The Proper Function of Government: Two Newspaper Columns

Irfan Khawaja

(Author's Note: The following two newspaper columns were written during my stint as a regular columnist for the Notre Dame Observer at the University of Notre Dame during the spring semester of 1997. The column, called "First Principles," examined current affairs from a philosophical perspective. Both columns defend a Lockean conception of the proper function of government, and apply that conception to a (then) current controversy. The columns were in effect concrete applications of the thesis I defend in my review essay of Stephen Nathanson's Economic Justice (Englewood Cliffs: Prentice Hall Publishers, 1997), which will be made available here soon. The columns have been lightly edited for clarity.)

Falling Prisoner to American Pragmatism (2/11/97)

When it comes to politics, Americans like to think of themselves as "pragmatic" people who refuse to mix ideological considerations with political matters. They don't care about theories or abstract principles; they care about what "works." Politics, our pundits tell us, is "the art of compromise"; therefore, appeals to principle are utopian, impractical, and naïve.

Well, there's nothing as naïve as cynicism, and nothing less practical than pragmatism. As a confirmation of this truth, consider the tragic tale of John E. Cox of South Bend (Indiana). In mid-October, Cox was arrested on the charge of failing to appear in court pursuant to a subpoena he'd been served. In fact, at the time of the arrest, Cox already had appeared in court, and was a free and innocent man. Due to a number of screwups, however, Cox was arrested anyway and detained in the St. Joseph County jail, where he spent 45 days, including Christmas and New Year's. As he described it to the South Bend Tribune, the conditions in the jail were overcrowded and "filthy." He was finally released on Jan. 29, when the county realized its mistake.

Why did this happen? At one level, it was just a series of mistakes: clerical errors, missed phone calls, bucks passed, procedures overlooked. The clerks blame the cops; the cops blame the clerks. But the underlying difficulty, according to Judge Sanford Brook of the Superior Court, is systemic: "The county has no money to give the courts." Given this, there aren't a sufficient number of clerks to oversee the relevant legal processes.

You'd have to have lived in a cave for the last few years to believe that the issue of lack of funds for government agencies is a "non-ideological" one—purely a matter of pulling a few logistical strings, or dabbling with the tax code. The 1994 elections saw the rise of what has come to be called the "Freshman Revolution," which was a revolt against "big government." The ideology behind this "revolution" is what I call fiscal libertarianism, which holds that the legitimacy of the government stands in inverse relation to its size. The bigger the government, the badder it is; the smaller the government, the better. It apparently does not matter to fiscal libertarians what the function of the government is, or what the government ought to do. The point seems to be that whatever government does should be done on the cheap—and anyone who disagrees with this, we're told, is a proponent of "Big Government."

OK, then, where is the left on the subject of John Cox? Good question.

As John Cox sat in prison, the liberals of St. Joseph county were sitting around debating whether or not Harris Township ought to be the site of an extension of the St. Joseph County Public Library. Now, the main branch of the St. Joseph County Library is in South Bend, but of course one county library isn't good enough. After all, any truly pragmatic person knows that "libraries provide an essential resource" that must be provided and paid for by the county, no matter what. And everyone knows that it is unreasonable to expect the people of suburban Harris Township to drive all the way to South Bend to use the library, or God forbid, just to buy their own books. So, we're told, we need a Harris Township library NOW, and anyone who's against the library is an illiterate hick.

The question being evaded by both the right and the left here is a fundamental issue of political theory: What is the proper function of a government? The classical liberal view—which goes back to the seventeenth century philosopher John Locke—asserts that the government's function consists in protecting the rights of its citizens. Among the most fundamental of these rights is the citizen's right to be free from the unjust application of force. The radical version of this view, to which I subscribe, holds that government's proper function consists in regulating the proper use of coercion, no more and no less.

This latter view aside, however, I think it is clear that protection against unjust coercion is a more fundamental criterion of political legitimacy than either the size of government, or whether it is building enough libraries. A county government whose judicial system is literally falling apart is much worse off than a government that happens to be "big" or one that lacks a library in Harris Township. But you won't catch any of our "non-ideological" liberals or conservatives saying that, because only an "ideologue" would quote a philosopher like John Locke in an argument about public finance.

Given the Lockean diagnosis, the genuinely pragmatic (and principled) solution becomes clearer: obviously, the judicial system needs more money. The county should raise taxes, cut inessential government programs, hire more county employees, and fix the system. This solution will of course annoy people on both the right and the left.

The right is dogmatically against higher taxes and more government employees for any reason, good or bad. So fiscal libertarians will cook up pseudo-economic excuses for not wanting to spend "too much" on reforming the judicial system. But we ought to ask them why they so obsessed with the size of the government. If a government is limited to its proper functions, shouldn't we require it to do the best job it can, and pay its employees accordingly? After all, it is the right that keeps telling us that "there is no such thing as a free lunch." Is there such a thing as a free judicial system?

The left thinks that all government programs are equally essential, no matter who benefits from them, and what the context. So the left will tell us that "we don't need to choose" between the judicial system and the library, because we can have both. We ought to ask them about their sense of priorities. Are library extensions really more important than--or as important as-- functioning judicial system? If not, why has no one in St. Joseph County been talking about our failing judicial system, while everyone has been screaming their heads off about the library for months? Perhaps the problem is that liberals have become so sanguine about government power that they've forgotten that "liberals" are supposed to be advocates of liberty and limited government. When was the last time you heard a liberal using those phrases, much less defending those ideals?

Well, all's well that ends well. John Cox is filing suit against St. Joseph County for what he suffered at their hands. Who can blame him? On the other hand, with a judicial system like ours—on the verge of bankruptcy—you have to wonder: who's going to pay the bill?

On second thought, maybe that isn't such a tough question.

Casting the First Stone: The Israeli Settlements Policy (4/15/97)

Imagine that someone took a sizeable amount of money from your bank account without your consent and built an apartment complex in your backyard without your consent. Then suppose that he went back to your bank account to get some more money to house tenants from a foreign country in those apartments and used your money to pay them cradle-to-grave welfare benefits. Imagine that when you protested this injustice, you were either shot or imprisoned or tortured—and your friends, neighbors, and relatives were arrested whether or not they were involved in any way.

This sounds pretty outrageous, doesn't it? Almost like fiction? Unfortunately, in this case, truth is stranger than fiction: the above is an accurate description of the Israeli government's settlements policy in East Jerusalem, which uses unconsenting tax revenues from Palestinians to finance the settlement of Jews—among them American Jews—in East Jerusalem.

It would be all too easy to condemn the settlements policy by pinning the blame on the right-wing government of Benjamin Netanyahu, and clucking one's tongue in disapproval of his Likud Party. Among those few American observers who disapprove of the Israeli policy, the standard line is that the whole settlements policy is Netanyahu's fault. If only Netanyahu would go away, we're told, and we could replace him with some nice Laborite dove, we could get peace in the Middle East, and we could realize the dream of a united Jerusalem, home to "the world's three great faiths." And everyone would live happily ever after.

As the architect Mies van der Rohe put it, simplicity is not so simple. The trouble with this standard interpretation is that it is both too harsh on Netanyahu and not nearly harsh enough on the fundamental principles that justify the settlements policy. The two principles are: (1) The belief that Judeo-Christian faith can and should provide the underpinning of a constitutional republic; (2) The belief in the legitimacy of forcible redistribution by the state, and the corollary belief that strict property rights only benefit the rich. Principle (1) is a cherished belief of the American right; principle (2) is a cherished belief of the American left. That is why, so long as these beliefs are held by American intellectuals, we will never be able to see the root cause of the injustices of the Israeli government against the Palestinian population—or for that matter, the injustices of the Palestinian authorities against the people they (fraudulently) claim to represent.

Consider principle (1). It is an article of faith on the American right that the Judeo-Christian tradition is the basis of the U.S. Constitution and the Bill of Rights. As William Bennett puts the point, "Our values as a free people and the central values of the Judeo-Christian tradition are flesh of the flesh and blood of the blood." This same belief is a staple of the polemics in conservative magazines like National Review, First Things, and Commentary; it is repeated ad nauseam even by conservatives who don't believe in the truth of revealed religion. Though this isn't the place to argue the point, I think the conservative conception of the Constitution and Bill of Rights is fundamentally inaccurate. As the historians Isaac Kramnick and Laurence Moore have argued in detail, "the architects of our national government envisioned a godless Constitution and a godless politics" (in The Godless Constitution: The Case Against Religious Correctness). And they were right to do so.

It apparently has not occurred to the conservatives who hold this viewpoint that it is the explicitly theocratic basis of Zionist politics that explains the injustices done to Palestinians by the Israeli government. The justification for the settlements policy is quite literally that Jews have title to East Jerusalem because, as we're told in the Book of Exodus, God gave it to them in perpetuity. Is there any way to reconcile this manifestly atavistic claim with the First, Fifth, and Fourteenth Amendments to the U.S. Constitution? No—which is why there are no legal equivalents, in Israeli law, of those Amendments, and no protection for Palestinians against encroachment on their religious liberties, their property, or their rights to due process.

So our pro-Israeli conservatives are in the odd position of defending the following claims:

· Israel has a right to all of Jerusalem in defiance of the fundamental rights of Palestinians, because God decreed it so in the Bible.

· The very same God also bestowed on Americans a government whose laws protect the inalienable rights of all men and women to life, liberty, and the pursuit of happiness through a government that justly rules by the consent of the governed, and that protects the rights of property and due process.

We can infer from this conjunction of beliefs that neither God nor his conservative followers are particularly scrupulous adherents of the Principle of Noncontradiction. No wonder that the true God demands faith of us. After all, without faith, He makes glaringly little sense. With faith, one ceases to notice that fact.

Now consider principle (2). The American left has spent considerable ideological effort trying to convince Americans that there is no such thing as unjust redistribution. It is in left circles considered either heartless cruelty or insanity to point out that compulsory redistribution resembles a form of forced labor. (As the philosopher Robert Nozick astutely pointed out, if 17.5% of my income is redistributed, then someone holds a 17.5% ownership share in my labor.) Indeed, American politicians thrive on the ready association elicited by the juxtaposition of the words "compassion" and "redistribution." If it weren't for redistribution, most of them would be out of "business."

At the high intellectual level, the political philosopher John Rawls spends hundreds of pages of his book A Theory of Justice laboring to convince us that not only do we not have a natural right to property—a right that pre-exists the laws of those who happen to govern us—but that we do not even have a right to our natural talents. They are, as he compassionately puts it, a "common asset" to be forcibly redistributed by the state. In his book The Frozen Republic, the theorist Donald Lazere tells us that our republic's system of checks and balances does not (alas) allow the government to expropriate people's assets efficiently enough; a better system, presumably, would give the government the legal equivalent of "direct withdrawal" from our bank accounts. My favorite proponent of this view, however, is Mario Cuomo, the veritable darling of the left. On being asked to justify his use of the power of eminent domain against property owners in upstate New York (eminent domain is the power to expropriate property without due compensation), Cuomo argued that expropriation was the "price" that citizens had to pay for being allowed to live under his beneficent rule. The U.S. government's horrifying record on property rights is well documented in James Bovard's Lost Rights, Bruce Yandle's The 1990s Property Rights Rebellion, and in the work of the Washington D.C.-based legal organization, the Institute for Justice. The left, of course, being in the forefront of these expropriations, has little to say in criticism of them.

The left, then, is not exactly in a position to be condemning the Netanyahu government's action any more than is the right—which doesn't want to. It is easy enough to condemn Netanyahu the right-winger so long as you don't look too closely at what is wrong with what he's doing. When you do, you come to realize that he's not doing anything all that different from what all of his predecessors have done—and what all redistributive welfare states do all the time. They take from the able and give to the needy, regardless of the rights of the former or the merits of the latter. After all, if need is the standard of property distribution—as the left never tires of telling us—then it is frequently the case that Jewish settlers are in greater need than rich Palestinian businessmen. Why should rich Palestinians deserve the product of their labors while poor Jewish settlers from Russia and Eastern Europe go without housing? I can't think of a good answer to that question consistent with the moral strictures of the left. After all, why should any leftist care about the individualistic property rights of a bunch of materialistic capitalist businessmen in East Jerusalem and their patriarchal families?

I hope I haven't been misunderstood: I regard Netanyahu as the worst species of political opportunist, and his policies as a moral disgrace. But it is a little cheap to leave the matter there. If we look a little further, we might see that as bad as Netanyahu is, it may not be so easy for some of us to throw the first stone. So to speak.