How Egalitarian Is the Rule of Law?
I. Politics: Subjective, Not Objective
In the democratic lexicon, justice is a concept often defined in reference to objectivity. Theoretically, rule of law demands that all citizens be treated equally by those whose authority stems from the law. Neither judges nor legislators are to give preferential treatment to groups either because of their own personal biases or more widely held notions of social status: a rich man who commits the same crime as a poor man should receive the exact same punishment.
Pragmatically, however, such objectivity is impossible. And, according to the writings of James Madison, chief architect of the American system, undesirable.
The bedrock of America’s political structure is not objectivity but discretion.
As Madison writes in Federalist 41, which discusses the powers conferred by the Constitution, “in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused.”
This emphasis on the powers of individual discretion is tied to Madison’s understanding of faction, an integral part of any political system that wraps itself in the mantle of democratic processes.
Faction, according to Madison, is simply a group of people whose viewpoint is “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” (Federalist 10)
Faction cannot be exorcised from government. Democratic systems champion self-interest: Individuals in the polity use their welfare as the rubric by which political actions are judged. A representative who supports placing price controls on agricultural products is not likely to be looked upon kindly by farmers, whose livelihood is threatened by such policy. In turn, representatives’ interests are tied to those of their constituents: the legislator who listens to his constituents and acts to promote their welfare is more likely to stay in office than one who pursues his own personal agenda.
Faction becomes detrimental to the political process when one group holds enough power to run roughshod over another. Hence the proportion of proportionality to representative government: a pluralistic legislature, wherein many different perspectives contribute to debate and discussion, may not accomplish much. However, because no group is in the clear majority, one group must lobby others in order to build a coalition that ensures legislation will pass. This means different factions meet each other on the battleground of ideas: one group must convince another that their idea benefits not just those of a particular interest, but perhaps others more broadly. And, perhaps most importantly, they must prove their ideas are not of detriment to anyone’s interest.
Thus, as Madison writes in Federalist 10, the “regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.”
But this means the individual’s discretionary process is an integral part of the legislative process. Or, as Madison states in Federalist 41, “in all cases where power is to be conferred, the first point to be decided is whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectively as possible against a perversion of the power to the public detriment.”
II. The Common Good?
However, there is a fundamental conflict that arises here and this involves the consideration of the public good.
What is the public good and who has authority to define it?
By definition, those who have the authority to make this decision are the members of the majority faction. But whilst they are using subjective perception—the power of individual discretion—to make this judgment, they are imbuing it, by tying it to the authority of government, with objectivity.
The fact that minority groups have an ability to participate in the conversation surrounding the decision-making process is meant to soften the blow associated with not getting one’s way politically, but this does not change the fact that autonomy is lost in this process.
Does this, one must ask, really mean “the public good” is served?
Invoking the public good in political discussion means collectivizing value but filtering it through the judgment of individuals. Which effectively means that the proportionality so essential to justice in representative government is rendered null. When a group of individuals is allowed to determine for another where their best interests lie, their power is magnified to a degree far beyond that which is actually represented by their power. The power of a faction, politically speaking, is the portion of the overall population their members constitute. This is true even when a faction is in a majority. Individual rights, it must be remembered, are inalienable and cannot be swept away by democratic edict.
Yet, by giving the majority power to define “the public good,” this is exactly what is being done. Worse, because government agents are mediators between individuals and their interests, citizens whose viewpoints may dissent from the minority are subjugated twice over: first by public servants who have authority to speak for them and second by the majority view, given a permanence and objectivity by the force of law with which it is imbued.
And herein lies the central paradox of American government: the law-making process is rooted in the discretionary powers of the men and women whose energies give life to its constituent bodies. This is a subjective, not objective process. Yet, once passed, the law is made objective, so that even though not everyone’s discretionary judgment weighs equally in its crafting, everyone is bound in the same manner by it once put into practice.
It is hard to see how such a process protects the rights of individuals, particularly when their ability to define their own self-interest is undercut by government’s preoccupation with the public good. The nature of government does not allow all individuals to participate in this process, yet expects all individuals to be bound by the value-judgments of a few.