What Does a Law-and-Order Microstate Look Like?
American conservatives endorse a robust notion of the rule of law, which they believe leads to a well-functioning democracy. If you can count on laws being enforced, peace is more easily maintained, private property is protected, and the free-market can run as efficiently as possible. On the whole, I would argue that these are laudable goals, and that conservatives are correct in crediting a law-governed society for their attainment. This said, where conservatives become polarizing is when their proclivity for a rules governed society bleeds into the social sphere. What plants are smoked, who sleeps with whom, and which restroom one chooses to use are social phenomena with which some conservatives have quite the problem.
Libertarians, however, represent a different set of interests. In fact, libertarians are in opposition to conservatives insofar as libertarians generally distrust legislative decisions, understand lawmaking and liberty to be negatively correlated, and wish to leave the social sphere alone as much as possible. Where libertarians “lose” people, is when their political philosophy rings anarchic. Just consider how the American polity laments the gridlock in Congress (as if we really need that body to legislate more!) and one can see how libertarians heckling Gary Johnson for being in favor of seatbelt laws wouldn’t make for great libertarian polling numbers. Quirkiness aside, the libertarian crowd has a good point; outside of a few critical laws, can the average American really argue that the countless federal, state, and municipal laws really make his life better? Or, at the very least, does one even know all of the laws under which he lives? Perhaps not, for many of the laws are not enforced.
I believe the positive aspects of both conservatism and libertarianism could be combined in something I will call a law-and-order microstate, or a “conservatarian” government, to borrow Charles C.W. Cooke’s term. Generally speaking, the law-and-order microstate makes two fundamental claims. First, we ought to enforce the laws that are democratically passed (a conservative belief). Second, that most legislation is superfluous at best, and harmful to liberty at worst. Synthesizing the two position yields the following conservatarian slogan: “We don’t want many laws, but those we do have will be enforced!” The ensuing discussion will deal with immigration, taxation, and cannabis laws in order to investigate how such a law-and-order microstate might work in the U.S. Before continuing, I’ll note that this article is meant to explore the theoretical merits of such a political synthesis, but the pragmatic and economic considerations fall outside of the scope of this piece (and the author’s knowledge).
Let’s start with taxation. Conservatives and libertarians largely agree that taxes are a necessary evil (though some libertarians go one step further and liken taxation to theft at gunpoint). What we have now in the way of a tax scheme is both conservatives’ and libertarians’ worst nightmare, namely, a labyrinthian scheme with loopholes, exemptions, and gradations abound. Not to mention, about half of the nation’s persons do not pay a cent in federal income tax. Conservatives lament the historically high corporate tax rate—though the passage of the Tax Cut and Job Acts in 2017 brought this rate in line with world averages—as a reason for America’s global economic non-competitiveness. Libertarians question the validity of a tax system that exempts half of the country, hits the middle and upper-middle classes hard, and allows for rich individuals and corporations like Apple to avoid having to pay much in taxes whatsoever.
What exactly would a law-and-order microstate sympathizer suggest in the face of this complex and seemingly ineffectual system? Broadly speaking, the tax scheme would be greatly simplified, perhaps modeled on the basic notion of a flat-tax scheme. Most importantly, however, there would be low taxes with little or no loopholes. That the state is tasked with tax collection is a necessary evil, but the current relationship between an increasingly complex tax code and a savvy corporate sector that exploits these loopholes shifts the tax burden to the middle class, and exemplifies the “corporate welfare” that every political group ought to disdain. Something like a flat tax scheme would hold all taxable citizens, irrespective of their wealth, accountable for paying something into the federal “pool” of money so to speak; concurrently, the harmful relationship between corporate special interests and a nearly incomprehensibly confusing tax scheme, courtesy of elected officials, would largely be dissolved.
Immigration in the United States represents perhaps an even clearer example of laws that are patently ignored. One need not be an immigration scholar to note that having more than 10 million unaccounted for persons is indicative of a failure, even if the failure is purely administrative. Surely, there are some Americans who, because of xenophobic tendencies, misinformation, supposed economic concerns, etc., are facially opposed to immigration. However, I believe the majority of Americans, even political conservatives, support immigration that is subject to a rigorous legal process. In other words, these persons take no issue with immigrants per se, but rather with a country that ignores the laws on the books is not upholding its end of the democratic agreement. Policies like DACA are indicative of a predictable cycle; namely, the United States passes an immigration law, it is not properly enforced, persons enter the country illegally, and the country must morally come to grips with the fact that, besides not having signed the correct paperwork, these persons are Americans. The result is that conservatives criticize a government that has failed to uphold one of its very few explicitly named functions (maintaining a border) and libertarians cite how removing immigrants harms the economy.
To appease those who wish to see laws that were democratically agreed upon while not stunting the influx of immigrants that provide the U.S with both tangible (i.e. economic) and intangible (i.e. cultural) benefits, I suggest a streamlined citizenship and/or visa program and a serious policy of border enforcement. (A wall is unnecessary; in keeping with the message of this essay, I simply advocate for enforcing the border deportation and protection policies that are currently on the books.) Anyone who is even tangentially familiar with the journey into the United States illegally (Sonia Nazario’s Enrique's Journey is a good place to start) would conclude that coming to the United States illegally is a move which only a desperate person would consider. This said, streamlining the immigration process would result in the enforcement of the laws on the books ; less immigrant suffering, both in crossing the border and living “off the grid;” and put an end to massive and amorphous policies, including the prospect of building a wall.
Lastly, we will take a look at the United States’ treatment of cannabis. The consumption of weed in states where it is technically illegal but its use is openly tolerated is another example of ignoring the laws on the books. For instance, I am from the western part of Massachusetts. Not but a 20 minute drive from my house, an annual April 20th festival is held in downtown Northampton, MA. How does it make any sense to maintain the illegality of cannabis consumption when the drug is used so publicly? In fact, I would argue that, at the core of the above three examples, there is something damaging to the democratic ethos in blatantly ignoring laws that are passed. In some way, such ignoring of the laws detracts from the seriousness that lawfulness possesses in general. Personally, I think making illegal a plant that has hitherto accounted for exactly zero deaths is as foolish as it is an overextension of the state, but if a state is to pass a law against cannabis consumption, a good conservatarian ought to support the enforcement of the law. Otherwise, this state sees more and more legislation and a consistently lower amount of “order”.
The law-and-order microstate advocate has his work cut out for him. A general rule of centralized power is that it naturally tends to get bigger, and reigning in its influence is difficult. The tax system as it currently stands allows elected officials to (dis)incentivize behavior as they so desire, and corporations like Apple are in no rush to swap brilliant tax evasion strategies for a modest, but enforced, tax rate. With regard to immigration, I can’t help but think that the overall disunion in Congress has led to what some call an immigration crisis. The United States has always relied on immigrants to make the nation exceptional, and no political group can argue that millions of undocumented persons is better than a fair, legal process. Cannabis legalization is gaining traction, but in many states, the lax enforcement of laws is still common. Personally, I think libertarians are correct insofar as the state really has no business regulating the plant, but conservatives have a point when they say that openly disregarding a law is silly at best and harmful to democracy at worst.
Regardless of the issue, the conservatarian tendency is not to pass more laws to fix a supposed problem, but first, to survey the current laws to see if their enforcement could solve the issue. When one takes time to engage in this practice, one might come to find that a given law is not needed at all. What is never beneficial for liberty, however, are laws that are merely decorative. Instead, we ought to opt for as few laws as possible that are sternly and consistently enforced. In doing so, conservatives won’t legislate the bedroom and the bathroom as much, libertarians won’t inflict anarchy on the nation, and liberals might even be happy to hear that Apple is paying taxes and immigrants are being paid the minimum wage.
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