type='note' xlink:href='#ch17_note_12'>[12]
There is a magic in a process where reasons count — not where experts rule or where only smart people have the vote, but where power is set in the face of reason. The magic is in a process where citizens give reasons and understand that power is constrained by these reasons.
This was the magic that Tocqueville wrote of when he told the world of the amazing system of juries in the United States. Citizens serving on juries must make reasoned, persuasive arguments in coming to decisions that often have extraordinary consequences for social and political life. Writing in 1835, Tocqueville said of juries:
The jury . . . serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged and with the notion of right. . . . It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged. . . . The jury teaches every man not to recoil before the responsibility of his own actions and impresses him with that manly confidence without which no political virtue can exist. It invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in its government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society.[13]
It wasn’t Tocqueville, however, or any other theorist, who sold me on this ideal. It was a lawyer who first let me see the power of this idea — a lawyer from Madison, Wisconsin, my uncle, Richard Cates.
We live in a time when the sane vilify lawyers. No doubt lawyers are in part responsible for this. But I can’t accept it, and not only because I train lawyers for a living. I can’t accept it because etched into my memory is a picture my uncle sketched, explaining why he was a lawyer. In 1974 he had just returned from Washington, where he worked for the House Committee on Impeachment — of Nixon, not Clinton, though Hillary Rodham was working with him. I pressed him to tell me everything; I wanted to hear about the battles. It was not a topic that we discussed much at home. My parents were Republicans. My uncle was not.
My uncle’s job was to teach the congressmen about the facts in the case — to first learn everything that was known, and then to teach this to the members of the committee. Although there was much about his story that I will never forget, the most compelling part was not really related to the impeachment. My uncle was describing for me the essence of his job — both for the House and for his clients:
It is what a lawyer does, what a good lawyer does, that makes this system work. It is not the bluffing, or the outrage, or the strategies and tactics. It is something much simpler than that. What a good lawyer does is tell a story that persuades. Not by hiding the truth or exciting the emotion, but using reason, through a story, to persuade.
When it works, it does something to the people who experience this persuasion. Some, for the first time in their lives, see power constrained by reason. Not by votes, not by wealth, not by who someone knows — but by an argument that persuades. This is the magic of our system, however rare the miracles may be.
This picture stuck — not in the elitist version of experts deciding what’s best, nor in its populist version of excited crowds yelling opponents down, but in the simple version that juries know. And it is this simple picture that our current democracy misses. Where through deliberation, and understanding, and a process of building community, judgments get made about how to go on.
We could build some of this back into our democracy. The more we do, the less significant the flash pulses will be. And the less significant these flash pulses are, the more we might have faith again in that part of our tradition that made us revolutionaries in 1789 — the commitment to a form of government that respects deliberation and the people, and that stands opposed to corruption dressed in aristocratic baubles.
Chapter 18. What Declan Doesn't Get
Declan McCullagh is a writer who works for Wired News. He also runs a mailing list that feeds subscribers bulletins that he decides to forward and facilitates a discussion among these members. The list was originally called “Fight Censorship”, and it initially attracted a large number of subscribers who were eager to organize to resist the government’s efforts to “censor” the Net.
But Declan has converted the list to far more than a discussion of censorship. He feeds to the list other news that he imagines his subscribers will enjoy. So in addition to news about efforts to eliminate porn from the Net, Declan includes reports on FBI wiretaps, or efforts to protect privacy, or the government’s efforts to enforce the nation’s antitrust laws. I’m a subscriber; I enjoy the posts.
Declan’s politics are clear. He’s a smart libertarian whose first reaction to any suggestion that involves government is scorn. In one recent message, he cited a story about a British provider violating fax spam laws; this, he argued, showed that laws regulating e-mail spam are useless. In another, he criticized efforts by Reporters Without Borders to pass laws to protect free speech internationally. [1] There is one unifying theme to Declan’s posts: Let the Net alone. And with a sometimes self-righteous sneer, he ridicules those who question this simple, if powerful, idea.
I’ve watched Declan’s list for some time. For a brief time, long ago, I watched the discussion part of the list as well. And throughout the years I have had the pleasure of learning from Declan, a single simple message has dominated the thread: The question is not just, Declan insists again and again, whether there are “market failures” that require government intervention. The question is also whether there are “government failures.” (As he said in a recent post about the Reporters Without Borders, “Julien Pain’s able to identify all these apparent examples of market failure, but he’s not as able to identify instances of government failure.”) And the consequence for Declan from asking the second is (just about always) to recommend we do nothing.
Declan’s question has a very good pedigree. It was the question Ronald Coase first started asking as he worked toward his Nobel Prize. Economists such as Pigou had identified goods that markets couldn’t provide. That was enough for Pigou to show that governments should therefore step in. But as Coase said,
In choosing between social arrangements within the context of which individual decisions are made, we have to bear in mind that a change in the existing system which will lead to an improvement in some decisions may well lead to a worsening of others. Furthermore we have to take into account the costs involved in operating the various social arrangements (whether it be the working of a market or of a government department) as well as the costs involved in moving to a new system. In devising and choosing between social arrangements we should have regard for the total effect.[2]
