Discretionary Powers and Government Harm

A government with the power to discern is a government with the power to discriminate.

The natural law philosophy admits government power of discernment: legislators, while supposedly bound by the restraints placed upon government by its foundational charters, must nevertheless make decisions about which public policy approaches are bad and which are good.

They must use their own mental powers to discern what course of action is in the best interest of their constituents. So long as constituents determine for themselves what actions are in their own best interest, and so long as legislators listen to this determination and act accordingly, the power of discernment given politicians may be kept in check. It may be exercised in a manner not incompatible with the individual’s right of self-determination: a right, finding its roots in conscience, that recognizes the right of people to seek out their own definition of the good life.

But when government actors assume the responsibility of determining where the good of their constituents lies — independent of their constituents’ determinations on the same subject — irreparable harm to the body politic is done.

This harm comes in several forms. In the first place, it breeds independence of thought into legislators: they assume the right to determine where good and ill lie in political calculations. And this often makes constituents subservient in their own lives: whenever conflict between their opinions on policy and their elected officials’ opinions on policy emerge, it is not the constituents’ determination that wins out.

In the second place, it erodes the cornerstone of liberality: equality before the law. Government is not a producer. What it distributes in the way of aid to its constituents it must first take from others. This is an injustice that is exacerbated by the unequal distribution of that aid: when it acts to aid one group of people, it is telling them they are more worthy of support than others. It is also simultaneously telling those who do not receive aid that they are less worthy of support than others. There can be no equality of people before the law when government has the ability to declare one person’s interests more worthy of assistance than another’s.

In the third place, when government begins to act with discretion it takes on a life of its own. It acts like any other individual and becomes motivated by its own preservation: which further compounds the first harm. When government is interested in protecting its own interests, it will look less and less to individuals and the petitions they make to their legislators when they feel their voices are not being heard.

To reiterate government is not a producer. Its resources are limited. It cannot offer comfort for every citizen who comes before it expressing a need. It must prioritize need, determining which is most exigent and most deserving of support. This requires not only a mental process but an emotional capacity; government must empathize as well as think.

Government is now effectively alive. And this means that it, like others, possesses a survival instinct. It will begin to look to the preservation of its own interests.

But government is not subject to the same limitations of its citizens. Its edicts carry authority. By design, this cannot be challenged by its citizens, who enter into society with the understanding that the greater collective power wielded by government is made moral by the fact that it is used to secure that which the individual cannot secure on his own. Unlike government, the individual’s ambitions are limited by his physical constitution. Reason, too, stands as an impediment against the excesses of man: fear of retaliation governs the actions of man in regards to aggression against his brethren. One does not bite the hand that may one day feed him.

But government is insulated from fear of reprisals. More specifically, the individuals whose actions and wills animate government are insulated from fear of reprisal.

A government that takes on cognizance does so because the consciousness of an official is grafted into the organs of power. Government’s power of discretion, created that government might respond to the needs of its citizens, becomes the politician’s power of discretion. The survival instinct of those who animate the organs of government become the guiding force of its actions. Personal will is married to force of law, creating a chimerical creature that is omniscient.

This omniscience holds society ransom. Its will is an end to itself. Though “good” may be the basis for action, there is no guarantee of this, or that the definition will not fluctuate over time as the supreme power’s will fluctuates and different parts of his constitution are emphasized. Man and state must inevitably merge, making an objective marker — such as the rule of law — impossible.

There must inevitably be a clash between the supreme power and the broader polity. Unlike in a state of nature or in civil society, where rights are innate to individual being, the terms of life- the rights and conditions on which they are held- in a cognizant state are determined by the whim of the central authority. Since the ruler holds a monopoly on force, his will alone determines law, justice and even morality. The rights citizens hold — and their lives themselves — exist on the terms set by the ruler.

Cognizance corrupts the purpose of government. Man cedes his autonomy with the understanding that government will use its powers to confer benefits he cannot achieve himself, namely to secure his being. But the power of discretion given to government in service of this end is turned against man, used to enthrall him and make his needs subservient to the state.

One only needs to look to recent events to see the real-life harms of cognizance in the hands of a government not subservient to its citizens. In the response to COVID-19, state governments moved swiftly and confidently in securing what they advanced as “the public good.” They closed down businesses and established arbitrary regulations that allowed some businesses to still run at diminished capacity, while completely shuttering others.

In Rhode Island, for example, political power has rested exclusively on the shoulders of Governor Gina Raimondo. With the state’s legislature and judicial complex closed, government operated exclusively through Raimondo’s will. Her judgments were codified in executive orders that have served as the exclusive official authority in the state. Because the judiciary has been closed citizens have had no recourse to petition the governor and appeal her rules. Because the legislator has been closed, there have been no opposing voices pushing back on the governor’s value-judgment, offering alternative choices or views on where the public interest may lie.

The result has not been even-handed or considerate government. Per the governor’s order, for example, gardening centers were not allowed to open. At the same time, their big box competitors were allowed to be open, an action that was obviously unfair because it drove anyone interested in gardening to specific businesses. This action was tantamount to government picking winners and losers.

In response to this obviously unfair rule, the governor allowed gardening centers to open and forced big box stores to shutter their gardening centers. This supposed solution now put onerous and unfair regulations on big box stores. Why were they not allowed to freely do business while their competitors could? Why was browsing allowed in their other departments while the same activity was verboten in open-air spaces?

There is the morality of a parent who wishes to be seen to deal fairly with all her children and offers a consolation prize to a perceived slight against one of her offspring. This behavior is characteristic of a government enervated entirely by the actions of a singular consciousness. It is the marriage of man and government. It is not judicious and lacking in any real check on its power.

In response to criticism of her actions, Raimondo’s response has simply been that actors faced with burdensome new regulations need to “get creative” in figuring out how to make her edicts work to her benefit. For example, in Phase One of her plan to open Rhode Island’s economy she allowed restaurants to open at limited capacity for open-air dining. Obvious concerns arose for many restaurants that did not have the facilities to comply with this: either because limitations to their property did not make this feasible or because the cost of adhering to the regulations was too onerous. Raimondo’s response? “Get creative.”

There was no recognition that she had imposed conditions that were unworkable and that, as the executive in charge of the state, she perhaps ought to work with businesses owners and tailor her regulations so they were more workable for the community. Judicious government recognizes it is beholden to the citizenry and that it governs best when its laws work to empower the people. This is not what Raimondo has done; she has issued her judgment and left those whom she is supposed to serve to work out for themselves how best to survive. And this she does in the name of “public welfare.”

But perhaps the most egregious example of how cognizant government works to disenfranchise the people supposedly represents can be found in Raimondo’s response to various protest movements in the state. When people met on the steps of the state house to ask the governor to reopen the economy, Raimondo attempted to belie their concerns about the economic harm shuttering the state economy had done.

“I only want to reopen the economy once. I don’t want this to be fits and starts. Let’s go slowly, and walk before we run.” the governor said.

Caution may all be very well and good as a political strategy, but her response mitigated the concerns of those in the state who had very-real fears about losing their jobs and being able to feed their families.

Not once was Raimondo willing to meet in-person with protestors and have a dialogue about their concerns.

Yet, on the same day that Raimondo extended an executive order mandating Rhode Islanders wear masks in public, the governor appeared in-person at a Black Lives Matter protest. She stood shoulder-to-shoulder in a group of protestors and joined them in prayer.

The issue here is not Raimondo’s appearance at this rally: as the head of the state, she should meet with concerned citizens representing all beliefs.

The issue is that she ignored all of her own social distancing guidelines, reinforcing the idea that government is given life through her and serves her interests, not those of the people who elected her. The issue is also that she did not make any attempt to take seriously those concerned about the prolonged shutdown of the Rhode Island economy.

In her actions, the governor has effectively engaged in a content-based discrimination of speech. She has made to concessions to a cause she believed has merit and disregarded another cause because its opinions about the public welfare happened to run counter to her own.

And this has real world consequences: tell a group of people their existential concerns are not genuine — particularly because you happen to disagree with them politically — and you invite a backlash. And that backlash usually does not take the form of a staid and rational response. To reject a person’s existential concerns, particularly on political grounds, is to invoke a powerful emotional response. And it is to catalyze a political response equally grounded in emotion.

See the current occupant of the White House. He and his followers are populist in many respects, including the foundation of their shared identity. They have not so much a distinctive ideology, but a bond rooted in a reflexive desire to stand in stubborn opposition to those in the political elite who have called them names and told them their culture is out-of-touch and not worthy of respect.

The disparate response Raimondo — and many other prominent politicians — have had to various protest movements that have risen to prominence in the early months of this year are in danger of generating another backlash from people who have had their concerns brushed aside.

Yes, government ultimately has to act, which means it ultimately has to settle on a course of action its members believe are best placed to bring about good for the most people.

But because government is answerable to the people, it cannot make independent determinations of where the good of the public lies. It must speak to the disparate groups who make up the public to determine where the opinion of each thinks such values lie. And it must tabulate the different responses it receives to try and determine where majority opinion lies.

When it fails to do this — when it relies instead on its own value-judgments and substitutes these for the input of its constituents — government makes egalitarianism impossible. It acts like Gina Raimondo has. It acts like Donald Trump has. It weaponizes the organs of government and uses them to look to its own interests and the interests of those whose causes it finds most meritorious. And it tends to cut voices it disagrees with out of the conversation. This perverts representative government and makes political efficacy unattainable.

Founder, The Subversive Scrivener. Writer. Thinker. Intransigent ideologue. Radical individualist. Talent fully developed is the highest moral good.

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