"There is no maxim in my opinion which is more liable to be misapplied, and which therefore needs elucidation than the current one that the interest of the majority is the political standard of right and wrong...." ~ James Madison
What Really Matters
Exclusive to STR
January 15, 2007
The majority of Americans, whatever their complaints about particular policies or politicians, will profess support and admiration for the basic form of America's government, and will concede the legitimacy of what the government does. Now that things like hereditary birthrights and god-kings are out of style, the legitimacy of the government is usually said to be conferred by the government's moral ideals and legal principles. If asked what makes the American form of government great and worthy of support, you'll get a number of answers, but high on the list will be the ideal of equality. We have no kings, no privileged class. We're all just citizens, with equal rights and responsibilities. All are subject to the rule of law. Libertarians know it doesn't quite work that way, of course. Non-libertarians, knowingly or otherwise, endorse a double standard for state officials. If I imitated the state's power to draft soldiers by going door to door demanding labor services and threatening bodily harm to those who refused, I would be put in prison. A government official who did the same is just doing his job, and anyone who resisted his aggression would be put in prison. Most people have been taught to accept this; they consider it right and proper that there is one set of laws for the state's officials, and one set for everyone else. Still, there is the professed ideal, even among statists, that if a state official does break the government's law, he is liable to punishment in the same way that the rest of us are. This is a poor substitute for real equality, of equal obligation to moral as well as positive law, but it is better than nothing. It checks at least some government mischief, and reflects a recognition, albeit an imperfect one, that our rulers and their agents are mortals and not gods or ubermenschen. As we shall see, however, in practice it often is more important as a legitimating myth than a reality. Like the Constitution and elected government, equality before the law is something everyone even approaching the mainstream of the political spectrum professes to support; it is one of the pillars on which the American state's legitimacy rests, one of the things that is supposed to be basic to our society's proper functioning. Though this form of equality is held up as a reason for the goodness of America's government, it is interesting to see how openly and brazenly some people cast it aside when convenient. This was brought to me full-force by the public adulation in the wake of the death of former President Gerald Ford. What, more than anything else, was Ford praised for in the days after he died? Pardoning Richard Nixon for obstruction of justice and for any other crimes he may have committed while in office. In other words, Ford was a great president because he put former President Nixon above the laws that us commoners follow. This was said to have 'healed' the country and spared us the divisive spectacle of a former president on trial, which, we are told, would have impaired bipartisan efforts and damaged people's trust in government. That's key. Did the people praising the pardon explicitly say that equality before the law was a bad thing? Of course not. They are largely the same sort of people most likely to mouth platitudes about the state's virtues, legal equality high among them. People who consider maintaining trust in the government so important are not going to openly attack one of the state's chief justifications, whether they are sincere 'good government' types or cynical manipulators. Indeed, if you asked any one of these people if equality before the law was an important American value, I would be flabbergasted if even one of them said 'No.' Nixon didn't just violate libertarian standards of justice, which few people consistently apply to government officials; he violated the government's own laws. If defenders of the pardon took equality before the law seriously, they would have wanted to see Nixon nailed to the wall for what he did, to show that no one is above justice. Instead, they praise the fact that Nixon went free (while his co-conspirators went to prison), because applying the full force of the law to Nixon would have embarrassed the state and made it harder for the ruling parties to work together (which, of course, in practice always mean more statism, not less.) When something that is supposed to be one of the fundamental pillars of our society goes up against the need to maintain public trust in the government, guess what wins? That should give you an idea of what is really considered important.