Dear Elected Representative

Dear Elected Representative,

Winning a popularity contest does not entitle you to violate our basic human rights. Nor does it imbue you with the expertise necessary to reshape society, nor the wisdom necessary to pick the ideal society from the infinite variety of possibilities.

Your responsibility as a policymaker is very much more circumscribed than what many of your colleagues presume. Your rightful authority extends only to those matters that require society-wide consensus. All of society gets the benefit from pollution mitigation, so it makes some sense for government to help set guidelines and limitations on what kind of pollution we can emit, be it from our personal automobiles or industrial processes that produce the consumer goods we buy. To the extent that crime control is a public good, it makes sense for you to make decision regarding the allocation of public funds to policing and incarceration. To the extent that it is infeasible for us to individually undertake public works, such as building dams and canals and public roads, it makes sense for you to allocate public funds and establish easements across private property and compensate property owners for the confiscation of their property. If judicial rulings are confusing or conflicting, the legislature is responsible for clarifying the law. If some provision needs to be made for national defense, the amount of public spending on that is within your purview, and so is the appropriate allocation to various branches of military, along with decisions about the kind of personnel and technology needed for adequate defense.

This is a fairly narrow range of responsibilities compared to what government currently does. You and your colleagues have gone far beyond your mandate. All of the legitimate functions of government mentioned above, and some that aren't explicitly mentioned, are in the class of "public goods" or "externalities". They entail situations in which the rational choice for a private individual is irrational from the point of view of society as a whole. We might all shirk on chipping in for national defense, even though we all want the benefit. We might like to reserve the option to rob our neighbors, even though we all benefit from general prohibitions on crime and enforcement mechanisms. We might like to reserve the right to be a curmudgeonly hold-out against an annoying confiscations of our property, even though we enjoy the benefits of canals and roads secured by involuntary easements across private property. We might want to pollute more than what is socially optimal, given that we individually get the benefits of polluting while bearing almost none of the costs, which are diluted across society as a whole.

You have a mandate to clarify the law where judicial decisions are confusing or contradictory. You do not have a mandate to create new law out of whole cloth. Consider a labor dispute. Suppose one judge rules that employers may dock their workers pay for perceived losses in productivity, while another judge in the same district rules that such losses are a "cost of doing business" that the employer must simply absorb. Employers and employees alike will be clamoring for some kind of clarity so the law of the land is predictable and reliable for normal people. You are within your rights to settle such conflicting rulings. You are not within your rights to repeal long-standing common law, nor are you permitted to bend society toward your imagined ideal. Legislation should not be used to ban long-standing commercial practices between willing participants. If borrowers patronize lending services where the interest charged is "too high" (in your estimation), the appropriate response for you is to recognize your own failure to understand consumer behavior. It is not appropriate for you to bend consumer behavior until it fits with your preconceived vision. If workers accept wages that are below what you consider sufficient or dignified, that doesn't mean the workers are foolish or the employers are greedy. It means you've failed to understand why someone else's behavior in the marketplace is rational from their point of view. Any mental impressions you hold about the marketplace are a commentary about you, not about the world. The failure of the marketplace to adhere to your idealized vision is a failure of your imagination, not a failure of reality itself.

Human beings have rights. You have a sacred duty to never abridge those rights, even though you wield power and will often have the opportunity to use it beyond your true mandate. At the most basic level, we have bodily integrity. Personal autonomy. Self-ownership. We have sovereignty over our bodies, meaning others cannot initiate violence against us without an overwhelmingly compelling reason. Sometimes people do things with their bodies that other people don't approve of, but they do not require our permission. Left to their own devices, people will eat or drink to excess. Smoke tobacco. Take psychoactive drugs that most of society doesn't approve of. Engage in prostitution, buyers and sellers. Sell their organs. Jump out of airplanes, ski, ride horses, climb dangerous mountains. You are permitted to object. You are permitted to write polemics condemning the behavior as immoral, even to the point of being an unreasonable prude. But you are not permitted to use the power of government to "fix" the problem, to forcibly straighten the crooked timber you see before you. People in your position are often tempted to "do something." They are embarrassed by public health statistics for their region or for the nation as a whole, so they want to reduce the amount of obesity or alcoholism or some other problem for which we compare unfavorably to some other nation. But it is not the proper role of government to eliminate vices, so long as those vices are freely chosen and harming only the persons engaging in them. It is not our duty as citizens to present a pleasing tableau to the world or to our rulers; I have no obligation to conquer my vices and addictions so that the public health statistics look better to observers. If people own their bodies, the state is not permitted to interfere with their decisions to indulge vices. If the state does interfere, it is literally claiming a controlling ownership stake in its citizens bodies. If this talk of rights and self-ownership is too mushy and abstract for you, you should remember that the practical consequences of vice prohibition (particularly drug prohibition) have been terrible: black market violence, massive amounts of unnecessary incarceration, tainted drugs leading to unnecessary overdoses, communicable diseases among intravenous drug users, which often spread beyond that population. It has been truly awful, and it is entirely the fault of social engineers who wished to "do something." They made an existing problem worse, and they barely had any effect on the overall amount of drug use.

Human beings also have the right to freely transact with each other under any mutually agreeable terms, whether money changes hands or not. As long as they are not significantly harming third parties who aren't involved in the transaction, the transacting parties should be allowed to exchange under any terms they agree to. People have an intrinsic right to engage in verbal, commercial, and sexual intercourse without requiring the consent of society at large. Deviations from this principle have historically included prohibitions on interracial and same-sex marriage, penalties against premarital sex, anti-sodomy laws, the jailing of anti-war activists during World War I, and laws preventing free commerce between whites and blacks during the Jim Crow era, to name just a few. It's an ugly history, even if we constrain ourselves to the United States in the 20th century. I think we've mostly crossed that bride together, and we're not going back. Using the machinery of the state to enforce anti-sodomy laws or premarital sex prohibitions seems beyond prudish. If someone actually proposed assembling a police force to harass such "violators", they would seem downright barbaric. (Bear in mind that anti-sodomy task forces used to exist, and police harassment of gay clubs was somewhat routine.) The era of using the state's monopoly on violence to enforce "traditional" sexual norms is over, thank goodness. (At the same time, the police have finally started taking sex crimes, meaning actual crimes with actual victims, seriously. Be clear about the distinction between what is consensual and what is not. Some crafty polemicists try to blur the line or muddy the waters with borderline cases, but most of us are wise to those tricks.)

Commercial transactions and non-commercial forms of human intercourse are not made of different stuff. Nothing special happens when money changes hands. We're free to have interchanges involving speech, be it a private conversation or a rousing speech delivered in a crowded lecture hall. We're also free to set our living arrangements with other adults who agree to the terms. Sometimes this means traditional marriage, sometimes it means a non-traditional romantic relationship, and other times it may simply mean picking a roommate or carrying on a friendship. Almost everyone acknowledges the right to interact with people on such non-commercial terms. It's not controversial that I am free to invite anyone I wish into my home, serve them food, converse with them, invite them to any room in my home, etc. So long as I am not keeping them against their will, and so long as they aren't coming in uninvited, there is essentially no limit to what people can do in their personal lives on their personal property. We should acknowledge that there is nothing inherently corrupting about the exchange of money. It doesn't facilitate exploitation any more than these other forms of non-commercial intercourse do. One can easily imagine one spouse taking advantage of the other, or one roommate shirking and taking advantage of his roommates generosity. Non-commercial relationships can be far more exploitative and far less pleasant than commercial ones, and yet we are free to engage in these transactions with essentially no government regulation at all (until someone actually commits a traditional crime of violence or a crime against property). What you need to keep in mind is that our rights do not cease to exist the moment one of us pays money to the other. You as a policymaker have no more right to regulate commerce than you do to police sexual behavior or platonic friendships or any other aspects of someone's lifestyle. If anyone can prepare and serve a meal, fix a leaky faucet, or have sex for free, they should be able to do these same acts for money, and should be free to do so without interference from you. Even if this talk of "rights" falls on deaf ears, there are practical reasons for the state to not regulate commerce.

Outside commentators may scold one or the other party for being too stingy. They may idly lament that one party gets a raw deal. They may ruminate from their armchair about the social structures or power differentials that lead to injustice in the marketplace. But it must always be held in mind that these parties are transacting willingly. They are often making the same "unfair" transactions repeatedly, implying that 1) it is a beneficial transaction for the "oppressed" party and 2) the "oppressor" party's scheme is apparently not profitable enough to attract competition, which would certainly make the terms more favorable to the oppressed party. The sad reality is often that the "crappy job" is the best possible work given the resources we have available, and any deviation from the existing arrangement would make both worker and employer worse off. The worker's output is probably not worth much more than what they are actually paid for it, and the employer is probably not reaping a huge profit. If you are imagining that the worker creates a large pile of wealth and the employer arbitrarily captures most of it, your model of reality is mistaken. There simply is not much of a surplus to divide up. Attempts to make the transaction more favorable to the worker will quickly reduce the employer's share of the surplus to zero, rendering the transaction pointless from the employer's point of view.

Some low-skilled workers are willing to accept low wages that you may see as undignified. Other workers are willing to work for employers who don't provide health insurance or other benefits. Such workers would rather take their compensation in the form of take-home pay. Others workers might be willing to work dangerous jobs or work long hours without any "overtime" provision. Some consumers are willing to buy health insurance that only covers rare, catastrophic expenses; they will forego coverage of routine medical expenses (routine check-ups, most medications, birth control, Viagra, etc.). They understand that it's not so hard to pay for these things out-of pocket, and they can be financed by the money saved on premiums by purchasing a less "generous" insurance plan. It is not your right to overrule their preferences as workers or as consumers. You might imagine that you can make the terms of these exchanges more favorable to one party (typically whichever party happens to be a more sympathetic interest group to the voting public), but this is economically implausible. You aren't capable of demanding that employers "give" their employees benefits. Those benefits ultimately come out of the workers' paychecks, so there is no net transfer from capitalist to worker. If you successfully compel employers to give their employees $5,000 worth of benefits, then those employees' take-home pay will fall by $5,000, at least in an in-the-long-run-and-on-average sense. Someone who was perfectly happy with $50,000 a year is now (after the passage of a mandate) getting $45,000 plus benefits that cost $5,000. We can presume they are worse off, because they always had the option of spending $5,000 of their own money on those benefits. Mandates that compel employers to provide benefits make employees worse off. They reduce the options available to employees. If your mental model of such mandates is that these are transfers from the capitalist class to the working class, that model is emphatically wrong. Likewise for mandates that health insurance must cover routine medical expenses. Insurance companies are smart, and they price these provisions into their contracts. Their actuaries estimate the expected future cost of those mandatory benefits, and insurance premiums rise by at least that much. People easily fall prey to the fallacy of composition here, thinking that "If government forced my insurer to pay for this procedure, that would make me better off at the expense of the insurer." That might be true of a one-off that was unlikely to ever happen again, but a policy of mandating predictable "transfers" from insurer to insured nets out to no transfer at all.

Some observers imagine the workers and consumers in conflict with large, powerful businesses, and government standing as a bulwark against the corporations. Once again, this is the wrong model. In the cases mentioned in the above paragraph, attempts to intervene yield no benefit. In fact they often cause tremendous harm. And these examples are quite typical of government intervention more generally. Even if you don't acknowledge our right to transact freely (perhaps because you see society as an ant colony that should be optimized for its production or display value), you should bear in mind these very practical reasons not to interfere.

Let me dispel some other illusions. If you imagine that government is "the helm" from which society takes its marching orders, your model of reality is wrong. If the legislature and executive functions of government were to cease completely, commerce would continue. Food and goods would find their way to communities, production would continue. Obviously we are not a centrally planned economy. Millions of individuals acting independent of any mandate from the government, following price signals in a free market, are what make the world go round. In no meaningful sense is the government in charge of this process. It is no in any sense "running" society.

Another illusion is the "mandate from the will of the people." Anyone who has won an election is likely to claim such a mandate. People like to wax poetic about "democracy", the rule by majority. Politicians often use it as an excuse to do all manner of horrible things. Let me simply point out that nobody takes this argument seriously. When the law is wrong but popular, reformers rightly argue that the law is wrong! They do not usually say that imposing the wrong set of laws is the right thing to do until we change enough minds. Popular opinion can be wrong, and everybody knows it. Moreover, when these same people get their way via undemocratic means, they often cheer. Anti-sodomy laws were ended in 2003 and gay marriage was instituted in 2015, both by the action of the Supreme Court. Brown vs. the Board of Education was a court decision, not a popular referendum. Almost nobody who favors these changes laments that the majority didn't get its way. Democracy is great as a check against tyranny, and it is to some degree necessary for those decisions that are inherently collective, like pollution control or national defense. But it was never meant to be a cudgel by which the majority can oppress unpopular minority groups. It isn't necessary to subject private decisions, such as the contents of someone's labor or insurance contract or the conduct in their bedroom, to a popular referendum.

Let's dispose of this "will of the people" nonsense. If you are like most candidates, you almost certainly do not acquire the consent of your constituents for all of your legislative actions. You probably won an election by being the most plain-vanilla, unobjectionable, milquetoast candidate on the ballot. Perhaps you had name recognition on your side, a powerful weapon when your job is to collect votes from mostly inattentive, apathetic, ignorant voters. Most of your constituents couldn't name you, and the ones who could wouldn't be able to describe your voting record in any detail. Likely you were the incumbent, as most winners of elections are. Perhaps you were the "R" candidate in a predominantly "R" voting district. Perhaps you ran unopposed. Do you spell out your policy positions in glorious detail, such that your constituents can actually evaluate you as a policymaker? Or do you keep them close to the vest so you have enough flexibility to switch when the political winds blow a different direction? (My state representative once gave me a cravenly non-committal answer to a question about her position on marijuana legalization and failed to clarify after a follow up question. I presume this is a routine practice. Clearly many politicians were staking out "I might change my mind" positions on gay marriage and marijuana legalization in recent years rather than committing to a position.) You did not acquire a mandate from the voters, certainly not one that permits you to trample our rights. At best, you won a popularity contest. And that's assuming the election was meaningfully contested.

You are constrained by the various constitutions that enumerate and restrict the powers of government. This includes the Constitution of the United States of America and whatever state or local constitution applies to your office. Clever legal theories invented by politicians or government lawyers have sometimes won over pliant judges and allowed governments to act well beyond their mandate. This is wrong. The plain language of the constitution, as it would be understood by us ignorant plebs not of the legal tribe, is the law of the land, even if the government refuses to follow it. To have a rule of law that requires interpretation by scholars who specialize in constitutional arguments is to have no rule of law at all. A true rule of law only exists if we ignorant commoners can understand what the law actually is. We have to be able to know ahead of time what is or isn't allowed. While the plain language of the Constitution is quite legible, the obscure, tortuous legal arguments that currently govern us are often opaque. The federal government often plays "six degrees of interstate commerce" to grant itself new powers, powers clearly not enumerated in the constitution. The various prohibitions on government action spelled out in the Bill of Rights are also binding. In case it wasn't clear enough that the Constitution only grants government the explicitly enumerated powers, the founders reiterated a list of no-nos. "Congress shall make no law..." is pretty damn clear. You will often have the opportunity to flout the Constitution, and you will likely get away with it. You are still wrong for doing so. If you find that the Constitution is too constraining, there is a process for amending it. Please follow it. If you discover that the process is unwieldy and that you can't muster the popular or political support to pass your amendment, that means the constitution is functioning as it should, as a check against government overreach. That is a feature, not a bug.

To be clear, this is not an anarchist manifesto. Nothing said above rules out a minimalist government. I did explicitly discuss the legitimate roles of government above. There are also topics I haven't touched on here, such as the welfare state and appropriate methods of taxation. As far as I'm concerned, a minimal welfare state for the truly needy can be a legitimate function of government, assuming that the problem isn't made worse (e.g. high implicit marginal tax rates leading to low employment for recipients) and assuming that private charity is not up to the task. Government obviously requires some form of taxation to fund its projects. What is not appropriate is for government to restructure society to conform to someone's vision. These rationales for government action should not be used as a wedge to open the door for outright social engineering. There is a big difference between, on the one hand, using taxation to fund a minimal welfare state and on the other hand using a taxation-and-transfer scheme to flatten society and make the "income distribution" more aesthetically pleasing. I'll allow that the former is a rational function of government, but the latter is not.

I put this all down now, because I see your colleagues at all levels of government acting well beyond their mandate on a daily basis. They sometimes need an explicit reminder of what their actual job is, because they've apparently all forgotten. Here is that reminder.