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Indifference and Unreasonableness
John Stuart Mill pointed out that "When the well-being of society depends on the wisdom and benevolence of government, it is at all times precarious." The seventeenth through the nineteenth centuries in Europe and America saw a flurry of philosophical and practical progress in understanding the nature of government and improving its responsiveness to the needs of citizens. That task is far from complete, however, and I would like to discuss the general issue of reforms that might make government more responsive and more decent.
I want to begin with a recent example of what seems to me to be a case of relatively gross indifference and ignorance that will highlight how such things happen under the American system of democracy. I have chosen a case that is fairly easy to be dispassionate about because likely no one will be seriously harmed by it. But what allows it to occur is representative of what happens in cases in which people are seriously harmed and treated unfairly and unjustly.
Two to three years ago, the Jefferson County (Alabama) commission enacted a law to end the exemption of licensed professionals and sole proprietors from the monthly .5% occupational tax required of all others who work in that county, or who even just work in the county sometimes -- such as State highway construction workers, whose wages were taxed by the county for days they did road work there. In other words, when this new law was passed everyone who did any work in Jefferson County was now required to pay an occupational tax.
For technical reasons about the possibility of this being a double tax on those who already have to pay the county for a license to operate a business or to practice a profession, the constitutionality of the law removing the exemption came under challenge immediately. Because it would take time to resolve that, the county placed the new tax revenues in an interest-bearing escrow account, to be returned to those who had paid it if the law was eventually judged unconstitutional. A lower court judge from a different county held the law to be constitutional, and the money continued to be collected for another year, still held in escrow , until the Alabama Supreme Court finally ruled that it was not a constitutional law and ordered the money to be returned to those who had paid it.
The lower court judge then ruled that in returning the money, the attorneys who brought the case (which was designated as a class-action case) and shepherded it through the Alabama court system should receive 40% of the money for their work, and that only 60% of the money should be returned to the taxpayers who paid it. That is now being contested in the courts, and it is not clear when or how it will be resolved, though from the precedent set so far, it seems that the more the plaintiffs win, the less they are likely to receive.
At this point the essence of the case is that the county government (with help later from the State legislature), passed an unconstitutional law which was in force for two or three years that allowed them to collect tax money. The money, however, ended up not being able to be spent by the county for any government or public projects, and instead 40% of it ended up being given to attorneys and their law firm, with only 60% being returned to the taxpayers. The amount of tax money collected was something just under $9 million, and the attorneys for the plaintiffs were awarded $3.5 million for 1800 billable hours of work, which comes out to almost $2000 per hour.
As of this writing, a month after the Alabama Supreme Court ruling, none of the money has been returned to the taxpayers or is scheduled to be. Just after the high court ruling, the county tax office said they could not return the money until the courts told them how to do it, and two weeks later they said they could not return any of it while the litigation was pursued as to how much should be returned and to whom.
This seems to me to a be a case of government (financial) abuse and economic waste. Essentially at least $3.5 million of tax money was collected and given to lawyers who showed it shouldn't have been collected, and was not used for any public benefit. It is not the worst thing a government could have done to some of its citizens, but it is an example of a serious problem which can be discussed more dispassionately than more serious instances of government abuse which may stem from the same sort of callous indifference to the needs, wishes, and rights of its citizens.
I have written elsewhere (Constitutional Safeguards For Majority Rule and The Problem Free Markets and Majority-Rule Democracy Have In Common) about the problems for numerical minorities' (which may be philosophical or political minorities, not just racial, gender, or ethnic minorities) having serious representation in a democracy. This is an instance of it, since the protection and remedies for attempted government abuse -- violation of stated legal/constitutional rights, and political electoral change of office-holders -- are not likely to bring justice or serve as a remedy in this case. Only a minority of business people are affected, and thus only an even smaller minority of the citizenry at large.
Moreover, while the tax itself was deemed unconstitutional, it may not be unconstitutional for its illegal revenues not to be returned to the taxpayers who paid it. While this seems to me to make a mockery of the concept of "escrow", the law itself may not have a sense of mockery. If, as a reader, you can appreciate that something is wrong in this case and that the legal issue does not quite square with our moral sense of justice, fairness, and governmental propriety, the issue I want to raise, using this case is how government might be made more morally responsive and decent than the American legal system already makes it and requires it to be.
First, I want to make it clear that I think the problem is a matter of callous indifference and, perhaps to some extent, ignorance on behalf of government officials, not meanness nor stupidity. The view of the county tax office is that the law was valid and just, until it was ruled unconstitutional and that therefore they had a right to collect the tax and that the subjects of the law had a legal obligation to pay it. That is not a view shared by all attorneys or accountants in regard to this particular case (some of each told their clients not to pay the tax; others told their clients to pay it, while the law was being contested), but it is not a stupid nor a mean-spirited view. This view, however, allows that it is right and legal to enforce "bad" laws until they are finally ruled to be unconstitutional. That could mean years in which citizens are subjected to such laws. And that is a problem for citizens. The potential ignorance about the matter is two-fold: (1) whatever "valid laws" might mean, a law is not constitutional until ruled otherwise; if it is unconstitutional, it was from its inception. If it is an unjust law of some sort, it is unjust from its beginning, not only from the time that the court rules it unconstitutional. It may be "legally enforceable" until the courts rule it unconstitutional, but it is not either right or constitutional until then.
(2) There is an ignorance on behalf of government officials involved about the time, trouble, and cost involved in paying a tax that is questionable and suspect to begin with. It is not that the government officials involved are arrogant (though some might be); it is that no matter how personally humble they may be, they suffer from an institutional blindness to the real needs of the people they are serving. The institution takes on an importance greater than its actual mission. This happens not only in government, but in any organization. It is characterized by a "we have to have rules" and "rules need to be obeyed" mentality, that confuses all rules with good rules and that thinks order, no matter how misguided, is better than chaos or arbitrary, biased personal judgment. The labor and financial costs of having to obey bad laws or problematic corporate policies and practices, is just not of any concern to bureaucrats or others working in any large institution, public or private.
While it is true that arbitrary, biased personal judgment can lead to injustice, unfairness, and tyranny, what can happen in any formal legal or rule-based system is that injustice, unfairness, bias, and tyranny creep in by way of impersonal, institutional and procedural principles and policies that mask their moral illegitimacy. The mistaken (I believe) concept is that if the rules are democratically (or otherwise legally) passed, and are not (yet ruled) unconstitutional (or illegal), then the rules must be moral and must be obeyed. Following the proper (legal) procedures is what is alleged and believed to give laws and rules their moral force and make their obedience morally obligatory; the content is irrelevant, as long as it does not conflict with a superseding law. On this view there are no constitutional laws in a democracy or a democratic republic that are also immoral, or at least not any that are sufficiently immoral to justify disobedience. On this view civil disobedience is always wrong, and following the law (or following duly authorized orders) is always right. On this view, there are no legal corporate procedures or practices that are also immoral or right to disobey.
What the founding fathers of the United States, those who wrote and adopted the Constitution, did was to attempt to adopt the right procedural process and the most important laws in the first place in order to eliminate the problem of immoral laws' passing or being able to do much damage. They did this in two basic ways: (1) incorporating procedures that insured "the consent of the governed" in various proportions of majorities and mixtures or combinations of majorities, and (2) incorporating certain basic principles and citizenship rights. These principles, rights, and procedures were incorporated into the constitution in such a way that if they proved problematic or faulty to sufficient people, they could be amended, but otherwise were almost impossible to supervene.
Unfortunately, though the authors of the Constitution were far from naive about the misuse of authority and abuses of power to which government officials might be prone, they did not have sufficient ability or clairvoyance to prevent or protect against all of them. Moreover, one of the most important protections, the ninth amendment to the Constitution, one of the original Bill of Rights, has been rendered impotent by judges who have considered it too vague to be useful, thereby justifying the fears of those who were opposed to the original Constitution without a specific list of included rights, as well as the fears of those who were opposed to including such a list -- that those in power would claim rights not specifically granted could be easily ignored or could be taken away by simple majority rule. The ninth amendment was put into the original Bill of Rights in order to show that there were rights other than those enumerated by the Constitution. By essentially ignoring the letter and the spirit of the ninth amendment, those unenumerated rights have virtually been lost.
Also, various mutual back-scratching practices among Congressmen were not preempted, thus allowing for pork barrel legislation and various other forms of trade-offs that were of personal importance to legislators or which were of political benefit to Congressional representatives in their local districts, but which taken as a whole did more harm than good. However, the perception within each legislators' district is that other districts' legislators are to blame for that, so there is no effective locus of responsibility which voters can turn or act to remedy.
But the biggest problem is that there are no protections for the victims of bad legislation and flaws in the judicial system as long as it is only smaller than majority groups of people who are affected and as long as no higher court cares to force a remedy. There is no protection from legislative and judicial indifference as long as that indifference does not affect, in a way they notice or care, a large or influential enough group of people to do anything about it politically. And even then, there are no protections until the electoral process can oust bad or callously indifferent legislators or judges, and that can take time while bad laws continue to affect people.
The issue is whether some new law or laws might be written which are specific enough to be judicially acceptable, but which are open-ended enough to put into place a viable system which permits the kind of moral judgment necessary to circumvent what would otherwise be legal loopholes or formal technicalities. In other words, is there a way to make the system work in such a way that laws and behavior can be made more moral without making it so subjective that everything becomes a mere matter of opinion, with different opinions turning everything into either a witch hunt or a hung "jury"?
Before answering this question, though, I wish to point out that the present system we have still allows subjective opinions to rule, but in ways that we seem to acquiesce to, or accept as necessary, even when they outrage us. What I am seeking is to have a system that recognizes there is some subjectivity in all decision-making and that tries to then make that subjectivity responsive to our collective sense of morality, rather than just to act as if technical legality is all that is important and that there is no such thing as an objective or collective sense of morality that can be transgressed by legislators, executives, or judges; nor by businessmen and private individuals.
This is an issue for any formal system, such as sports. While referees and umpires make all calls (except for rare formal protests), it is recognized by everyone except the official rules, that they can make bad or wrong calls, even calls that effect the outcome of the game. In the worst cases, a team can have an official victory even though they did not earn the victory by their actual play on the field. Instant television replay is a way of addressing that, but the various sports leagues that have tried to use instant replay as a remedy have not understood the right way to do that. (See the preface to The Ethical and Philosophical Foundations of Economics for a fuller explanation of this problem and the general problem for any formal system of issues not adequately addressed or remedied by mere formal rules within the system.)
Similarly with regard to law. What is needed is a general law or policy allowing the remedy as soon as possible for legislation that is unconstitutional or so clearly egregiously bad or morally wrong that pretty much everyone who cares can tell. And there needs to be a mechanism for its application. Normally the judicial system would be such a mechanism, but there needs to be a mechanism for overriding that system in those cases where it fails egregiously. And the whole process needs to be as open and objective as possible so that the evidence itself is full and complete for the public to see, and all objections addressed in a reasonable way.
Similarly, with regard to business policies, principles, or practices which are egregiously immoral even though legal. There needs to be a remedy that reasonable people would accept as fair.
I do not have a particular remedy to advocate for governmental or commercial
misdeeds and indifference. It might be that a law analogous to "reckless
endangerment" laws can be passed against "callous indifference to, or regard
for, reasonable human needs and desert" whereby a jury would decide. It
might be that we need some sort of law concomitant with that which provides
for a 2/3 jury majority rather than a unanimous jury. To prevent frivolous
charges from being brought, the filing of frivolous charges could itself
be an offense against that law, perhaps one that the jury renders at the
time of the verdict itself when the original verdict is one of "not guilty".
Perhaps this all needs to be done initially outside the court system altogether,
using some sort of ombudsman or arbitrator. There are any of a number of
potential remedies, but the problem needs to be addressed.