“We are always tempted to reform government agencies, to fiddle with organization charts, creating new units and scrapping old ones. We hear the sirens’ song: We could do good, things could be better.”
There ought to be a law!” You’ve heard it, and you may have thought it. In the United States, we increasingly turn to the power of the state and legislation to rid the world of injustice, nuisance or inconvenience. Alas, we often have no clue whether the proposed law or rule will do what we intend. And then there’s enforcement. Once we divide legal from illegal, we have to defend that line as if it had moral meaning, even if it’s just an arbitrary line drawn through a political compromise. Putting power in the hands of the state is always a delicate matter.

Down the Down Escalator

Sometimes I wonder what the “state” is. There is this guy, George Bush, who in many ways runs the state, but my statist friends hate him. The state must be something else. It could be Louis XIV, of course, because he said as much “l’Etat, c’est moi!” But my friends don’t really think Louis XIV was the ideal form of government. What is the answer? What is the state?

I am proud to say that I have found the state: It is Cherrail Curry-Hagler, of the DC Transit Police. The story comes from the Washington Post(July 30, 2004). The facts, (remarkably) are not in dispute.

About 6:30 p.m. July 16, 2004 Stephanie Willett, EPA scientist, age 45, was riding the escalator down from 11th Street NW to the subway station, and eating a “PayDay” candy bar. Cherrail Curry-Hagler, D.C. transit policewoman, was riding up on the other escalator. Officer Curry-Hagler warned Willett to finish the candy before entering the station.

Willett nodded. But she kept chewing the PayDay as she walked through the fare gates. Curry-Hagler, who had turned around and followed Willett, warned her again as she stuffed the last bit into her mouth before throwing the wrapper into the trash can near the station manager’s kiosk, according to both Willett and the officer.

Curry-Hagler ordered Willett to stop and show ID. Willett refused, and retorted “Why don’t you go and take care of some real crime?” Admittedly, this may be seen as rude, since her mouth was still half full of PayDay bar. The scientist rode a second escalator down to catch her Orange Line train.

At this point, according to Willett, the officer grabbed her and searched her, running her hands under Willett’s bra and around her waist. She put Willett into the back seat of a police car, took her to the 1st District station, and locked her in a cell. At 9:30 p.m., after she paid a $10 fee, Willett was released to her husband.

Got it? Okay, now consider:

  1. 1. Ms. Willett was on a DOWN ESCALATOR. She couldn’t turn around.
  2. 2. She was already chewing the candy bar. She couldn’t spit it out, without littering. I’m a libertarian extremist, but even I think you should be given a ticket if you spit chewed-up food on a public escalator.
  3. 3. When Willett got to the bottom of the escalator, she put the last bit into her mouth, threw the wrapper into the trash can, and continued on toward her train.

There is no way that Ms. Willett could have obeyed the instruction not to eat in the station, unless she had run back up the escalator, or spit out the candy bar. The difficult part, for the “let’s have the state be our nanny” tribe, is this: Given the laws on the books, Ms. Willett had committed a crime. You can’t take food into a station, and you can’t eat in the station. It’s the law. The officer had not, in fact, abused the system; Ms. Curry-Hagler, and all the other Transit Police in DC, are supposed to keep their gimlet eyes peeled for offenses exactly like these.

You think that’s wrong? Fine. But don’t blame Cherrail Curry-Hagler, D.C. Transit cop. She was simply doing her job. So is the TSA employee who makes my kid take off his shoes at the airport and who makes me show my boarding pass four times. So is the cop who gives me a speeding ticket for going 38 in a 35 mph zone.

Is there an alternative to these zealous examples of pettiness? Sure. We could give discretion to bureaucrats and the police. And that is a ticket on the train to tyranny, folks. Discretion allows the representative of the state to indulge racism, or sadism, or blankism. That won’t fly (and it shouldn’t!) in a democracy. So we are stuck with legislation that must be foolishly blunt and mindlessly enforced. It is the nature of law, not a perversion of it.

The Thing Itself

The extended quote from Burke’s Vindication of Natural Society, p. 22, reads:

Parties in Religion and Politics make sufficient Discoveries concerning each other, to give a sober Man a proper Caution against them all. The Monarchic, Aristocratical, and Popular Partizans have been jointly laying their Axes to the Root of all Government, and have in their Turns proved each other absurd and inconvenient. In vain you tell me that Artificial Government is good, but that I fall out only with the Abuse. The Thing! the Thing itself is the Abuse! Observe, my Lord, I pray you, that grand Error upon which all artificial legislative Power is founded. It was observed, that Men had ungovernable Passions, which made it necessary to guard against the Violence they might offer to each other. They appointed Governors over them for this Reason; but a worse and more perplexing Difficulty arises, how to be defended against the Governors? Quis custodiet ipsos custodes? In vain they change from a single Person to a few. These few have the Passions of the one, and they unite to strengthen themselves, and to secure the Gratification of their lawless Passions at the Expence of the general Good. In vain do we fly to the Many. The Case is worse; their Passions are less under the Government of Reason, they are augmented by the Contagion, and defended against all Attacks by their Multitude.

Edmund Burke had it right when he said, “In vain you tell me that Artificial Government is good, but that I fall out only with the Abuse. The Thing! the Thing itself is the Abuse!” (Liberty Fund Edition of Vindication of Natural Society). Ludwig von Mises said it less elegantly, but with a profound analytical understanding:

Bureaucratic management is management bound to comply with detailed rules and regulations fixed by the authority of a superior body. The task of the bureaucrat is to perform what these rules and regulations order him to do. His discretion to act according to his own best conviction is seriously restricted by them….

It is not the merit of a collector of internal revenue that the residents of his district are richer and pay higher taxes than those of another district. The time and effort required for the administrative handling of an income tax return are not in proportion to the amount of the taxable income it concerns.… This makes it indispensable to operate public offices according to principles entirely different from those applied under the profit motive.… Remember: we do not say that a successful handling of public affairs has no value, but that it has no price on the market…. Bureaucratic management is management of affairs which cannot be checked by economic calculation. (Bureaucracy [New Haven, Conn.: Yale University Press, 1944], pp. 48-50.)

We are always tempted to reform government agencies, to fiddle with organization charts, creating new units and scrapping old ones. We hear the sirens’ song: We could do good, things could be better. We simply need good government, good people, and sensible rules. Sure, we have problems now, but things could be good. The rules should be strong, yet flexible. Gravity should be reduced, and friction outlawed completely. (I never liked it, and I think a majority of people agree with me.)

Okay, the last two may seem silly, but they are no less likely than flexible rules or governments motivated by your peculiar and equally flexible conception of the good. If, as von Mises claimed, bureaucracy is the sine qua non of the territorially extensive state, then decrying bureaucracy’s rigidity is wrong-headed. We can’t make government more efficient, or more like business, because it insulates officials from such pressures by design.

The thing itself, the fundamental reliance ON the state, is at the core of the difficulties we have WITH the state. Attempts to reform through reorganization will generally prove disastrous. Bureaucracy can not be improved, because its very nature is incompatible with a society of free citizens who take responsibility for their own lives and their own choices. The incentives and hierarchies in the two forms are fundamentally different.

To put it most starkly, citizens may say, and believe, that the problem is unresponsive bureaucracy, or corruption, but these are the essential features of the governments of large nations. The solution is a citizenry that understands the economic and political forces that make government inherently incapable of carrying out the tasks we want to assign to it. But the mainstream media, nearly entirely innocent of knowledge of basic economic principles, has no hope of aiding such an understanding, and more often than not contribute to the “we can do better” mindset by carrying sensational stories of corruption inevitably followed by demands for reform.

See also “Mises and Bastiat on How Democracy Goes Wrong,” by Bryan Caplan, especially Part II.

What about the educational system? As William Niskanen pointed out, von Mises concluded his discussion “with the hope, almost pathetic in retrospect, that a broader education in economics will reduce the popular support for large government and the consequent pervasive bureaucracy” (Bureaucracy and Representative Government [Chicago: Aldine-Atherton, 1971], pp. 7-8). Not much hope lies in that direction, either.

The truth is that education in economics—as opposed to trade studies in business or marketing, or the applied mathematics taught as “economics” in universities—is nearly nonexistent. So, citizens have a correct but inchoate intuition that something is wrong. Since they have no way of perceiving the real problem of unrealistic expectations, we reform endlessly. We spend huge resources appointing task forces and study groups, and trying to get the right people in government to write the right legislation.

The U.S. has criminalized so much behavior, from eating a candy bar in a Metro station to mild drug use to consensual sexual practices, that our prisons are full of people innocent of any real crime. The only reason that I even heard about Ms. Willett is that she was middle class and an employed professional. In poor areas all over the U.S., police harass and beat nameless citizens while trying to enforce unenforceable laws. Those cops, and those bureaucrats try to enforce the tax laws and the regulations on transactions and safety standards and a thousand other things. They may or may not be good people, but their failure to do good is a direct consequence of the contradictory, and in fact impossible, job they have been given: enforce injustice.

I expect that Ms. Curry-Hagler took her tin Transit Cop badge, and herself, a little too seriously in handcuffing Ms. Willett. But the personality, the goodness (or not) of the people enforcing the law, is beside the point. We don’t fall out only with the abuse. It’s the state, the state itself, and its logically inherent mechanisms of control and oppression, that is a hydra-headed monster of legal restrictions on liberty. The thing itself is the abuse.

Alternatives to the Thing Itself

My claim in this piece is that social problems are often made worse by legislative solutions. Such coercive solutions are inherently inflexible or tyrannical. We would be better off relying on a mix of tolerance, common sense and private morality to deal with the fact that the world isn’t quite the way we’d like it to be.

At the Munger house, for example, we snack high on the food chain. I don’t know if God gave man dominion over the beasts of the field, but She certainly gave me an ATM card and big metal cart for cruising meats at Piggly Wiggly. That beats dominion.

A lot of the beasts of the field, and the forest, and the oceans, and the air…. they land on my stove, and then my plate, sacrifices to my enjoyment. I have a lot of friends who are vegetarians, and they have my greatest respect. They are (mostly) healthier than I am. Further, they are principled: they make a choice, and they stick to it, and they don’t berate me when I get a 120 ounce Porterhouse. I likewise try to cater to vegetarian tastes, and make sure I only suggest restaurants with good vegetarian alternatives. At my house I serve vegetarian dishes to guests, without even asking.

This is how most big problems should be handled, locally and without resort to coercive force. We can try to persuade each, but sometimes, we should accept the fact that reasonable people can differ. That’s why there is no attractive solution to the abortion debate. Our insistence on trying to solve the problem with a system of law is not just logically doomed, but it is tearing communities apart. Personally, I think abortion is morally wrong, as well as imposing a psychological blot that the woman can never wash away.

I also think that that is my opinion, and I should keep it to myself. If you ask me, I’ll tell you: Abortion is evil and harmful; don’t do it. But if you don’t ask, you’ll never hear a peep. And I certainly wouldn’t use the coercive powers of the state to force you or your partner to bear a child that isn’t wanted.

Rather than try and reform the inescapably blunt and often disastrously implemented power of the state, a civilization has to realize that there are two other ways to solve the problem of actions we don’t like. The first is simple forebearance—putting up with disagreement and other points of view is the price of living in a society. The other is recognizing that the reliance on the state as the enforcer of morals and norms displaces real morals and real norms.

Instead of teaching our children to be moral, and to care about social opprobrium, parents and schools abdicate their roles as shapers of minds and rely on the state to punish misbehavior after the fact. Children naturally conclude that if there is no punishment from the state, there must have been no misbehavior. But the state cannot fulfill this function, for reasons of simple competence and resource constraint. And the state would fail to carry out the function correctly, even if it were competent, because power corrupts and breeds malevolence. The abuse and the thing are the same. The conviction that we can harness Leviathan is the most dangerous conceit of our age.


*Michael Munger is Chair of Political Science at Duke University.

For more articles by Michael Munger, see the Archive.