For a Less Divided America, Let People Pick Their Own Laws

It sure beats endless battles over who gets to stuff their preferred governance down the throats of the vanquished.


VITTA GALLERY/Westend61 GmbH/Newscom

After last week's hearings on Supreme Court nominee Brett Kavanaugh, it became pretty obvious that the questions, answers, tears, and grandstanding had changed few, if any, minds. "Today felt very much like an update of the 1850s: 2 very distinct parts of US that no longer care to even fake that they respect or value the other," tweeted Ronald Brownstein of CNN and The Atlantic.

The 1850s? We know how that ended: badly. Why not head off continued conflict by letting these "very distinct parts" of the U.S. be even more distinct—so much so that there's less for them to battle over. We could even break with the past and try political solutions that let people live side by side without submitting to the authority of opponents they neither respect not value.

Brownstein wasn't the only observer to notice the political breach—a breach that appears to be growing.

"It is hard to believe that Democrats and Republicans were watching the same hearings," the YouGov polling firm marveled while reporting that Democrats disbelieved Kavanaugh and believed Ford, his accuser, in almost exactly the same numbers that Republicans disbelieved Ford and believed Kavanaugh.

"The United States is one country, but Americans are living in two separate worlds," pointed out Emma Green for The Atlantic, while reporting on July 2018 polling data. "[T]hey have become radically split in their basic perceptions of reality."

If Americans are living in separate worlds, it hardly makes sense to continue forcing them to live in the same country, under policies one faction imposes on another, based not only on different priorities but incompatible perceptions of the world around them. Messy secession or civil war scenarios grab headlines in reaction to this divide, but they offer incomplete—or horrific—outcomes. There may be a better way—one that would allow people to live alongside each other according to different sets of rules, and by the authority of their preferred decision-makers.

"Even the wisest and best of governments never functions with the full and free consent of all its subjects observed the Belgian economist Paul Emile de Puydt in the 1860 article "Panarchy," noting that "there are parties, either victorious or defeated; there are majorities and minorities in perpetual struggle; and the more confused their notions are, the more passionately they hold to their ideals."

"Parties…in perpetual struggle" would seem to describe any political system in which the prize of power becomes too valuable to surrender. And it really seems to ring a bell in our world of political factions inhabiting separate realities and worlds.

What solution did de Puydt offer?

"I hope we can all go on living together wherever we are, or elsewhere, if one likes, but without discord, like brothers, each freely holding his opinions and submitting only to a power personally chosen and accepted," offered the author. He proposed that people be able to freely register their support for, or withdrawal from, any variety of political associations that could draw sufficient support to maintain their existence.

"Ultimately," continued de Puydt, "everyone would live in his own individual political community, quite as if there were not another, nay, ten other, political communities nearby, each having its own contributors too."

He compared the system he proposed to Swiss cantons or American states, operating within a larger nation, although not separated geographically. They could settle disputes, he argued, "between subjects of different governments, or between one government and a subject of another…observing the principles hitherto observed between neighbouring peaceful States."

More recently, scholars have described the very real world practice of varying and overlapping jurisdictions negotiating the boundaries of their authority as "polycentrism." The scholars Michael Polanyi and Elinor and Vincent Ostrom are probably most closely associated with the idea of "social systems of many decision centers having limited and autonomous prerogatives and operating under an overarching set of rules."

Polanyi argued that the sciences, arts, religion, and especially the market owed their dynamism and advancement to the freedom people enjoy to engage in independent activities on their own or through varied institutions, subject to broad, generally agreed upon values. The Ostroms pointed to the overlapping federal, state, and local jurisdictions and agencies in American cities as examples that agencies with duplicate responsibilities and authority could actually be evidence of healthy competition and could coordinate with minimal conflict.

Other thinkers, like Bruce Benson, Randy Barnett, Gary Chartier, and Tom W. Bell take the next step and apply the ideal of polycentric law and governance to individuals.

In "Polycentric Law," published in 1992, Bell pointed to "Gaul and Italy during the early Middle Ages, when Roman and Germanic laws existed side by side with people opting to define themselves as either Romans or Franks/Burgundians/Lombards—something that became increasingly a matter of choice as time passed."

Laws selected as a matter of preferred identity? That sounds an awful lot like de Puydt's panarchy dwellers, registering for the political and legal systems of their choice. Or maybe like Republicans, Democrats, libertarians, and everybody else choosing their own governments while still living and working together.

Is the idea of an America made up of united states of choice—Californias and New Hampshires of the mind—a bit out there? You bet. It would be a big change, and anything of that magnitude is out there right up until it happens.

But when pundits talk about Americans living in separate world and evoke the 1850s as a parallel for the current political moment, a big change may be just what is needed. A big change allowing people to peacefully pick the laws they live by while respecting their neighbors' right to do the same is better than endless battles over who gets to stuff their preferred governance down the throats of the vanquished.