Tuesday, July 04, 2006

A Legislator's Responsibilities

The writers over at the Two Percent Company delivered condemnation to Senators who voted for the Flag Burning Amendment last week. They complained that, “when people that we expect to be semi-intelligent and semi-sane (at least compared to most of today's Republicans) vote for something this obviously wrong, it . . . disappoints us.”

I am going to go out on a limb and identify myself as somebody who is at least semi-intelligent and semi-sane. I also appreciate the fact that a Constitutional Amendment to burn the flag violates a basic principle of liberty. My view can be found in other posts that I have written on this issue.

Yet, if I had been a Senator, I have found myself voting for this Amendment.


A Senator or a Representative is an agent of the people from the district that he represents. Like all agents, they are duty-bound to execute the wishes of those who hire him unless their demands are so morally objectionable that they are unconscionable. The point at which a legislator can no longer represent the people is the point that he should resign. Worse, if a person is willing to admit that he cannot in good conscience participate in the civil institutions, at that point he must also declare that they only course left open is civil (and, perhaps, uncivil) disobedience.

Now, I would have likely done something that seems unheard of in political circles, and probably explains part of the reason why I would not last long in politics.

I would have gone to the people that I represent and said, “I am going to vote for this because you asked me to do so, and I am here to express your will. However, I hold that you are wrong. I hold that anybody who prohibits flag burning does not grasp the concept of free speech in specific, or freedom in general. Free speech means permitting people to express ideas that you find objectionable.

“Ultimately, there is no difference between insisting that flag burners go to jail (or worse) and insisting that people who draw pictures of Mohammad go to jail (or worse). Both groups assert the same arguments in defense of their cause – that desecrating a cultural icon is grounds for punishment. It would be one thing to admit this and to either permit both types of actions or punish both. It is quite another to be the champions of hypocrisy who say, ‘It is wrong for you to call for the punishment of those who desecrate your cultural icons; and, at the same time, those who desecrate my cultural icons should surely be punished.

“Those who insist on voting for this law prove themselves no better than the rioting Muslims they condemned only a few short months ago.”

Yet, after saying all of this, I would likely vote for the measure, if I determined that the people that I represented wanted me to do so.

The Agent's Duties

If you were a movie star, and I was your agent, it would be entirely outside of my real of responsibility to dictate which movies you would do or not do. I would reserve the right to offer your advice, but the final decision is yours, not mine.

This includes your decision to do movies that deliver messages that I do not agree with. If you want to do a movie that supports capital punishment, while I condemn capital punishment, it would be wrong for me to reject the script and say that you will not do the movie. If I am truly opposed to capital punishment to the degree that I could not, in good conscience, support your efforts to work on this movie, I would be obligated to resign my position before I would have the right to vote “no” on the capital punishment script.

So, when it comes to the flag burning amendment, I would act as an agent for the people that I represent. I would go to them and explain, as I have done above, why they should have me vote “yes” on this proposal. However, if I am unable to convince them, and they should continue to insist that I say “yes,” I would be obligated to either say “Yes,” or to resign and allow them to find somebody else who can serve as their agent.

Represents Who?

Another point of moral contention that I have is that I think that a legislator should represent his entire district, not just his party. That is, he should not go back and say, “What do the Democrats in my district want?” or “What do the Republicans want?” but should ask, “What do the people want?” If the people back home are strongly in favor of such an amendment, though my party tends to be against it, I would view it as my duty to represent the people with my vote, not my party.

A Flag Burning Amendment might well be favored by Republicans and not favored by Democrats. My vote will be determined by whether it is favored by the people without regard to whether they are Republican or Democrat.

Strategic Considerations

Another consideration that I would raise with my critics would go like this.

“You might want to take care who you are calling an idiot; you might discover that you are standing in front of a mirror. The way this district is set up, only a person willing to vote in favor of a flag burning amendment is capable of holding this particular seat. So, you have a question to ask. That question is not whether to have somebody in this seat who will vote against such an amendment. The question is which person who would vote for such an amendment would you want in this seat?”

I do consider the flag burning amendment to be a violation of principle, but not so much of a violation that I think it would be worth resigning over. There has been very little flag burning in the history of this country, and those who would burn the flag would still have other ways available to express dissatisfaction over their government. A lot of freedom and a lot of ability to express dissatisfaction remain.

I would then have to weigh this one infraction of a principle against the huge infractions that I may expect from a replacement legislator whose moral qualities I may suspect will be worse than my own.

The Nazi Guard Defense

Now, this does come uncomfortably close to the Nazi Guard defense. The Nazi Guard defense is the claim made by the Nazi concentration camp guard who says, “I was not as abusive of the inmates as my likely replacement would have been. I stayed at my post and did my job to save the inmates from the brutality that they would have experienced at the hands of my likely replacement.”

At some point it is reasonable to argue, “Those excuses carry no weight. You participated in a war crime and you should be prosecuted for it.”

The person responding to my vote for a flag burning amendment could make the similar claim that, “You participated in an infraction of the right to free speech and you should be condemned for it.”

Answering the Charge

Yet, I would argue that my vote would differ from the actions of the Nazi Guard in two areas that make condemnation inappropriate.

First, I would have met my obligation to make it known that I was acting as I thought I had a duty to act, but was doing so under protest. My actions would have been comparable to the Nazi Guard who, nonetheless, was vocal in his opposition to concentration camps and the maltreatment of those involved, who fought and argued against the camps to whatever degree that he was able.

Second, and much more important, the transgression here is much smaller than the genocide. Telling a person that he may not burn a flag is an insignificantly small infraction compared to telling him that he may not continue to live, or that he would have to endure conditions similar to torture.

Should a police officer resign his position unless he is in 100% agreement with the moral quality of every law that he promises to enforce? The answer is “no.” This rule would require that we have no police officers, because every police officer can find at least one law that he will not only disagree with, but find morally objectionable.

The decision to become a police officer does not mean that an individual must give up his moral conscience, but he must agree to do things that he may think are wrong. That is, unless the wrongs are so great that he cannot in good conscience continue his work. Executing Jews, we may argue, crosses the line. Arresting people who burn the flag, I believe, is a law we can expect law enforcement officers to enforce even if they (correctly) find it morally objectionable.

The principles that govern when a law enforcement officer should enforce laws he disagrees with are the same as the principles that govern when a legislator should represent the views of the people in his district. If the people back home want me to vote in favor of The Final Solution, I would refuse and resign – as I would expect the police officer or the soldier to refuse and resign. If the people back home want me to vote in favor of a flag burning amendment, I would do so, under protest, in the same way that I would expect the police officer to enforce the law, even if he does so under protest.

The One Vote Margin

Another fact to keep in mind is that one is foolish to think that the Senators went to the floor without knowing what the final vote would be. As an imaginary Senator, I would have likely been involved in a lot of backstage discussion about the vote. I would have had some insight as to how the votes were going. If the vote seemed close, such that my one vote might have affected the outcome, that would have affected my vote. In other words, I can easily imagine this being a situation where, if one Senator changes a vote from “no” to “yes”, that another Senator changes his vote from “yes” to “no” to maintain the balance.

I would suspect that the Democratic Party got together in a smoke filled room somewhere and said, “We can afford to have ten of our Senators vote for this Amendment. For the sake of preserving what little power we have, let us allow Senators A, B, C, D, E, F, G, H, I, and J vote ‘yes’. This will help them back home. The rest of us will vote ‘No.’ The measure will still be defeated.”

It is, I think, rash to assume that Senators are not smart enough to work out these types of strategies. The simple “one vote defeat” might not mean what the authors at Two Percent Company thinks it means.

The Final Solution

Ultimately, as an imaginary Senator who voted for the flag burning amendment in spite of my personal protests against it, I would like to respond to the Two Percent Company.

“I’m not the person you need to be talking to – or about. You should be focusing your attention on the people that I represent. Tell them to give me different orders and I will do so. If I follow your advice, there will be a Republican in this seat on the next election. Now, tell me, if you were me, would you really sacrifice this seat to a Republican for the sake of voting against an Amendment you already knew was going to be defeated anyway?"


Anonymous said...

If I were a legislator, I would not consider myself, or present myself, as an agent of those who elected me. If my job is only to reflect their wishes, then legislators can come up with bills then allow the people to vote on them.

But, I don't think it is the duty of legislators to simply vote the way the majority of voters they represent would vote. Is such a duty outlined in the Constitution? (I'm really asking, I don't know, but I doubt it).

As a candidate, I'd explain my philosophy and provide my views on topical issues as well as issues that I simply find important. You can vote for me if you like what I present. After I'm a candidate, you can vote for my re-election if you: like my voting record, my stands on issues, other aspects of the work I've done, think I'm intelligent, competent, effective, and so on. But don't expect me to simply vote the way I'm instructed by my constituents. I'm going to use my judgement and vote the way I think will be effective, morally right, and right for the country and those I represent. If the voters don't agree with me, vote me out.

As a legislator, I'd basically consider myself an expert on policy issues. It's my job to know the issues, hire a staff to research issues, etc. Voters are mostly lay people on policy issues. I'm sure not going to rubber stamp the majority view of the voters.

Alonzo Fyfe said...


You are reading something into what I write that is not there -- constructing a straw man.

Yes, my job as Senator would be to attend hearings and acquire expert information that I would use in my vote.

It is a not a matter of "simply" voting as they would vote -- and I never said it was. It is a matter of voting as they would vote if they had the information that I had.

So, if we are talking about laws to reduce carbon emissions in order to delay the effects of global warming, I would say to the people back home, "My vote reflects what I think you would have done if you had learned the things about global warming that I learned."

Yet, in doing this, I am still an agent of the people. It is like hiring an engineer to design a house. The engineer has to use sound engineering practices. He cannot go to the person wanting the house and say, "What type of concrete should we use in the foundation, and what gauge wiring should we use?" Those who hire an architect expect him to use his expert knowledge. Yet, the architect cannot simply design whatever house he likes -- he has to design a house that suits those who hire him.

To those who protested my actions on the grounds that they think that global warming is not real, I would answer that I looked at the evidence in detail -- more closely than they did -- and they are mistaken.

However, what kind of 'mistake' would they be making in their call for an amendment to ban flag burning? What type of expert testimony is lacking? How can I claim that my vote was grounded on some fact that my expert staff dug up that the would have caused the people back home to change their mind if they knew this fact?

Now, I believe in moral facts. I believe that one of those moral facts is that a ban on flag burning is wrong. I also consider myself something of an expert in the area of moral facts. Those who support a flag-burning amendment display a certain ignorance of the moral facts. So, I can say that there are facts that the people back home are getting wrong.

Yet, I also hold that among those moral facts is the fact that arrogance is a vice. It is arrogant to pretend to too much certainty. So, humility suggests saying, "Maybe I, who am in the minority on this issue, am the one who does not have the right answer."

Which is part of the reason why I argue that the Two Percent Company and others should not focus their attention on the Senator, but focus it instead on the people. Get the people to realize that it is wrong to support a flag burning amendment, then I, as a Senator, would be pleased to cast my vote that way as well.

Anonymous said...

I tend to agree with Thayne and I'm not sure that you fully addressed his concerns. True, you didn't say that Senators should "simply" reflect the wishes (or presumed wishes in a state of ideal information spread), but you do argue that "they are duty-bound to execute the wishes of those who hire him" except in the most morally egregious circumstances (or resign if they cannot). I think that this is wrong. I think that executing the wishes of the voters is *one* of the things which they are supposed to do - but it's not the *only* thing they are supposed to do and the wishes of the voters is not the only or always the most important thing to take into account when voting on legislation.

These elected representatives were intended to in fact be an anti-democratic buffer between "mob" passions and legislation. Moreover, Senators were supposed to be an even *more* anti-democratic buffer. Don't forget, they were not originally elected. Their 6-year terms, combined with only 1/3 being elected every 2 years, creates a large campaign buffer between them and unpopular votes. This is deliberate: for any given vote, up to a third of them are long enough from re-election that they surely not care if it's unpopular, and another third can probably not care. This creates enough votes to block legislation that is popular, but a bad idea. The Senate is suppose to be a slower, more deliberative body where minorities can slow down and block legislation, making it more difficult for popular measures which are a bad idea to get through too quickly or easily. It's not coincidence that the Flag Burning amendment keeps passing the House but not the Senate.

In addition, the Senate was created specifically to have a legislative body that is derived from the "people," but which is expected to be responsible to the nation as a whole. Senators are supposed to vote not simply on the basis of what voters back home wish or would wish, but on the basis of what they think is best for their states and for the nation. Representatives are elected in small districts; Senators by the entire state. Senators, not Representatives, are responsible for approving Supreme Court justices, federal judges, ambassadors, treaties, cabinet members, etc. The House votes to impeach, but the trial is conducted by the Senate. The House is supposed to be more immediately and directly responsible to the wishes of the people; the Senate is supposed to be more removed from them and craft legislation which take much more into account than those immediate wishes.

For all these reasons and more, I think that when we're discussing the Senate it's wrong to only say that Senators are duty-bound to "execute the wishes of those who hire him." A Senator is *also* duty-bound to take far more into consideration than just the wishes of voters - they should also exercise their own moral and political judgment in order to determine what they think is best for the country. Sometimes, that may be at odds with the "wishes of the voters."

One more thing should be added here: early in America, politicians would probably have been horrified at the idea that they should carefully monitor what the voters want on every issue or even on the biggest issues. I remember reading that George Washington's attitude was that voters should elect the man they believed had the best character and then trust him to do the best job in crafting and voting on legislation. They should not inquire on a politician's specific positions and politicians shouldn't go around making promises about specific issues. It was unseemly and base. In effect, the early politicians and voters engaged in virtue-based elections rather than consequentialist elections (it was also aristocratic and arrogant, of course).

Whatever you might think about this in the field of ethics, I think that it has a lot to recommend it in the field of politics. After all, when we focus too much on electing people on the basis of how they vote now on the issues which matter most to us, we ignore the impact their overall character will have on their votes on issues we haven't considered yet. Remember, people voting for Senators, Representatives, and President in 2000 couldn't imagine that those people would be deciding on whether to invade Afghanistan and Iraq in a couple of years. We can't know what our representatives will have to deal with in even 1 year, much less 3 or 4 years from now. It might be a good idea to take into account their character and "virtues" a bit more and not just their professed stands on narrow issues. Perhaps we should vote for someone who has the "wrong" position on a couple of issues if we think they have a much more reasoned, careful, and ethical approach to political issues overall.

Anonymous said...

I think if my constituency had my sense of history, an understanding of the importance of protecting free speech (speech that the majority finds offensive has always required the most protection), they would vote against it. I would be able to do that in good conscience without feeling the need to actually spend the years required to fully educate them on the issue.