People v. State

Schwarzenegger, in an effort to get California voters to approve a package of ballot initiatives that would have increased taxes and otherwise diverted cash flow to the government, has been warning his subjects of a “doomsday” budget that would, among other horrors, necessitate the release of non-violent prisoners. The voters by a wide margin didn’t give a rat’s ass and rejected the initiatives, and thus doomsday is apparently upon them.

Color me unsophisticated, but I just don’t see where the government, in California or anywhere else, gets off spending money it doesn’t have. But the root of the problem seems to be that neither state constitutions nor the U.S. Constitution (particularly since the 16th Amendment) recognizes any natural limit to the State’s taxing power. If the State could take, and knew that it could take, only so much from its subjects and no more, both now and in the future, the problem of runaway spending would necessarily be solved. But as things stand now, how much we’re taxed is limited only be the imagination of the legislators. If the legislature took it into its collective head to tax 75% of everybody’s income, there’d be no more stopping them than there is stopping them from taxing us at their current already-outrageous rates. And if they can take 75% of our income, why not 100%, so long as they dole back to us at least enough government welfare by which to subsist, as did the slaveholders of yore (with a little extra doled out to the privileged house slaves, who helped keep all the other slaves in line)? The people wouldn’t stand for it, you say? They’d vote the bums out of office? That’s the limiting factor? But I’m sure the founders of our country couldn’t conceive of a populace calling itself free that allowed itself to be taxed to the extent we allow ourselves to be taxed today, at rates far more onerous than those imposed by the British Empire at the time of the American Revolution. Yet here we are.

But the more fundamental question is, what gives the government the right to take 100% or 75% or 30% of our earned incomes? The answer is, nothing gives it the right.

This is a glaring omission, particularly for a country born revolting against unjust taxation. Such natural limits are discernible, and could have been hardwired into the texts of our constitutions. I happen to be convinced that the political philosophy of Henry George illuminates the natural limits of taxation. I think an argument can also be made that inheritances are justly susceptible to taxation, on the theory that it’s impossible for a dead guy to own or convey anything except by a legal fiction. While more of a stretch, an argument could also be made that gifts are justly susceptible to taxation, on the theory that society is not bound to recognize a recipient’s unconditional right to property he or she did nothing to earn and for which he traded nothing in exchange. There is room for argument on these points, but the essential point I’m trying to make is that the effort should have been made, and should be made, to discern the just and natural limits of taxation. Almost anything would be better than the unlimited taxation we’re subjected to now, arbitrarily imposed by legislators with no basis in principle and heavily influenced by the self-interest of the most successful lobbyists.

The recognition that reasonable people will disagree about the natural limits of taxation and other matters of principle brings me to what I see as the fatal flaw and the original sin of democracy — the notion that a mere simple majority is enough for that bare majority of 51% or 50.0001% to legitimately impose its will on the minority. Laws are only as legitimate as they are just. The circumstance that most of a population supports an unjust law doesn’t magically make that law just or legitimate. The value of democracy, if it has any, is in increasing the likelihood that the laws enacted by the democracy are in fact just. The idea and the hope of democracy is that the views of a broad swathe of the population about the justice of a proposed law are more likely to reflect reality than those of an oligarchy or of a lone monarch.

But why in the world did the inventors of democracy settle on 51% (or 50.001%) as enough to provide enough assurance that a law which limits liberty is just? (A law which merely decides whether we’ll drive on the right side or left side of the road is of a different kind, and is appropriately decided by a simple majority.) The number is completely arbitrary. Why not 75%, or 90%? These higher numbers comport far more with our common sense of propriety. In our daily lives, how sure do we have to be that we’re acting rightly before we will exercise physical coercion or violence on another human being? If we’re decent and civil human beings, pretty damn sure. Not merely 51% sure.

Consider that elsewhere in our legal system we’ve determined that it takes a unanimous jury of twelve (itself an arbitrary number) to convict a defendant of a crime and deprive him of his liberty. Not seven out of twelve. Why not require the same degree of assurance before we criminalize certain behaviors in the first place through legislation? At least 90% of us should be persuaded beyond a reasonable doubt that a particular kind of act is a criminal act before a law is passed declaring it a criminal act. At least 90% of us should agree that a certain form and amount of taxation is appropriate and necessary, because by enacting such a law we’re saying that an individual who willfully decides he’ll pay less is acting criminally.

Interestingly, California is one of only three states requiring a two-thirds majority vote in the legislature on taxes and budgets. Critics sees California’s budget woes as resulting from this constraint on legislative power combined with California voters’ hog-wild democracy as expressed in its peculiar ballot initiatives system, which is not so constrained, and which (again, according to critics) vacillates between a hatred of taxes and a love of spending. To the contrary, California voters have the right idea by constraining their legislature in this way, and should take five or six more steps in this direction and similarly constrain themselves.

In the meantime, if California’s government going broke means it will just have to release from prison non-violent offenders, then I can only hope that this “doomsday” spreads from sea to shining sea.

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