THE RECENT AND MISPLACED EMPHASIS ON VOTER CHOICE IN REPUBLICAN IDEOLOGY

On page 251 of “A Conflict of Visions”, Thomas Sowell suggests that judges need to be elected. The Foundation for Economic Education claims that the Peasants’ Revolt of 1381 “was motivated by the spirit of Magna Carta”. Hillsdale College misrepresents Federalist 84 to claim that the purpose of The Constitution is to give power to a collective of common men known as “the people” through voting and democracy. They therefore say that Independent Knowledge Institutions like billionaires and the Food and Drug Administration are an un-American “oligarchy”. Governor Ron DeSantis and many prominent Republicans argue that private businesses promoting what are effectively religions (culture in the workplace such as “diversity” and environmentalism) violates the “constitutional process” as an illegal “fourth branch of government”.

All these people are wrong.

What Sowell specifically said was “surrogate decision-makers in general — and non-elected judges in particular — should severely limit themselves to drawing up rules defining the boundaries of others’ discretion, not second-guess the decisions actually made within those boundaries”. It is true that judges need checks, to not exceed their authority. They need a check, but that check is not popularity. The idea that those checks are elections, defeats the very purpose of judges, which is to move decision making away from tribal collectives. Edmund Burke described public officers regulated by popularity like this:

“when the leaders choose to make themselves bidders at an auction of popularity, their talents, in the construction of the state, will be of no service. They will become flatterers instead of legislators; the instruments, not the guides of the people. If any of them should happen to propose a scheme of liberty, soberly limited, and defined with proper qualifications, he will be immediately outbid by his competitors, who will produce something more splendidly popular.”

Sowell mistakenly believes that the common man in the United States is an unconscious vessel for cultural beliefs and traditions which he blindly follows, so that the rule of law and many other important things will magically manifest in the choices and prejudices of the 51% majority, from their inherited wisdom (Burke’s “bank and capital of nations and of ages”). This could not be more wrong. Madison in Federalist 51 said if the 51% majority has their way – which is what will happen if elections are the check on judges – then there will be no law but only animal impulses, and men will torture each other like wild animals.

Judges need to be checked by some clergy that believes in evolved legal processes over primitive social processes. But this type of check is the opposite of a popular vote of the man on the street. Whether this check is instead a senate (basically latin for “old men”), or includes some overlapping public and private institutions like the Federalist Society and the Federal Bar, these checks are examples of the more abstract idea of “Independent Knowledge Institutions” which are specifically designed to operate independent of the broad currents of the public mob. But nor are such institutions aloof, their fate rises and falls with the fate of their flock.

Sowell says the goal of giving decision-making power to appropriate parties – whether judges or “the people” – is “to make the locus of discretion coincide with the locus of knowledge”. I describe this in “Murray v Governor” (US-FL-MD 6:23-cv-1351) as a general evolution of social organization away from consciously synchronized collectives of hunter gatherers (Aristotle’s “polis” that extended only as far as the “herald’s cry”) to specialization and division of labor in a spontaneous web which the Physiocrats described as a “natural order” different from and superior to a consciously designed pattern of human organization.

“The purpose of law and morals is to replace human instinct with a set of habits that enable trade and division of labor; to replace the instinct for war to cull neighbors as competitors for land resources, and the instinct to seize collective conscious control of everything, with rules of private property that allow greater decision making by “the invisible hand”, distributed parallel information processing which mobilizes and utilizes unique local information in a more powerful way.

The purpose of law is to enable men to operate against their nature, in a web of decision institutions operating like a neural network beyond the conscious intention of any participant, and in which impersonal network men may feel imprisoned as slaves. It puts the temptation of collective decisions for the common good within reach, visible like an apple, but forbidden. The purpose of law is also to replace tribal collective decision making with evolved decision topologies in the form of legal institutions, to replace social quorum or mob rule with executive, legislative and judicial, bailiff, magistrate and jury, the checks and balances of Federalist 51 without which men return to their natural state. The essence of this process is utilizing information known only to individuals, rather than to the vantage point of the crowd, whether from local farmers, or actual court witnesses.”

Both Sowell and Hayek have a strong faith that the wisdom distilled over the ages by natural selection, will be present in the morals of ordinary people. Hayek called this set of habits which people blindly imitate “between instinct and reason”. I described this in one essay as non-genetic inheritance of traits:

“Something happened between lungfish and man, such that the human genome only needed to be 1/14th the size of the lungfish, to achieve everything from nuclear bombs to social media websites.What happened is external heredity. This is the mechanism by which we do not genetically inherit our survival traits, but learn them from our parents, or from stored records such as maps. By this mechanism every individual can be aware of dangers, and benefit from experiences, which he has never experienced himself. And so our survival traits are not stored in our genes, but originally in our memories, and later in written records. And we have evolved not specific traits, but the ability to pass on and store any traits easily.

The majority of the structure of a cell is for replication, not its organ-specific task. And so too is the majority of the human brain designed for communication and imitation. This is obscured from us by the simple fact that we don’t think about the majority of things we simply imitate, such as the structure of language. If a person had to design all the words and structure himself, of the language he uses every day, it would be a greater undertaking than any individual has conquered in a lifetime. The power of imitation is far greater than that of reason or instinct.”

Local observations become information in the context of knowledge. If you tell someone he needs crystals hanging from his ceiling to be healthy, he is going to observe that his home lacks crystals, often ignoring that his parents warned him about crystal salesmen. And if you tell him crystals are too expensive because his neighbor is hoarding them, he is going to vote for his neighbor to be locked up. It is important for voters to share their pain and needs by voting, in addition to communicating their conditions through the price system. They need laws and executives who care if they are suffering from crime. But far more often they are going to vote for the solution they have been told they need, for some far-off problem they have been told they have like global warming, which problem it is impossible for them to directly observe on their own, and which solution they cannot judge the validity of.

Sowell describes specialization and division of labor in the mobilization of information – the adaption of the neural network to the patterns of the physical world – as “the loci of discretion should be as widely scattered as possible”. This is the opposite of the monolithic decision making unit of a popular vote, which Hayek called “the lowest common denominator which unites the largest number of people” (Road to Serfdom chapter 10 “Why the Worst Get on Top”). An appeal to the vanity of the common man, as being superior in his collective will to independent local decision makers, is old-fashioned demagoguery and communism. Individual common people and voters actually decide very little and mostly imitate. Their wisdom beyond their own pantry is greatly overrated, and we can only hope to instruct them with vague and general prejudices against demagogues and their own collectivist instincts.

Sowell’s idea that some vast evolved knowledge is randomly dispersed among peasants, is contradicted by his own examples in “Knowledge and Decisions”. Sowell offered that the advance knowledge of the attack on Pearl Harbor was processed by one specialist agency, and the knowledge of how to mine graphite for a pencil is isolated within another specialist actor. Far from the voters manifesting useful checks on judges or drug regulators from what their granddaddy taught them, the average voter knows the least of all, apart from his own immediate pain and pleasure. Sowell says “surrogate decision-makers should not second-guess the decisions” made by these precious ordinary voters. But in reality, voters are sheep for such knowledge institutions which conserve and serve the subset of ideas refined and selected by whatever process.

Almost everything people do, from starting fires to spelling words to tying their shoes, they do using knowledge provided to them by someone else. Whom they vote for is decided by a clergy of party insiders and influencers, whose talking points they recite. The freedom to decide which drugs work or what drug to use, by your own choice or by popular vote, has never existed and cannot exist. Republicans claim the teachings of churches are valuable, but none of these teachings were refined by a popular vote. Nearly all of Sowell’s dispersed knowledge and Hayek’s morals exist in Independent Knowledge Institutions, and none of it independently in the people or their sum as a voting majority.

We used to pick the college football national champion by separate polls of football coaches and sports journalists. We moved to a four-team playoff, where the four teams are selected by the specialist BCS Committee. Governor DeSantis recently promised to sue, to correct the BCS committee’s decision to leave out Florida State, and to thereby substitute the will of the Florida voter as manifest in DeSantis, for the decision of the BCS committee. Nobody with any power has ever advocated that we should pick a college football national champion by popular vote or online poll.

DeSantis said private businesses promoting religions violates “our constitutional process”. But these are actually analogous to traditional churches and are meant to operate independent of government as examples of the more abstract “Independent Knowledge Institutions”. Independent Knowledge Institutions include such diverse entities as bankers, the Catholic Church, Dr. Fauci and the National Institute of Health, and the BCS Committee. The purpose of these institutions is to provide the necessary inputs for the discretion of others, as much as a baker or butcher provides the necessary inputs for people to get out of bed.

For example, Republicans lately attack the Food and Drug Administration, seemingly believing that which medicines can be used for what should be decided on Twitter, or left to the decisions of individuals. It is obvious that a baker or carpenter does not have the time or knowledge to figure out for himself which medicines do what. And rather than different claims about drugs being filtered on Twitter or by popular gossip, there needs to be a specialist institution designed with some rules and incentives, to produce this knowledge. Independent knowledge institutions are not unconstitutional.

The Constitution does not provide a means to decide everything by popular vote, but a legal structure to regulate and limit the incentives facing these independent actors using law. The most basic fixed regulation, is our rights in the Bill of Rights. And the means of making sure independent decision makers don’t violate these rights, is not replacing their decisions with a 51% vote, but by going to court to enforce rights, contracts, and boundaries. And there are various rules for fraud, and describing weights and measures, and other regulatory institutions, to make complex decisions that individual consumers cannot make either individually or by vote.

A recent video by Hillsdale College, complains that the government decides what ladders are safe, and then imposes this corrupt decision on the people, rather than letting the people decide what ladders are safe by popular vote or their own judgment (or letting a populist dictator decide). The Constitution does not exist to guarantee people can vote on what ladders are safe. The Constitution provides a means to sue under the Fifth Amendment, if your freedom to buy and sell what ladder you want, has been infringed by another independent actor. And then the court decides if your rights have been infringed. And if you don’t like what this present law allows, you can amend the Constitution. Discarding independent legal and knowledge institutions as inherently flawed (rather than reforming them or creating new ones), to instead decide things by the whim of the crowd (which is flawed much worse), is communist anarchy.

Sowell and others say attacks by Palestinians on Jews or poor countries on rich ones are motivated by jealousy of superior achievements. But these are actually attacks on the evolution of independent local decision makers – Hillsdale’s “oligarchs” – because people do not like things that are not controlled by the conscious collective of their tribe. These attacks are motivated not by jealousy (or even a vestigial culling instinct from when men depended like animals on land resources), but by an instinct for conscious collective control for the public good. Sowell notes that people have always hated “middleman minorities” whether Jews or overseas Chinese, but his motives are wrong. This hatred is a hatred of independent decision makers, and is a rebellion against Hayek’s “extended order” of trade. It is even a rebellion against the teachings of Jesus which made trade with strangers rather than war possible.

Far from being “motivated by the spirit of Magna Carta” as claimed by FEE, Wat Tyler’s peasants wanted to eliminate the independent decision makers represented by the land-controlling barons of the Magna Carta, and the advisors to King Richard and dispersed aristocrats. They wanted to have a single centrally directed collective where the will of the mob was represented by a dictator, whether Tyler, or Richard II finally having grown up to fill this primitive social vacuum. Tyler’s rebels wanted to get rid of courts of law, senior government officials, and independent landowners, the same as today’s Florida voters want to get rid of the BCS. Hamilton never would have entrusted his rights to a vote of peasants.

FEE also distorts “a government of laws and not of men” into some populist rubbish to create mass-market appeal to the vanity of the common man. There is always an opportunity for someone like DeSantis to point at the BCS, Disney, or some random Jew, and say wouldn’t it be better if you gave all the power to me to decide these things in your interest? All this “the people” and “states’ rights” crap is misused as a trojan horse for very un-American socialism.

The new Republican idea is that we can only have our interests represented when everything is consciously decided by our vote for the executive branch. They no longer believe the incentives and constraints of institutional systems can be structured so that Independent Knowledge Institutions serve the public good out of their own interest (Adam Smith “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own self-interest.”) The philosophy of today’s Republican Party is nothing but old-fashioned socialist agitation for a primitive social structure, masquerading as American tradition.

The point of all this, is that my friend is serving life in prison for a crime that didn’t happen, because the discretion of local prosecutors to not prosecute lies is a vehicle to move the locus of legal decision making away from the law, and to the will of the local mob. This is costumed up as federalism, constitutionalism, law and order, whatever. But it is nothing but an old-fashioned witch trial, supported by judges and politicians who are nothing but socialist agitators for the will of the mob over independent decision institutions, whether aloof businessmen, judges, juries, or “the invisible hand”. We have lost and corrupted the knowledge of our real American traditions, and instead substituted and reverted to the primitive social instincts of man.