Representation Revisited

I wrote a blog not long ago on the idea of representative government. It fascinates me, I must confess. Why people decided that it was OK for one person to “represent” dozens, hundreds, even thousands of others is so illogical it beggars belief. Rousseau said that we are free only at the moment we elect our representatives; after that we are enslaved to them. And that we continue to call this a “democracy” simply shows how loosely we use words.

After the English Civil Wars very near the end of the seventeenth century the Whigs struggled with the notion of representative government even before Rousseau. They knew the best possible form of government was a pure democracy in which each citizen participates in government and partakes in the making of the laws they are then called upon to obey. That’s as close to real civil liberty as we can get on this earth: obeying the laws we make ourselves.

But while this may work in a Greek City-State in 300 BC, perhaps, it will not work in the modern world where states tend to be large and unwieldy. So the English experimented with representative government and held brief Parliamentary sessions for their short-term representatives who were supposed to go back home and get directives from their neighbors as to how to vote next time they were called upon to do so. And, of course, the representatives were not paid so they were not eager to stay in office and grow fat while spiders wove webs in their beards.

But that didn’t work very well, either, since the sessions were too short and the constant change in personnel made it hard to get anything done (though I dare say the King thought it worked quite well!).  So the length of the Parliamentary sessions got longer and the representatives eventually had to be paid and soon we had the birth of the professional politician. The English Whigs were very nervous about this, of course, since they knew that in electing a representative they were in effect transferring their wills to another. And, as they feared, Parliament gradually became a separate body making independent decisions — another sort of despotism, if you will. In fact, members of Parliament could make laws that went counter to the wishes of the people they were supposed to represent: the very opposite of political liberty. As one of the Whigs at the time said, the idea that the representative could do what they liked was “almost too monstrous to conceive.” But that’s what developed. It wasn’t what was in the plan as originally conceived, but it was a plan the Americans adopted after their own struggles with the concept. But as we can see the phrase “Representative Government” is a misnomer.

If the idea of representation were to mean anything at all the governing body would have to be proportional: it would have to represent the political body as a whole. As John Adams said early in the discussion about representation in this country, “It should be in miniature an exact portrait of the people at large. It should think, feel, reason, and act like them.” One possible way of determining fair representation would be as follows:, if 30% of the population is Republican, 35% is Democratic, 30% are Independent, and the remaining 5% are “Other” a truly representative body would represent those groups in precisely those proportions. Or one might choose representation by income levels or property ownership, perhaps. But none of these options was adopted as we know. Most of our representatives on both sides of the political aisle are (as it happens) among the wealthy 1% of the people in this country and we can be relatively sure that they represent their own self-interest — certainly not the rest of us. (It might do to recall that the founders of this country chose the term “Republic” because the Latin root res publica meant “the public thing” where all private interest is sacrificed to what is best for all. Just a thought.)

In the end it would appear that we have arrived at the point the founders wanted above all else to avoid, to wit, the condition of the English House of Commons in the middle of the eighteenth century which had become, according to James Iredell writing in 1776  “so unequally, irregularly, and inadequately representative that it had left little to the real voice of the people and had become separated from, and converted into a different interest from the collective.”

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Natural Rights

The concept of natural rights goes back at least as far as Thomas Aquinas in the medieval period. Aquinas recognized “higher laws” than the laws of man, though these laws are superseded by Divine Laws as revealed in the scriptures. The point of this recognition was to make humans aware that the laws men put “on the books” are not the only laws, or even the laws that in a specific case ought to be obeyed. Throughout history, remarkable men have appealed to “natural law” to justify the breaking of civil laws — men like Gandhi, Thoreau, and Martin Luther King, Jr.

The thinker who did the most to popularize the notion of natural law and natural rights — which are derived from natural laws — was John Locke. His remarkable book Two Treatises of Government written in 1689 had a huge impact on the English Civil wars and the eventual ascendency of the Parliament over the King who had traditionally claimed “divine right” to rule with an iron fist. The notion of natural right, as Locke developed it, revolved around a set of moral principles that are available to human reason; these principles transcend the laws of men written in civil codes.

The notion that there is a “higher law” than the law of legislators was attractive to the British citizens living in America in the seventeenth and eighteenth centuries. They embraced Locke’s Second Treatise even after the British had tossed it aside and moved on. Jefferson in fact relied heavily on Locke’s political philosophy. But even before Jefferson incorporated Locke’s notion of natural rights into the Declaration of Independence, the notion itself was being tossed around rather loosely in the colonies and used as a convenient way to ignore laws that were inconvenient. and claim the “right” to do whatever one wanted. For example, the merchants on Philadelphia in 1773 who were annoyed by English taxes on tea from India felt it perfectly acceptable to bribe custom officials and smuggle tea into their warehouses on the grounds that “every man has a natural right to exchange his property with whom he pleases and where he can take the most advantage of it.”*  I dare say today’s corporate CEOs would heartily agree.

What this means, of course, is that if a person finds a particular law inconvenient or unnecessarily constrictive, he can ignore it on the grounds that it is in conflict with “natural law.” In a word, the notion when used in this loose way simply becomes another way of doing what one wants to do regardless of the consequences. This is not the way Jefferson meant the phrase “natural rights” to be taken when he speaks about man’s “unalienable [natural] rights” in the Declaration. These are God-given rights that no human laws can supersede. They are nearly on a par with Divine Laws as those were conceived by Thomas Aquinas. They were not mere whimsy and they were certainly not arbitrary.

Because of the loose way of speaking about natural rights and natural laws the notions passed out of common usage in the nineteenth century and very little mention of them can be found until the notion was resurrected after World War II by a group of Catholic thinkers because Hitler, among others, was careful to make certain that every step he took was perfectly “legal.” Thus, the notion of natural law and natural rights once again came to the fore: there had to be moral rules and laws that superseded the laws of fallible humans, whether they be Germans under the Third Reich or the Russians under Stalin.

So when Martin Luther King wrote his letter from the Birmingham jail in the turbulent 60s of the last century he once again appealed to natural, moral laws. When he says, for example, that  “Injustice anywhere is a threat to justice everywhere” he is not speaking about human laws, as his frequent references to the Bible make clear. King was quite certain that there is a moral high ground and that some stand on it and others do not — despite what they might say. There are moral laws that trump human laws, and these laws are written on the heart and speak to human conscience.

* Found in John Miller’s Origins of the American Revolution.