The Legitimate State and the Illegitimate Surveillance State: A Response to Will Wilkinson

Will Wilkinson has recently entered into the debate spurred by the Sean Wilentz defense of the surveillance state (and attack on Greenwald, Assange and Snowden). Wilkinson correctly points out that the liberal attack of the security state is inherently illiberal and, he says, he blames libertarianism or, more accurately, liberals inability to answer a fundamental challenge that libertarianism poses. That fundamental challenge, according to Wilkinson, is the libertarian argument against the possibility of a legitimate government. He puts the central challenge as follows:

The existence of unacceptably illiberal practices of actual "liberal" states raises a perfectly good question about whether it is realistic to expect states to refrain from these practices, or whether there's something in the basic logic of the state that tends inevitably toward the abuse of power.

I wholeheartedly agree with Wilkinsons' premise that the security state (as well as the attack on Greenwald, Assange and Snowden) is blatantly illiberal and that the security state constitutes egregious abuse of power. However, I will take up the challenge of answering whether a legitimate state is possible.

What is a Legitimate State?

Basic political theory tells us that a legitimate state is one that governs for the benefit of the people, while an illegitimate government (a tyranny) is one that governs for the advantage of a powerful few. The symptoms of a tyranny are abandonment of the rule of law and use of extreme and cruel tactics against citizens as well as others. 

Wilkinson's challenge that there is something in the basic logic of the state that tends inevitably towards abuse of power is a familiar challenge that is rooted in the maxim that: "Power corrupts and absolute power corrupts absolutely." Perhaps its most well-known modern expression is the Iron Law of Oligarchy, which holds that: "Bureaucracy happens. If bureaucracy happens, power rises. Power corrupts." Understanding how a state could be legitimate depends in the first instance on confronting the claim that power corrupts.

Power as Corrupting vs. the Constitutional Theory of Power

Tacit in the concept of the corrupting nature of power is a theory of human nature. Specifically, people are basically good, but when they gain power, they become corrupt. People are not inherently corrupt (which explains why many people aren't corrupt); it is power that is corrupting (which explains why governments and the powerful so often are). I assume this is what Wilkinson means when he says that "there's something in the basic logic of the state that tends inevitably toward the abuse of power."

However, the Framers of our Constitution recognized something much more subtle: It is not power that corrupts, but rather, if the architecture of government (its constitution and laws) allows abuse of power, that system will, over time, select for those individuals who will abuse that power at the expense of the common good. So, the basic theory of human nature is that some people are good and some are not: we are varied. If the constitution and laws allow for corruption, that system will select for those people willing to corrupt that system. Those not willing to corrupt the system will not participate and will self-select out of the competition. In Darwinian terms, you have created an environment (constitution and laws) that, over time, selects for corrupt behavior. In order to illustrate this much more subtle theory of power, we can look to the example of the right of private property under the United States Constitution.

The Constitutional Theory of Power: The Case of the Right to Private Property

The Takings Clause of Fifth Amendment to the United States Constitution provides that private property cannot be taken for public use without just compensation. The history of the Takings Clause is instructive.

In 1066, William the Conqueror seized all of the lands in England creating the power of Eminent Domain. Those living on the land were permitted to stay on the land in exchange for rent to the King. This system worked fine under William the Conqueror, who did not exploit this power (showing that it is not power itself that corrupts). However, William the Conqueror’s successor - William Rufus - was not so principled and began leveraging this power to extort excessive rents and fill his own coffers. Over hundreds of years and many bloody rebellions, the people were able to establish a balance between the right of private property and the power of eminent domain. The people have the right of private property and the government may only take private property for public use and must provide just compensation. Thus, the legitimate use of the power of eminent domain is retained, but the destructive features are checked. The government can take property to build roads, but not to fill its coffers (the public use requirement). And when that property is taken for public use, the citizen must receive compensation (the just compensation requirement). Our Constitution reads like a laundry list of these types of power-balancing solutions, where the power is harnessed to its legitimate use and its abusive tendencies are eliminated. To take another example, the government is allowed the power of search and seizure (necessary to serve its legitimate police function), but it must establish probable cause and obtain a search warrant to curtail abuses against citizens.

Our Framers just did not have the type of simplistic view of power suggested by Wilentz on the one hand and Wilkinson (and libertarians) on the other. Wilentz' defense of the oppressive surveillance state (and attack of Greenwald, Snowden and Assange) subscribes to the false dichotomy that in order to have a government capable of serving the public good, we must accept an abusive surveillance state: To do otherwise would prove the point that all government is illegitimate and we'd be libertarians. Wilkinson, however, is a bit too self-congratulatory when he implies that the simplistic view that legitimate government is impossible is somehow less problematic. It is precisely this view that leads libertarians to claim that federal disaster relief is illegitimate or that those unable to afford health care should be left to die. And when they allow for such clearly legitimate government functions, what becomes of their thesis that legitimate government is impossible? At this stage, it appears each side's view is equally problematic, as each subscribes to opposite ends of an over-simplified and unworkable dichotomy, but the problems with the libertarian theory of power do not end there.

The Libertarian Theory of Power

In addition to the simplistic (and unworkable) notion that legitimate government is impossible, the libertarian theory of power suffers from a second weakness: Libertarians recognize only one power - the power of the state. Or, more specifically, the authority of the law backed by the police power. However, it is clear that there are three powers that were considered tyrannical by our Framers and a fourth that can act in service of tyranny or in service of the people.

The three tyrannical powers considered by our Founding Fathers are: the police power; the power of wealth and the power of the majority. The fourth power is the power of information, which can result in all manner of abuse, including: secrecy, compelled testimony and illegal search and seizure. Such abuses are thwarted by both prohibitions on the abusive behavior (no compelled testimony and no illegal search and seizure) as well as enhancing the rights of citizens (free press, the right of privacy, the right of assembly and free speech). Pursuant to this more sophisticated, constitutional view of power, it is perfectly consistent to claim the legitimacy of government and that the surveillance state is abusive.

• Tyranny of the Majority

The most controversial aspect of our constitutional theory of power was set forth in Madison's discussion in Federalist No. 10 of a concept that is most commonly referred to as "tyranny of the majority" (though this term was not used by Madison). This is often considered to be a mere expression of elitism that, for some, supports the conclusion that our Constitution was motivated by the personal financial interests of our Founding Fathers. However, the notion that the concept of "tyranny of the majority" was an expression of elitism assumes that Madison was wrong and it is clear he was not. A majoritarian strategy of dispossessing a minority of "life, liberty or property" is a real threat, especially in the face of persistent economic crisis. Following World War I, the Allies imposed brutal austerity on the Germans. In Economic Consequences of the Peace, Keynes condemned the harsh terms and predicted a second world war. Keynes was correct: Hitler's strategy to end Germany's economic suffering was to dispossess the Jews of their "life, liberty and property" and redistribute the property to the "Aryan" Germans (a strategy that was economically successful). Any time a population faces persistent austerity, there is a danger of mass movements promoting this type of majoritarian apartheid (whether it's racist, anti-immigrant, religious, etc.). Thus, the danger of the "tyranny of the majority" is quite real and protection of minority rights is critical.

• Oligarchy - the Power of Wealth

However, protecting minorities from majoritarian tyranny is not an invitation to oligarchy, which is the third form of tyrannical power recognized by our Founding Fathers. Jefferson specifically recognized overgrown wealth of an individual as a danger to the public good. However, common misconceptions of the nature of oligarchy as well as a novel form of oligarchy that exists today have obscured this form of tyranny not only from libertarian view (libertarians are completely blind to oligarchy), but from modern view generally.

Oligarchy and Elitism

The so-called Iron Law of Oligarchy posits:

Any large organization ... has to create a bureaucracy in order to maintain its efficiency as it becomes larger - many decisions have to be made daily that cannot be made by large numbers of disorganized people. For the organization to function effectively, centralization has to occur and power will end up in the hands of a few.

This accepts a common (but incorrect) definition of oligarchy as "rule by the few." As Jeffery A. Winters argues, this "elite theory" is a misunderstanding of oligarchy. Elites are not the problem (in fact, uncorrupted expertise is a benefit). The problem is the power of wealth and specifically, fortunes so vast that they can be leveraged to corrupt an entire political process - elections, the media, lobbying of representatives, revolving-door corruption of administrative agencies, paid scientific experts, drafting of legislation and so on. Thus, oligarchs are not elites and are not the result of ordinary (even fairly marked) inequality. Oligarchy results from vast concentration of wealth; the type of wealth that can thoroughly corrupt an entire political system.

Consider the following thought experiment. I grew up in a community protected by levees and the integrity of the levees was a constant concern. There was a group of  City employees who monitored the levees. Imagine the levee slumps and the community meets to discuss the matter. The City employees who monitor and are responsible to maintain the levees explain the situation and offer a repair recommendation that the community votes to accept. The levee is successfully repaired. The City employees' expertise gave them additional influence, but it is proper influence that inures to the benefit of the community. Uncorrupted expertise is not oligarchic; it is, in fact, entirely legitimate and beneficial.

Now imagine, on the other hand, that a group with extreme wealth had been permitted to make significant campaign contributions to many of the community's elected officials and owned all of the community's media and was able to hire sophisticated experts to argue that the entire levee needed to be replaced at the community's expense. Perhaps the local experts are smeared in the media and ultimately, the wealthy group is able to obtain a contract to rebuild the entire levee system (an action that is entirely unnecessary). The campaign contributions were secret. The corporate-owned media reports on allegations against the local experts and gives air time to the sophisticated experts and bribed community leaders. The oligarchs never personally appear and there are numerous front companies obscuring ownership both of the company that obtained the contract and the media ownership.

When people or groups are able to do this on the national level, the resulting government is an oligarchy. If those persons or groups are disarmed (meaning they do not have official control of the police power), it is a form of oligarchic government Winters has termed a "civil oligarchy."

Civil Oligarchy

Winters explains that civil oligarchy - our form of oligarchy - is relatively new. In the past, oligarchs existed, but they were armed (meaning they themselves possessed police power). This traditional form of armed oligarchy is what was known to and considered by our Founding Fathers (and indeed, if oligarchs had police power, they would be subject to significant constitutional limitations; under current judicial interpretation, oligarchs have the rights of citizens). Winters explains that in post-Renaissance Italian city-states, oligarchs came to be disarmed. Though it caused them great worry at the time, it did not prove a problem as civil oligarchs have consistently been able to corrupt governments to an extent that they can use the police and military power of the state for their own purposes (and, even better, they can do so at taxpayer expense). Libertarians utterly fail to appreciate the abusive potential of the power of wealth: It is a tyrannical force that is every bit as destructive of the body politic as abusive police power.

I have argued elsewhere that our pre-industrial Constitution should be modernized to confront this new form of oligarchy as well as other matters that could not have been foreseen (like treatment of internet communications), but that consideration is beyond the scope of this essay.

Constitutionally Checking Tyrannical Powers

Our Founding Fathers recognized that one cannot just limit tyrannical powers, the rights of the citizen must be strengthened so that the citizens can properly check tyrannical abuses and indeed, effectively govern (it is the people who are sovereigns of a democracy). There must be a free press so that citizens have accurate information; a citizenry without accurate information cannot make good decisions and therefore, cannot serve as a check on abuses of power or exercise their democratic responsibilities wisely. Further, the citizens must be able to assemble and must have the right of free speech so that they can come together to discuss and solve problems of common concern, even if their concern is abuse of power. Additionally, the citizens must be free from invasions of privacy and suspicion-less search and seizure so that they may not be spied on by tyrants seeking to maintain illegitimate power. These are the conditions of a democracy: All tyrannical powers must be fettered and harnessed to the public good, their abusive tendencies must be thwarted and the citizens must have the necessary tools to check tyrannical powers. It is a theory that is consistent both with the notion of legitimate government and with opposition to the abusive surveillance state.

This is the answer to what Wilkinson refers to as the "libertarian challenge." However, it is clear that it is not so much a challenge as the opposite side of a false dichotomy that simplistically assumes that government can never be, or must always be, legitimate.