consolidation of modern States. This required a monopoly of legitimized coercion to eliminate potential competitors or those opposed to sovereignty altogether. The State’s monopoly on the means of coercion left it little choice but to provide a semblance of defense for its subject. The provision of these “services” plays an important role in legitimizing State rule (to preserve “law and order”), without which mass compliance would be difficult to achieve.

The anarchist thesis — that the State is invasive per se is an institutional judgment. It attributes an invasive purpose not to every person who joins the State but to the institution itself. Most of the State’s members may not personally care care about,or even know of, arcane subjects like territorial sovereignty. They may work for the State just to make a living. Others may find satisfaction in wielding power, and still others may have the sincere desire to accomplish something worthwhile. Political libertarians usually fall in the latter category. They see themselves as harbingers of freedom. When it is pointed out that their personal intentions — why they choose to join the State — are an issue distinct from their objective role within the State apparatus; and when it is argued that, insofar as they fulfill their roles as political office-holders, they thereby contribute to the institutional goals of the State, they protest that they do not personally aggress against anyone. Short of catching them with a smoking revolver, they claim exemption from the anarchist curse of the State and its agents. (Never mind that the smoking revolver test would exonerate the vast majority of State employees from personal liability; such inconvenient details are passed over by the political anarchist.)

The political anarchist professes to “hate the State” while avoiding a clear identification of who, or what, constitutes “the State.” Understandably, he does not wish to agonize over how to exempt libertarian members of the State from his supposed disdain. The political anarchist “hates” the State but seems to “love” the political offices that comprise the State. How the State is anything more than the combination of these offices acting in concert to attain institutional goals, is yet another mystery. If consistency is too much to expect of political anarchists, they might at least explain what they mean when they say that the State is invasive per se.

9. A Moral Problem

Political anarchists sometimes speculate on which governmental jobs they may consistently hold. They frequently distinguish between jobs which are necessarily invasive (tax collection, conscription) and jobs which, though financed coercively at present, would be permissible in a free society (mail delivery, school teaching). This dichotomy presumably answers the question of when libertarians may work for the State. A libertarian could work for the post office, for example, since mail delivery is not inherently invasive; but a libertarian could not work for the Internal Revenue Service. In deciding whether a libertarian could hold a political office, therefore, we should determine to which of these categories the office belongs.

I have heard this argument many times, though it has not received much attention in print. But the proposed criterion — distinguishing State offices which are invasive per se creates serious difficulties for the political anarchist.

Consider the argument that anarchists should not work for the Internal Revenue Service because tax collection is “invasive per se.” Note how this assertion immerses us in institutional analysis. For what does it mean to say that the I.R.S. is “invasive per se”? It does not mean that theft is the personal goal of every I.R.S. employee. Nor does it mean that every I.R.S. employee personally aggresses. The secretary, the file clerk, the accountant, the computer programmer — these and similar I.R.S. jobs do not require aggression or threats of aggression.

Clearly, when the political anarchist says that the I.R.S. is invasive per se, he means that the institutional purpose of the I.R.S. — the end to which lesser roles contribute — is invasive per se. So if it is impermissible for anarchists to work for the I.R.S., this is because institutional roles (jobs) in the I.R.S. contribute to its invasive purpose of theft — even though the roles themselves, considered in isolation, do not require personal aggression by all employees.

The same argument applies to employment with the Selective Service, drug enforcement agencies, and so forth. Only a minority of their employees personally aggress. Yet it is generally assumed by political anarchists that working for these invasive agencies violates libertarian principles.

This line of reasoning has devastating implications for political anarchism. An anarchist, it is said, cannot work for the I.R.S. or the Selective Service because these agencies are “invasive per se.” Yet we have seen that the essence of anarchism lies in the claim that the State itself is invasive per se. If the invasive nature of the I.R.S. precludes anarchists working for it, then why doesn’t the invasive nature of the State preclude anarchists working for it as well? If anarchists may not hire themselves out to the I.R.S. even if they avoid personal acts of aggression, then neither may they hire themselves out to the State in general — which is also invasive per se — even if they likewise avoid personal acts of aggression.

The political anarchist cannot have it both ways. He cannot invoke the “invasive per se” test with tax collection, conscription, drug enforcement, etc., and yet disregard it for the State in general. The political anarchist has two options: (1) He may deny that the State is invasive per se, thus defining himself out of anarchism; or (2) he may concede that an anarchist may properly work for an agency that is invasive per se, so long as the anarchist does not personally aggress. Neither of these options is very palatable. The first strips the political anarchist of his anarchist credentials, while the second opens a Pandora’s Box of job opportunities for anarchists. If the political anarchist seriously wishes to defend the propriety of anarchists working for the I.R.S., Selective Service, drug enforcement, the C.I.A. — the list goes on and on — then let him make his case.

The political anarchist is thus caught on the horns of a dilemma. He cannot reject the “invasive per se” criterion for the State while using it for particular agencies in the State. He cannot deny institutional objections to political office-holding, invoking the smoking revolver test instead, while advancing institutional objections against particular State agencies, thereby discarding the smoking revolver test when it suits his fancy.

Thus, either the political anarchist must become a voluntaryist, or he must introduce new (and hitherto undreamed of) employment opportunities for “anarchists.” Either he must abandon the case for political office-holding, or he must champion the legitimacy of anarchist employment in a wide variety of repulsive agencies. The latter is the only option short of capitulation.

10. Office-Holding and State Membership

The State, like all associations, has an identifiable membership. The institutionalized power of the State is a scarce resource; not everyone can benefit from its use simultaneously. The fierce competition thus generated for the control of State power necessitates membership criteria to restrict entry.

Membership criteria vary according to the form of government. An accident of birth may qualify one for membership in hereditary monarchies and aristocracies. Some forms of aristocracy encouraged the sale of political offices (“venal offices”), which then could be transferred like private property.

State membership in a democracy is theoretically bestowed by popular election, or by appointment authorized by a duly elected official.

Whatever the membership requirements, an office-holder acquires special privileges (legal rights) denied to the public at large. On the lower levels of State employment, this privilege may be nothing more than a claim on tax revenue in the form of a regular paycheck. As we ascend the hierarchy of power, however, the privileges become more extensive. Higher level office-holders enjoy considerable discretion in the exercise of power.

This power may be unlimited, as in despotism, or restricted in some fashion, as in a constitutional republic. But the privileges conferred by State offices always entail legal rights denied to nonmembers.

Political office bestows power on the occupant of that office. Bertrand de Jouvenal (The Pure Theory of Politics, Cam. bridge Univ. Press, 1963, p.118) makes this point in an interesting way:

In the museum at Corinth there are two statues, artistically worthless, which testify to the fashion under Roman rule of setting up in a place of vantage the standing figure of the governor. The sculptor has reproduced, with uninspired exactitude, every detail of the military costume borne upon occasions of state by the representative of the civitas imperans. Only the head is lacking, nor is it by accident: a hollow between the shoulders reveals grooves designed for the fitting of a removable head upon the massive body. Thus were the citizens spared the expense of putting up a new statue to honour a new governor: the old face was taken down and a new face was set in its stead. This can serve to symbolize established Authority. The statue has been set up at some previous time and lasts through many generations; but the face must be that of a living and active magistrate. The end of a life, or of a term, removes the transient head from the enduring shoulders. There is now a void to be filled, an opportunity for a new man to lift his head on to the shoulders of the statue … A complex political system comprises many statues, and the procedures for lifting heads on to them are diverse.

The legal rights of high political offices in the United States are determined primarily by the Constitution (including judicial interpretations of the Constitution). We needn’t engage in a lengthy argument to show that political privileges thus acquired run contrary to the principle of nonaggression. A reading of the Constitution alone is sufficient. Art. I, Sect. 10, for example, vests in Congress the power “To lay and collect taxes, duties, imposts, and excises … To regulate commerce with foreign nations … To coin money … To establish post offices and build roads … To declare war … To provide for calling forth the militia to execute the laws of the Union,” and so forth. To say, as does Art. I, Sect. I, that these “powers” are “vested in” Congress means that the physical might of the State will be used to back up Congressional decisions in these areas should any citizens disobey or resist. Some members of the State, in other words, will call on other members of the State (police, military, etc.) to enforce their will.

Members of Congress have immense power; their decisions are backed by the physical coercion of the State. If my neighbor decides to rob me, it is unlikely that he can enlist the power the State to assist him. But if a Senator decides to rob me (by voting for a tax bill), the full weight of the State will fall on me should I resist.

Members of the State are thus allied in a common cause; they share an enforcement mechanism whereby their decisions will be enforced at the point of a gun. An office-holder has objective power commensurate with his legal rights. The more privileges he enjoys, the more power he wields. This power exists independently of what he decides to do with it. It exists prior to any action he may take in office, because it is inherent in the office. By the fact that an individual qualifies for an office, he acquires the legal rights of that office.

Legal rights — privileges enforced by the State — exist apart from their exercise, just as natural rights do. A man has a natural right, say, to purchase an aardvark, even though he may never actually purchase an aardvark in his life. The right exists whether he exercises it or not.

Similarly, the office-holder acquires special legal rights which exist independently of their exercise. The Senator, for example, has the legal right to pass tax laws — meaning that the State will back him up if he does so. A particular Senator (e.g., a libertarian) may never actually vote for a tax bill, but he has the legal right nonetheless. The privilege resides in the office.

A person elected to high political office allies himself with the power of leviathan. He voluntarily seeks and successfully achieves the privileges of political office which permit him to aggress against his neighbors — privileges enforced by the State.

Such a person is a dangerous threat to innocent persons everywhere. Not only has he captured a position of immense power, but he also swears an oath of allegiance to the Constitution and accepts payment (i.e., stolen money) for “services rendered.” When a person voluntarily seeks and attains invasive power, swears to enforce the rules that maintain his power, and receives a handsome salary to boot, the conclusion is inescapable: this person has become a full-fledged member of the State. He accepts its privileges, pledges his loyalty, and reaps its rewards. The protest of the libertarian office-holder — that he intends to use his power for beneficent ends — is beside the point. His actions speak louder than words. He has joined the “ruling class.”

11. The Ruling Class

In the tradition of Mosca and Pareto, libertarian anarchists embrace a theory of the ruling class based on political, rather than economic, criteria. Those who hold positions of significant political power, according to this view, are members of the “ruling class.”

Political anarchists are hard-pressed to reconcile their ruling class theory with their advocacy of political action. Political criteria for the ruling class will include libertarian politicians in their purview. The specific behavior of politicians does not determine whether they are part of the ruling elite. (A congressman does not leave the ruling class when he votes correctly and re-enter when he votes incorrectly.) Rather, those who hold significant positions of power in the State belong to the ruling class, regardless of what they do with their power. This includes libertarian office-holders.

Ruling class theory is just one of many areas where the political anarchist dodges the implications of his own theories. Sooner or later these issues must be confronted. Is the libertarian congressman objectively a member of the ruling class? If not, why not? If so, then presumably a “ruling class” is not necessarily evil or undesirable by anarchist standards. This, too, requires some explaining.

12. The Paradox of Liability

In the earlier parts of this essay I touched on an important subject without examining it in detail. Why is it, I asked, that “anarchists often impute greatest liability to the highest levels of political decision-making (presidents, legislators, etc.). even though these levels are far removed from physical enforcement”? I suggested that such judgments occur within an institutional framework, according to the role played by political offices in sustaining State power. We are now able to expand on this insight.

We are addressing what I call the “paradox of liability.” As we ascend the hierarchy of political offices we become more distant from the enforcement arms of government. But we also come closer to those persons who are, in a sense, most responsible for the State’s invasive activities. (As I pointed out in Part Two, “There were more condemnations of President Johnson during the Vietnam War than of individual bomber pilots.”)

Perhaps ascribing liability to high political offices is a mistake. Perhaps anarchists should blame only those who literally use physical violence (which would exonerate Hitler, Stalin, and others of their ilk). This approach causes more problems than it solves, however, not the least of which is the gutting of anarchist theory. It is safe to assume that most anarchists subscribe to some version of the liability paradox.

But does this paradox make sense? Should not the person who actually commits a crime be more liable than the politician who authorizes or commands it? In a sense, yes. A soldier who kills innocent civilians is guilty of murder, pure and simple. He is fully liable for his action. But the invasion of the individual soldier is relatively limited in scope. He may murder, but he does not determine the policy that authorizes murder on a vast scale. This is a privilege reserved for high political office (in most cases).

In a war crimes trial, President Johnson would not be as liable for a particular murder as the person who physically committed the act. But Johnson shares some liability for a vast number of similar acts. His degree of liability for a particular murder may be less, but his range of liability is far greater.

Consider another example: the tax agent who physically expropriates the property of a tax resister or drags him off to jail. Would congressmen who support taxes be as culpable as the tax agent who actually commits the foul deed? Probably not. They would be accomplices rather than principals. But the congressmen are accomplices to many such invasive acts — far more than can be perpetrated by a single agent. Although the degree of liability may be less for the congressmen than for the perpetrator, the scope of liability is far greater.

This is only a suggestion. A libertarian theory of liability awaits more work before any solution to the liability paradox can hope to be securely grounded. But I think my suggestion is a plausible step in the right direction. Its two components may be summarized as follows:

First, high political offices possess greater power (more privileges and wider discretion to dispense power) than enforcement personnel. Fundamental decisions are made at this level; this is where invasive policies originate.

Second, because the decisions of political office-holders are more fundamental, they are also more general in scope than the decisions of enforcement personnel. Their applicability is broader, because political decisions reverberate throughout the State and throughout the territory over which it claims sovereignty. Thus, when we say that President Johnson was “more responsible” for murders than individual bomber pilots, we mean:

(1) President Johnson, utilizing the power of his office, made fundamental decisions that set the State apparatus in motion.

(2) President Johnson was responsible, to whatever degree, for a broader range of casualties (a greater number of murders) than any individual bomber pilot.

13. Political Offices as the Manifestation of Sovereignty

The paradox of liability helps us to understand how political offices bolster State sovereignty. High offices are distinguished by their fundamentality and scope. Therefore, we may reasonably expect territorial sovereignty — the fundamental goal of the State — to be embodied in the most powerful offices. This is indeed what we find. The guardianship of State sovereignty is the most significant institutional role of high offices. They are designed to preserve and promote that sovereignty; and this purpose is served regardless of who occupies the office, so long as the occupant meets the demands of his job. (See the discussion of the auto worker in Part Two.)

E.T. Hiller, in A Study in Principles of Sociology (Harper and Row, 1947, pp.581-6), describes the relation between offices and the association they comprise:

Various functions are required to maintain an association and promote its aims. These functions, when standardized, constitute statuses which are usually referred to as offices. An office consists of the delegated administrative, executive, supervisory, and ceremonial functions belonging to an association (whether public or private, official or voluntary). It comprises prescribed, institutionalized duties and, comparable rights and privileges … The office is an expression of the special aim or aims of the association … In each type of association the authority of an office is derived from the aim to which the association is committed, the authority proceeding from the higher to the lower ranking positions … An office … is an established system of social relations which constitutes a part of the social organization. By entering [an office] the incumbent is required to play the specified part in maintaining the given social structure.

The highest legislative, executive, and judicial offices are the incarnation of sovereignty. This was obvious to the framers of the Constitution, even if it escapes many political libertarians. Assertions of sovereignty precede the enumeration of powers for each branch of government. To wit:

Art.I, Sect.I: “All legislative powers herein granted shall be vested in a Congress of the United States .. .”
Art.II, Sect.I: “The executive power shall be vested in a President of the United States of America.”
Art.III, Sect.I: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

Note well the wording. “All legislative powers,” “The executive power,” “The judicial power.”

An absolute monopoly of these functions is proclaimed at the outset — a monopoly enforced at the point of a gun. No competition can ever be permitted at this level. The State could abandon its monopoly on virtually every “public service” and yet remain a sovereign entity. But it cannot surrender its monopoly of political decision-making without surrendering its sovereign lifeblood.

Major political offices thus embody the basic claim of sovereignty: that members of the State have the sole legal right to rule a certain territory. If power reflects a spirit of arrogance — the impertinence that one person has the right to tell another person how to live — then political office is the body in which that spirit dwells.

Suppose a libertarian Senator votes against every piece of invasive legislation. Can he be held accountable for that legislation, if it passes despite his opposition? No. But that Senator is responsible for sustaining State power on a more fundamental, if less obvious, level. In filling his role as Senator — taking his oath of office, exercising his monopoly privilege to decide how we shall be ruled, etc. — he furthers the basic institutional goal of the State: territorial sovereignty. By accepting the framework in which the State operates, by capitulating to its conditions and demands, by voluntarily joining the “ruling class,” thereby acquiring legal privileges backed by leviathan — in a myriad of ways does the libertarian politician do all that the State requires of him.

The libertarian politician, brimming with good intentions. believes that he will use the State to further his ends. The sad truth is that the State will use the libertarian politician to further its ends.

[ Part I ] — [ Part II ] — [ Part III ]

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