Link to the Wikipedia article for “Restoring the Lost Constitution: The Presumption of Liberty”

In “How and Why to Expand the Nonprofit Sector as a Partial Alternative to Government: A Reader’s Guide” I organize links about my proposal to expand the nonprofit sector instead of government. When I tweet and blog about this proposal, a common reaction from some readers–as you can see in my Twitter discussions with Daniel Altman (1, 2)–is that this gets in the way of the community’s right to determine collectively what it priorities should be. John Stuart Mill, in the 3d paragraph of the “Introductory” to On Liberty, expresses this idea memorably, in order to take it down in later paragraphs.  

A time, however, came, in the progress of human affairs, when men ceased to think it a necessity of nature that their governors should be an independent power, opposed in interest to themselves. It appeared to them much better that the various magistrates of the State should be their tenants or delegates, revocable at their pleasure. In that way alone, it seemed, could they have complete security that the powers of government would never be abused to their disadvantage. By degrees this new demand for elective and temporary rulers became the prominent object of the exertions of the popular party, wherever any such party existed; and superseded, to a considerable extent, the previous efforts to limit the power of rulers. As the struggle proceeded for making the ruling power emanate from the periodical choice of the ruled, some persons began to think that too much importance had been attached to the limitation of the power itself. That (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people; that their interest and will should be the interest and will of the nation. The nation did not need to be protected against its own will. There was no fear of its tyrannizing over itself. Let the rulers be effectually responsible to it, promptly removable by it, and it could afford to trust them with power of which it could itself dictate the use to be made. Their power was but the nation’s own power, concentrated, and in a form convenient for exercise. This mode of thought, or rather perhaps of feeling, was common among the last generation of European liberalism, in the Continental section of which it still apparently predominates. Those who admit any limit to what a government may do, except in the case of such governments as they think ought not to exist, stand out as brilliant exceptions among the political thinkers of the Continent. A similar tone of sentiment might by this time have been prevalent in our own country, if the circumstances which for a time encouraged it, had continued unaltered.

The trouble with such a concept of “the will of the people” is that each individual is different. Let me give a simple example from Randy Barnett’s discussion in Restoring the Lost Constitution: The Presumption of Liberty of the idea of the “consent of the people” in the ratification of the US Constitution. An important minority who had no opportunity to consent to the US Constitution were the enslaved people of African descent who might well have had objections to certain provisions of the US Constitution. If they had been allowed to vote on the US Constitution’s ratification, but had been outvoted by the majority, would that really have made the US Constitution’s provisions accommodating the continuation of slavery OK? If, like me, you answer no, then the opportunity to vote alone is not enough to make it OK for the government to do whatever the “will of the people” that comes from majority voting suggests. 

What kinds of constraints on democracy should be made in the interests of justice? There are two primary competing notions. The first is the idea of freedom. The second is the idea of equality. The place where these two principles pull in the same direction is whenever the rich and powerful use the government to restrict the freedom of the poor and weak. The excuse is often to disenfranchise the poor and the weak by saying that they are outside the community and don’t deserve to have their interests represented in policy. But sometimes the interests of the poor and the weak are trampled despite their having the opportunity to vote on those issues. I discuss several issues in this category in “Keep the Riffraff Out!”

One area where otherwise decent people often have no qualms about oppressing the poor and the weak is in prevent the building of housing in their neighborhood that is affordable by the poor (whether it is affordable by being subsidized or affordable simply because it is built in a high-density way). Restrictions on the construction of affordable housing in one’s neighborhood may in some sense be “the will of the people” who happen to live there already but is it just?

(As an aside, let me say that simply being poor does not mean that one should be able to get away with bad behavior. To the extent that some people are poor precisely because they have behavioral problems–a common fear of those who object to affordable housing in their neighborhood–it is appropriate to plan for and commit to additional law enforcement and social services resources to dealing with those behavioral problems when affordable housing is built.) 

See links to other John Stuart Mill posts collected here.