My 1981 textbook
analyzed government using a "periodic table" of human associations, an intentional analogy to Dmitri Mendeleev's 1869 periodic table of the chemical elements.
I like to joke that to discover a periodic table one must have a long, unpronounceable name like Mendeleev . . . or deLespinasse. But seriously, I think that my periodic table could kick-start progress in today's muddled political and legal analysis just as Mendeleev's did for chemistry exactly 150 years ago.
This periodic table's classification of associations suggests a fresh look at the Constitution, allowing us understand its essential ideas better. (To see how the different aspects of government discussed here fit together in the periodic table, click here.)
Associations can be voluntary, involuntary, or trusts. Government can be a party to all three types
of association, but most fundamentally it inflicts an involuntary association on the public — on every man, woman, and child subject to its jurisdiction. Government-as-legislator enacts genuine laws — general (applying to everybody, to the whole public) rules of action enforceable by deprivations of life, liberty, or property. Its taxes provide the funds government uses to enter into voluntary associations and trusts.
Voluntary associations are created by mutual consent of their parties to exchange or transfer inducements. Government-as-contractor enters voluntary associations with other governments, with private organizations like corporations, and with individuals. Our federal government enters voluntary associations with foreign governments through treaties. It enters voluntary associations with state and local governments, transferring money to them as grants-in-aid or in federal-state programs like Medicaid. It enters voluntary associations with individuals it hires. It buys bombers from Boeing.
American military forces now are people who consent to enter a voluntary association with the government. Under the previous draft, the fines or imprisonment for refusing to serve were not based on genuine laws. Conscription was enforced by government-as-bandit, whose pseudolaws imposed an involuntary association on arbitrarily selected individuals.
Government also confers inducements unilaterally on the public, individuals, or groups, acting as a trustee for them. Government as trustee I operates public schools and Indian reservations, protects children abused by their parents, and protects children's interests when parents divorce. If the value contributed to production by natural resource scarcities were captured and distributed equally to everyone subject to our government, as with the oil dividend in Alaska, this would be done by government-as-trustee II, for the entire public.
Pseudolaws, threatening sanctions for violating rules that apply only to some people, are never legitimate. The Constitution's authorization to enact laws should never be interpreted to empower Congress to enact pseudolaws. The resulting lack of authority to enact pseudolaws combined with the requirement of due process of law before anyone can be convicted are the Constitution's fundamental restraints on arbitrary government. The "equal protection of the laws" guaranteed by the Fifth and Fourteenth amendments is the protection of equal laws, laws applying to the actions of everybody.
Confusion may result because the Constitution uses the word "law" to mean two different things. Sometimes it refers to genuine laws, general rules of action enforceable by sanctions. Other times it refers to a statement of the terms on which and with whom government will enter into voluntary associations. Because they resemble the rules of a corporation, it is useful to call such statements bylaws. The 1974 legislation cutting off funds from the National Highway Trust Fund to states that did not enact a 55 mile per hour speed limit was a bylaw.
Our basic protection from government-as-legislator is that obnoxious rules of action won't be enacted if they apply to everybody. There is safety in numbers! Our basic protection from government as a party to voluntary associations is our right to refuse to enter into or remain in particular voluntary associations with it. Government-as-legislator can fine, imprison, or even execute us for violating its rules. But government-as-contractor can, at worst, refuse to associate with us in the first place or end its voluntary association with us, terminating inducements it had previously been conferring.
The Constitution's Equal Protection provisions obviously cannot apply to governmental bylaws. Voluntary associations require mutual consent of their parties. To allow legal challenges to anyone's refusal for any reason to enter a particular voluntary association would imply that a court might order the recalcitrant party to consent. But compulsory consent is a contradiction in terms! To speak of "equal protection of contract" would be patent nonsense.
Understanding the difference between genuine laws, pseudolaws, and bylaws can help us think more systematically about policies where clarity of thought is presently rare. A future column will explain how these distinctions can help us understand the Hatch Act and impeachment.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.
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