“Who Decides?”

In debates over law, politics, and political theology, one of the most frequently heard questions is “who decides?” But this is really two very different questions, one that is entirely sensible and indeed inescapable, while the other is a font of confusion, error and mystification. The distinction affects many debates, particularly between postliberals and the right-liberalism that is averse to the exercise of power. (More accurately, as we will see, right-liberalism only imagines itself to be averse to the exercise of power).

The difference between the two questions is captured by a famous opinion of Justice Harlan for the United States Supreme Court in 1887, in a case called Mugler v. Kansas. The question, simplified, was whether a state ban on the manufacture of “intoxicating liquors” violated the Due Process Clause of the Fourteenth Amendment. The Court held that it did not. Harlan wrote:

[B]y whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere, else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please.

Under our system, that power is lodged with the legislative branch of the Government. It belongs to that department to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety…. [I]f, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker's own use as a beverage would tend to cripple, if it did not defeat, the efforts to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question…. Nor can it be said that Government interferes with or impair anyone's constitutional rights of liberty or of property when it determines that the manufacture and sale of intoxicating drinks for general or individual use as a beverage are or may become hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured in our Government by the observance upon the part of all of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the lawmaking power, upon reasonable grounds, declares to be prejudicial to the general welfare. (Emphases added).

Harlan here addresses two issues, which I will call the local who-decides question and the global who-decides question. The difference is not one of federalism or anything like that; rather it is conceptual. The local who-decides question asks: “given that someone must have the power to determine whether intoxicating liquors should be banned, to which institution is that power to be allocated?” (In Mugler: legislature or court?) The global who-decides questions asks: “Must anyone decide? Is it not too dangerous to let anyone do so?” Whereas the local question asks “where should power be exercised?” the global one asks “must it be exercised at all?”

Harlan answers the local question by holding that power to prohibit intoxicating spirits is to be allocated “primarily” to the legislature, subject only to a deferential form of review in which the judiciary asks only whether the legislature made a reasonable, good-faith judgment for the purpose of promoting, in the Court’s words, “the common good.” Whether that is the right answer to the local-who decides question, or not, the question itself is an entirely familiar and sensible one. General background principles of legal and political morality, such as preventing severe harms to the community, must be made concrete and applied to particular cases by the “determination” of some authority or other, as Harlan and other classical lawyers put it. Who that authority will be is an open question; different polities may of course adopt different arrangements. Nothing in the general principles of legal and political morality prescribes some particular type of regime, or particular type of lawmaking institution, or particular scheme of judicial review, or even, perhaps, any judicial review at all. There is thus no escape from local who-decides debates, in any given polity, about how the authority to make such determinations is to be parceled out between or among what sorts of institutions. The local question is thus entirely sensible — the ordinary stuff of law.

Very different is the global who-decides question. Remarkably, the cry of “who decides?” is sometimes offered to suggest — although this is usually left implicit — that no one should decide, or equivalently that everyone should decide, but only for themselves. The thought is that no one should be authorized to “use state power” to “enforce their choices” or “impose their preferences” on others. The global who-decides question is paradoxically animated by a horror of living human authority, empowered to determine purposively what rules of order society should follow for the common good — a horror of the idea that the law should have a “living voice,” as the Roman lawyers put it.

But, as Harlan’s brisk observations at the beginning of the passage suggest, it is not possible that no one should decide, or that everyone should decide, but only for themselves. “Power to determine such questions, so as to bind all, must exist somewhere, else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please.” The consequence of denying public authorities the power to “bind all,” distributed in some appropriate fashion between legislatures and other actors, would not be to somehow eliminate that power. It would just be to transfer that very same power “to bind all” into the hands of a few individuals, in virtue of other legal rules made by other governmental actors, such as courts making common-law rules of property and contract. It is the state that enforces such rules, and when the activities of the selfish few disturb the peace and security of the many, to invoke law to bar the many from defending themselves is itself an exercise of the coercive force of the state. That too, just as much as Kansas’ prohibition, is an exercise of coercive power in the service of a particular vision of the common good, just a wildly implausible one. So although local who-decides questions are sensible, important and indeed inescapable, the idea that “who decides?” will somehow exempt us globally from authority and its possible abuses is, in the end, a simple confusion. Every cohesive political society that has ever existed has been ruled by authority, pursuing some account or other of the common good.

There is undoubtedly a risk of “abuse of power” by legislatures, and Harlan’s answer to the local who-decides question, giving courts some backstop authority of review, is intended to ameliorate that risk. But the few who indulge their passions for intoxicating liquors, imperiling the peace and security of the many, are also abusing power, and indeed state power — the power given to them by the special type of bureaucrats who staff common-law courts, and that they would exercise when wielding state-protected property and contract rights.

The liberal ideal of law without living human authority, a machine that would run of itself, of social order without the “coercion” of some by others, is not merely fantastic; it is a conceptual and logical impossibility. Power and coercion may be shifted around, but not eliminated; power is conserved. The fantasy that no one or everyone can decide merely transfers power into the hands of landlords, corporate personnel departments, and social media monopolies. A generation or two after Harlan, Robert Hale and John Dewey would elaborate on this point in theoretically crucial works on coercion and liberty — works that a friend and colleague of Postliberal Order, Sohrab Ahmari, will soon bring to bear on America’s current crises in an essential new book on “Private Tyranny.” The point here is just that, as Mugler illustrates, Hale, Dewey and Ahmari are not grafting exotic ideas onto the American legal tradition. They are explicating and clarifying it, at its best.

The law always has a living voice. Whose voice will it be? Will it be the voice of someone who believes, say, that teachers’ unions should have sole control of the public school curriculum, that Covid treatments should be rationed in part on racial criteria, or that Catholic hospitals refusing to use scarce resources for transgender surgery should be put out of business? Or will it be the voice of someone who believes the opposite? In all of these cases, it is unclear what it would even mean to adopt a “neutral” position. There is a limited resource to be allocated, and if given to some it must be denied to others.

There is a corollary here for American right-liberals, the major purveyors of the confusion and error inherent in the global who-decides question. Just as someone or other must, necessarily, decide whether intoxicating liquors do or do not threaten “the peace and security of the many,” so too someone or other must decide whether intoxicating ideologies or harmful social contagions or pseudo-religious liturgies will or will not be allowed. As in the market for goods, so too in the market for ideas: there is no choice between “regulating” and “not regulating.” Rather both markets are always already regulated; it is always a matter of whose conception of the common good is enforced.