by George H. Smith
A detailed libertarian critique of electoral voting is long overdue. Political libertarians (i.e., those who support the effort to elect libertarians to political office) are usually silent on the moral implications of electoral voting. When challenged, they typically dismiss moral objections out of hand, as if the voluntaryist (i.e., anti-voting) case deserved nothing more than a cursory reply.
This situation will probably change in the near future. The issues raised in voluntaryist arguments are far too important to be discarded without careful consideration, even if one ultimately rejects voluntaryist conclusions. This is especially true for those political anarchists (if I may use that curious phrase) who support the Libertarian Party. If it is at least comprehensible why minarchists (advocates of minimal government) support a political party, the spectacle of political anarchists is far more perplexing. Hence this essay (to be continued in subsequent issues of The Voluntaryist ) is directed primarily at political anarchists, though some of the material is relevant to minarchists as well.
The purpose of this essay is to explore the moral implications of libertarians (especially anarchists) holding political office, running for political office, or assisting those who do — primarily through the vote. The ethics of voting cannot be divorced from the key question of what one is voting for. And this, as I shall argue, cannot be divorced from the institutional framework in which the voting occurs.
This essay is directed to fellow libertarians who are familiar with the standard debates in contemporary libertarianism, such as that between minarchism and anarchism. I must also assume that the reader is generally familiar with the basic approach of voluntaryism. (if not, my essay Party Dialogue should be consulted, along with the other essays in “The Voluntaryist Series.”) Moreover, standard terms in the libertarian lexicon — e.g., “invasion” and “aggression” (which I use synonymously) — are not defined in this essay. Here again standard libertarian works should be consulted, such as various books and essays by Murray Rothbard. A term that may generate some confusion is “electoral voting.” This means voting for the purpose of placing someone in a political office. It does not refer to other kinds of political voting, such as voting on particular issues in a referendum. (This requires a somewhat different analysis.) Hereafter, unless otherwise noted, the simple term “voting” shall be used to mean “electoral voting.”
Since this essay is to appear in installments, I must beg reader’s pardon if some problems remain unsolved at the conclusion of each part. The theory of voting has been so neglected that it is difficult to explore its moral implications without first laying a good deal of preliminary groundwork. Some pro-voting arguments are based on different premises and actually clash with each other when employed by the same person. Other pro-voting arguments appear decisive, but they retain this appearance at the expense not only of voluntaryism, but of principles common to all libertarian theories (especially anarchism). These “kamikaze arguments” attack voluntaryism by undercutting the foundations of libertarian political analysis, thus exploding political arguments later.) For one libertarian to use a kamikaze argument against another libertarian is somewhat indelicate, to say the least.
The theory of voting should be investigated within a broad framework of political and legal theory. This plunges us into complex and troublesome areas, like principal-agent relationships, accessories before the fact, aiders and abettors of crime, and so forth. I do not presume to have solved the problems these concepts create for libertarian theory, but libertarianism undeniably depends on some notion of accountability for persons other than those directly involved in criminal (i.e., aggressive) acts.
Libertarians generally agree that the driver of a getaway car is liable for a bank robbery, even if he did not personally wield a gun or threaten force. Similarly, we hold legislators accountable for their unjust laws, political executives accountable for their unjust directives, and judges accountable for their unjust decisions. We do not exonerate these individuals just because they legitimize their actions under the “mask of law.” Yet political and bureaucratic personnel rarely participate in law enforcement; they do not strap on guns and apprehend violators. This is left to the police.
Clearly, therefore, the libertarian (anarchist) condemnation of the State as a criminal gang rests on the view that criminal liability can extend beyond the person who uses, or threatens to use, invasive force. Most of the individuals in government, though not directly involved in aggression, nevertheless “aid and abet” this process. Libertarian theory would be irreparably crippled without this presumption. If criminal accountability is restricted only to direct aggressors, then the vast majority of individuals in the State apparatus, including those at the highest levels of decision-making, must be considered nonaggressors by libertarian standards and hence totally innocent. We could not even regard Hitler or Stalin as aggressors, so long as they did not personally enforce their monstrous orders. The only condemnable persons would be in the police, military, and in other groups assigned to the enforcement of state decrees. All others would be legally innocent (though we might regard them as morally culpable).
Few libertarians are willing to accept this bizarre conclusion, but it automatically follows if we refuse to incorporate within libertarian theory some idea of “vicarious liability” defined by Black’s Law Dictionary as “indirect legal responsibility; for example, the liability of … a principal for torts and contracts of agents”).
Libertarian theorists have virtually ignored vicarious liability in three respects: first, they have rarely acknowledged it as an implicit underpinning in the libertarian (especially anarchist) analysis of the State; second, they have neglected to provide a thorough study and justification of it; third (and most relevant to this discussion), they have not examined its implications for the theory of voting.
I shall not attempt to defend a theory of vicarious liability here, despite the crucial need for such a defense. Because I am addressing fellow libertarians — most of whom accept some version of this principle — I shall accept vicarious liability as a given within libertarian theory and proceed from this foundation. Libertarian theory in general, and anarchist theory in particular, would tread perilously close to incoherence without this presumption. Given this fact, it follows that voters, in some cases at least, are deemed accountable by libertarians for the results of their votes (e.g., legislators who vote for victimless crime laws). And this liability attaches despite the fact that the voters do not directly engage in aggression or explicit threats of aggression. It is incongruous, therefore, for a political libertarian to profess bewilderment that even a prima facie case against voting may exist, on the ground that voting is obviously a nonaggressive act. If voting per se is deemed nonaggressive, if the voter is never accountable for what occurs afterwards, then this attack on vicarious liability succeeds in smashing voluntaryism at the considerable expense of rendering incoherent the libertarian analysis of the State. Thus do kamikaze arguments “succeed”.
The libertarian who seriously believes that voting is always nonaggressive — “How,” he asks, “can pulling a lever in a voting booth constitute aggression?” — is led by his own logic to conclude that voting for any candidate is permissible by libertarian standards, regardless of what the aspiring politician promises to do while in office. A candidate might promise to imprison all redheads in slave labor camps, or to order the execution of all Catholics on sight. But on a strict nonaccountability theory of voting, the voters who placed these politicians in office are in no way liable for their criminal acts. And since — as political libertarians like to remind us — libertarian theory forbids only aggressive acts, there would be nothing inconsistent in a libertarian voting for these power-seekers, because all voting, by definition, is nonaggressive.
Moreover, the successful libertarian politician would find it impossible, qua office holder, to violate libertarian principles while in office. If voting is never aggressive, then the libertarian legislator can never be aggressive (and hence unlibertarian) regardless of what he votes for. Would a libertarian legislator who voted for a draft be regarded by members of the Libertarian Party as having acted contrary to libertarian principle? Most certainly. But if libertarianism forbids aggressive acts only, and if voting can never be an aggressive act, then in no sense can the pro-draft legislator be accused of behaving in an anti-libertarian fashion.
Political libertarians who endorse a non-accountability theory of voting will have to grapple with its many paradoxes. After its implications are understood, it is unlikely to find many defenders. Some political libertarians already concede that a voter may be accountable. For example, Jeff Hummel, a prominent anarchist and supporter of the LP, maintains that “any legislator who votes for an unjust law is … in fact one of the actual aggressors!” (Free Texas, Fall, 1981). Does this argument extend a step further back? Do voters who place these politicians in power share liability for the resulting injustice? Unfortunately, this is one crucial question among many on which political libertarians remain silent.
I have argued briefly that the voluntaryist case against political voting cannot be dismissed as prima facie absurd by political libertarians. This is because political libertarians share with voluntaryists a theory of vicarious liability on which the case against voting is built. (see p. 7 of manuscript) Deny vicarious liability … and political libertarians will be hard-pressed to retrieve their own theory from the wreckage strewn about by their kamikaze attack.
Of course, to establish the prima facie possibility of the voluntaryist case does not cinch the argument. Many more arguments and principles need to be considered. But we have at least cleared a path along which the rest of this article may travel.
2. The Burden of Proof
Before proceeding to an analysis of electoral voting and the arguments pro and con, it may prove helpful to establish some procedural guidelines. Foremost in any argument is the burden of proof. Who assumes the burden of proof in a given dispute? Which side must produce the preponderance of evidence and/or arguments in order to resolve the case? Most important, if the responsible party fails to meet the burden of proof, then what is the status of the dispute?
In the voting debate, it is usually assumed that the burden of proof rests with the voluntaryist, i.e., the opponent of voting. If the voluntaryist claims that voting is inconsistent with libertarianism or anarchism, then he must substantiate his claim. He must show that electoral voting actually falls within the category of actions known as “Invasive” or “aggressive.” Failure to accomplish this acquits the political libertarian, or the political anarchist, of all charges.
This procedure seems reasonable. To condemn voting as improper is a serious charge, after all, and it appears that the voluntaryist should assume the burden of proof if he expects to be taken seriously. We see a parallel in legal theory, where a man is presumed innocent until this presumption is “defeated,” i.e., until the defendant is proven guilty beyond a reasonable doubt. The legal presumption of innocence determines where the burden of proof rests. Failure to provide sufficient proof means that the presumption remains where it began: the defendant is innocent.
The legal analogy is accurate in one respect. It points out that the burden of proof is fixed according to the basic presumption of an argument. If, as we have seen, an accused man is presumed innocent, then the onus falls upon his accuser to defeat this presumption. A presumption functions as the starting point in a dispute.
From the legal analogy, however, it does not follow automatically that the political libertarian is analogous to the defendant, and thus it does not follow that the burden of proof lies entirely upon the voluntaryist. Indeed, in dealing with anarchism – the principled rejection of the State — I maintain that there is a presumption against political office-holding and therefore a presumption against voting for political office. Thus the political anarchist is the one who must defeat the basic presumption. When two anarchists debate the ethics of voting, it is the political anarchist who assumes the major burden of proof. It is the political anarchist who must demonstrate to the voluntaryist why voting — an overt participation in the political process — is not a violation of their common anarchist principles. Let us examine this claim in more detail.
Voluntaryists are more than libertarians; they are libertarian anarchists. They reject the institution of the state totally, and it is this element that is not contained (explicitly, at least) within libertarianism. Libertarian theory condemns invasive (rights-violating) acts and says that all human interaction should be voluntary. All libertarians, whether minarchists or anarchists, accept this. It is the defining characteristic of a libertarian.
Libertarian anarchism professes not only the nonaggression principle, but the additional view that the State is necessarily invasive and should thus stand condemned. Libertarian anarchism combines the libertarian principle of nonaggression with a particular analysis of the State — an analysis not shared by libertarian minarchists. It is the premise of nonaggression, coupled with an institutional analysis of the State, that leads to the rejection of the State by the anarchist as inconsistent with libertarian principles.
The above reference to “institutional analysis” is critical. One cannot progress from libertarianism to anarchism without an intervening argument. A principled rejection of the State does not necessarily follow from the nonaggression principle, unless one can also show that the State is necessarily aggressive. This latter point — the anarchist insight into the nature of the State — is the minor premise required to justify anarchism:
Major premise: Libertarian theory condemns all invasive acts. Minor premise: All States commit invasive acts. Conclusion: Libertarian theory condemns all States (or governments — I use the terms interchangeably).
This syllogism illustrates the difference between simple libertarianism (articulated in the major premise) and libertarian anarchism (articulated in the conclusion). The transition to anarchism is realized through the anarchist insight (articulated in the minor premise). This insight is what all libertarian anarchists share with fellow anarchists. It is also what distinguishes libertarian anarchists from their minarchist cousins.
Minarchists qualify as authentic libertarians so long as they believe it possible for their minimal State to remain nonaggressive. The minarchist, like the anarchist, accepts the nonaggression principle; but the minarchist does not accept the anarchist view of the State. This controversy over the minor premise leads to different applications of the nonaggression principle to the State. (Whether this stems from a definitional dispute or from something more substantial need not concern us here.)
The minarchist issues a challenge to all libertarian anarchists, political and voluntaryist alike: “Prove that all governments are invasive. Demonstrate that the State, by its very nature, must violate individual rights.” The anarchist responds, as indicated earlier, with an institutional analysis of the State. He avers that institutional features of the State, such as the claim of sovereign jurisdiction over a given geographical area, render the State invasive per se. This invasive trait persists regardless of who occupies positions of power in the State or what their individual purposes may be. The anarchist insight, in order words, is not arrived at inductively. The anarchist does not investigate every employee of every State, determine each individual to be an aggressor, and then generalize from the individual to the institution. On the contrary, the State is assessed first, qua institution, according to constant structural features inhering in all governments. This institutional analysis leads to the anarchist insight, after which particular individuals within the State are considered to be part of a “criminal gang” owing to their participation in the exercise of State power.
To put it another way: for anarchism, the individual does not taint the institution; rather, the institution taints the individuals who work within it. It is because the nature of the State as an institution renders it irredeemably invasive that we condemn particular offices within the State apparatus, and hence particular individuals who occupy those offices. Such individuals “aid and abet” State injustice, even though they may not personally commit aggressive acts.
It is necessary to understand that the institutional analysis sketched here is vital to all theories of anarchism, including political anarchism. This kind of institutional analysis must be valid if anarchism is to have a solid footing. It is simply impossible for anarchists to derive anarchism from the inductive method described above. It is patently impossible to examine the personal motives and goals of all individuals who comprise “the State” before we can pass judgment on the State itself. In addition, if this research were undertaken, we would find that the vast majority of State employees never intend to aggress against others, nor do they participate directly in aggressive acts. The inductive method never permits us to bridge the gap between individuals and institutions. Indeed, from a purely inductive perspective, there is no “State.” Only individuals exist and act; there are no institutions. The State, then, is a fiction, and it is nonsense to refer to the “State” as “invasive” or “aggressive.” Only individuals can invade or aggress; and although some individuals within that organization we call the “State” may personally aggress, the vast majority do not. To condemn the State per se, therefore, as the anarchist wishes to do — and by implication to condemn all individuals within the State — is flagrantly unjust. It is to besmirch the good names of innumerable State employees who never personally engage in aggression.
This methodological objection to anarchism is important, and anarchists, as I have indicated, will be unable to respond adequately unless they defend the approach I have described as institutional analysis. The coherence of anarchism as a theory hangs on this kind of analysis.
Why is this relevant to the debate over voting? Because it illustrates that the presumption, and therefore the burden of proof, varies according to whether the voluntaryist addresses a minarchist or a political anarchist. Since the minarchist need not adopt an institutional analysis, he will not view the fact that an individual is an agent of the State as even prima facie evidence of improper conduct. There is, for the minarchist, no moral “curse” on the State as such, which then filters down to individuals within the State. Working for the State, in other words, does not constitute a presumption of guilt. The individual is presumed “innocent” until proven otherwise, despite his institutional affiliations.
This is why the minarchist is a difficult convert to voluntaryism. Usually the minarchist must be brought first to anarchism, which requires that he accept an institutional analysis of the State, and only then to voluntaryism. The procedural chasm dividing voluntaryists from minarchists is so wide that this intermediate step is ordinarily required. The burden of proof falls upon the anarchist to establish the soundness of this intermediate step.
But the situation changes when the voluntaryist addresses a political anarchist. Here the anarchist insight — the recognition of the State per se as an invasive institution — is agreed upon by all parties before the argument over voting even commences. Both disputants utilized institutional analysis in order to arrive at their current positions. It is plainly inconsistent, therefore, for the political anarchist to reject voluntaryism because it employs institutional analysis. It borders on hypocrisy for the political anarchist to fall back upon the personal intentions of his favorite politicians in order to save them from the anarchist curse, when he has traveled merrily down the anarchist road without ever having regarded personal intentions as significant before this point. If an institutional analysis of the State is good enough to get us to anarchism, then it is good enough to get us to voluntaryism. Institutional analysis is not a bridge that can be conveniently burned by the political anarchist after he has used it to cross over to anarchism.
It is because of their common acceptance of the anarchist insight that the initial presumption shifts in favor of the voluntaryist. The voluntaryist and the political anarchist agree that the State is inherently aggressive. From this it follows that anyone who voluntarily joins the State — who campaigns for office, receives a salary, swears allegiance to the State, and so forth — is at least highly suspect from an anarchist point of view. There is a presumption, a prima facie case, against the political office-holder in anarchist theory (and thus against voting for a political office). The burden then falls not upon the voluntaryist to show how this office-holder participates in aggression — for both disputants already agree that the State is inherently aggressive and both accept vicarious liability — but upon the political anarchist to show how his favorite office-holder constitutes a valid exception to the general condemnation (the anarchist curse) of the State and its agents.
Anarchists agree that the State is necessarily aggressive, which is why they commonly use terms like “criminal gang” and “ruling class” to describe the State. But anarchists also realize that the State is not a disembodied entity. Institutions are not individuals; they cannot act in any fashion, much less act aggressively. Thus, if the anarchist analysis of the State is to have meaning, it must refer to individuals who work within the structure of the State apparatus. Individuals and their actions, considered within a broader institutional framework (prescribed goals, rules, and procedures), combine to form what anarchists mean by the State. Particular offices within the State, and the individuals who occupy those offices, are assessed according to their importance in directing, supporting, and furthering the institutionalized goals of State power.
It is because anarchists regard the State as inherently aggressive that there exists a presumption among anarchists that anyone who joins the State participates in this aggression. The anarchist curse — the presumption of evil — descends from the condemned institution to the individuals who are necessary to maintain the life of that institution. The institution is the skeleton, in effect, which requires the flesh and blood of real people to operate. These people are highly suspect in anarchist eyes, even if they do not personally aggress, because they are the components required to translate the institutional aggression of the State into concrete reality.
The anarchist presumption against agents of the State, like all presumptions, is defeasible. It may be that the political anarchist can argue for a valid exception to the general rule. He may be able to explain why we should regard all politicians as members of a criminal gang, except those politicians with “good” (i.e., libertarian) intentions. Personal intentions were not previously considered relevant to the anarchist analysis of the State, but the political anarchist may have uncovered new information that will convince his voluntaryist colleague. The political anarchist may thus be able to overcome the presumption, the anarchist curse, that makes his case seem initially implausible. (The idea of an “anarchist politician” does seem counter-intuitive at best.)
In our dispute between the voluntaryist and the political anarchist, therefore, the presumption is on the side of voluntaryism, and the political anarchist assumes the burden of proof. Anarchists of all persuasions have traditionally rejected electoral politics, and with good reason. This seems, after all, to be an essential part of what anarchism means. This is why I wrote in Party Dialogue (“The Voluntaryist Series,” no. 1) that “libertarianism must stand firm against all Senators, all Presidents, and so forth, because these offices and the legal power they embody are indispensable features of the State apparatus. After all, what can it possibly mean to oppose the State unless one opposes particular offices and institutions in which State power manifests itself? ”
With the preceding introduction material, we are now able to undertake a systematic analysis of voting. Some of the issues discussed thus far raise problems far too complex to be resolved without further discussion. These will be addressed in more detail in subsequent parts of this essay.