In a 1978 interview conducted by James Buchanan, economist and philosopher F. A. Hayek, when considering constitutional restraints on the scope of government, expressed that “the [First Amendment] ought to read ‘Congress shall make no law authorizing government to take any discriminatory measures of coercion.’ I think this would make all the other rights unnecessary.”1 This idea of generality—that all members of society are to be bound by the same laws—meets with little resistance in the Western world.
For many whose ideologies stem from what Thomas Sowell refers to as the constrained vision of man, generality is a necessary or even sufficient requisite for fair governance that provides equality of process (not of opportunity or outcome). In this view, any outcome is just so long as all have to operate within the same set of rules. As Sowell puts it, “If a foot race is conducted under fair conditions, then the result is just, whether that result is the same person winning again and again or a different winner each time. Results do not define justice in the constrained vision.”2
With this basic criterion, it would seem simple enough to classify any proposed legislation as just or unjust, or as constitutional or unconstitutional in Hayek’s ideal world. A law that requires whites be taxed at a higher rate than blacks would be easily defined and shot down as violating the generality principle. The same might be said of the current Selective Service System in the Unites States, in which all males above the age of eighteen are required to register. There are a great many policies, though, which are not so cut-and-dried.
A progressive tax system is anathema to conservatives and libertarians because it purportedly subjects some individuals to different rules than others. It is only a matter of wording and perspective, though, that determines whether many policies, including a progressive tax, adhere to the principle of generality. Libertarians and conservatives may immediately see a system that taxes those earning 40 thousand dollars per year at a higher marginal rate (say 30 percent) than those earning less than 40 thousand dollars (say 10 percent) as deploying “discriminatory measures of coercion.” Let us change the wording of this law, without changing its meaning: There is a flat tax rate of 10 percent. In addition to this, it is illegal to earn an income in excess of 40 thousand dollars, the punishment for which is an additional 20 percent to be taken from all illegal income. With this wording, we can tilt our heads and see that a progressive tax system does indeed apply the same rules to all individuals. It is only when some of these individuals choose to earn more than 40 thousand dollars that additional rules become relevant.
This does open up generality to very liberal interpretation, but the same reasoning can be applied in ways that Hayek’s more conservative followers may also find attractive. For example, at first glance, the more progressive among us may see laws prohibiting legal gay marriage as a blatant denial of rights to homosexuals that are granted to heterosexuals; however, we could—and many conservatives do—view such a law as allowing everyone to marry a member of the opposite sex and allowing no one to marry a member of the same sex. If we describe the law this way, it seems to adhere to the principle of generality. Such a law does prevent some members of society from satisfying their preferences while legally permitting others to satisfy theirs, but this is the very nature of law. Sadistic members of society are barred from satisfying their preference for destruction of human life, a preference not shared by many of their peaceful neighbors. How are we to decide against which subjective preferences to discriminate and which to allow?
If general language can be used to uphold “traditional” marriage as well as prevent homicide (which is admittedly much more essential to the functioning of society), how can we, without arbitrariness, differentiate between the two using generality as the only criterion. Clearly, implicit in the generality advocate’s distinctions between prohibiting same-sex marriages and prohibiting murder—both of which can be understood as clear of discriminatory measures of coercion—are a set of normative assumptions. The only way we can possibly imagine disallowing same-sex marriage as violating the generality principle is if we understand government’s support of one preference over another as non-general. If we are to reject to “traditional” marriage laws for this stated reason, we must reject laws against murder on the same grounds, because, by punishing murder and allowing peaceful interaction, government supports the majority preference while forbidding that of a minority. I would expect most of Hayek’s fellow travelers who follow this logic to its conclusion would choose to supplement the generality principle with some set of natural rights. Hayek himself does, writing that “whatever form [Rule of Law] takes, any such limitations of the powers of legislation imply the recognition of the inalienable right of the individual, inviolable rights of man.“3
Perhaps there should also be considerations of available choices and exist costs in determining whether or not a law is general. There is a spectrum of difficulty in adjusting one’s action to avoid coming into contact with government coercion. Avoiding the coercion of a law that taxes all citizens a monthly dollar amount equal to the number of feet they live below sea level might only involve moving to another neighborhood and would involve lower costs than would escaping the coercion of a surtax levied on all businesses involved in manufacturing since this would require abandoning invested time, planning, and resources. And avoiding the state’s general coercion of prohibiting murder certainly leaves more choices and lower costs than escaping the enforcement of the U.S.’s mandatory Selective Service enrollment, which would require being born the opposite sex. Does the government’s generality of coercion mean anything if the coercion is unavoidable or would require tremendous exit costs?
It is also worth noting that legislation that is worded generally and applies to everyone can have unequal effects upon different groups and can be detrimental to marketplace competition. Hayek seems just to pretend this is not true, arguing that “to prohibit the use of certain poisonous substances, or to require special precautions in their use, to limit working hours or to require certain sanitary arrangements, is fully compatible with the preservation of competition.”4 Examples to the contrary abound: Economic analysis has shown that laws requiring an occupational license to braid hair have disproportionate adverse effects upon African–Americans of modest means; minimum wage laws give advantage to larger firms over small businesses for whom wages are a proportionately larger cost; small firms are further disadvantaged by the fact that interest payments on debt are tax-deductible while returns to equity are not. This list could go on and on. Hayek’s one constitutional amendment would do nothing to prevent policies such as these from being enacted. Those who concern themselves with equality of process are not always concerned with equality of opportunity, but a window for these sorts of anticompetitive policies should worry libertarians and free-marketeers.
Though Hayek’s claim that there should be but a single amendment—one declaring that all laws be general—is both bold and laconic, a careful consideration shows that this rule alone would provide a poor constitutional framework and would fail to restrict government in any meaningful way because generality is a linguistic feature that can be employed in codifying just about any law. Generality also fails to ensure both the equality of process desired by conservatives, and the equality of opportunity desired by social democrats. While the intention of only allowing nondiscriminatory coercion is to provide an equal playing field and foster competition, even laws that bind everyone to behave in the same way can have the exact opposite effect. The fact that advocates of generality have such a propensity to fall back upon supplements to and qualifications of the principle corroborates the claim that generality is an incomplete and insufficient ingredient in determining good policy by the advocates’ own standards.
- http://hayek.ufm.edu/index.php/James_Buchanan, 3:39.
- Sowell, Thomas. A Conflict of Visions: Ideological Origins of Political Struggles. New York: Basic Books, 2007. 95.
- Hayek, F. A. The Road to Serfdom. Chicago: University of Chicago Press, 2007. 117.
- Ibid., 86.