Why Democracy And The Rule Of Law Often Require Lines That Are Somewhat Arbitrary And Unenforceable

Every action by the government involves making a choice. A rule of law, in turn, often requires setting boundaries. Tax this and subsidize that. Require compliance here but not there. Declare some actions illegal; otherwise, let people and the market decide what to do.

This line drawing is unavoidable, even though it is usually imprecise and challenging to enforce strictly. In countries that follow the rule of law, legislation sets the boundaries for what will be taxed, subsidized, regulated, and punished, even as ongoing events, knowledge, and public opinion demand constant reassessment. A society sharply divided into red-blue, right-left, Democratic-Republican camps struggles to handle the inevitable inexactness of line-drawing and its enforcement. For a stark example of the potential chaos that extreme divisiveness can cause, consider what happened to Germany after the majority of voters supported Nazis or Communists in two 1932 elections.

Extremist views differ significantly from those of the median voter, even if they dominate in one camp or the other. They hinder the government’s effective functioning by making democratic compromise very difficult.

To demonstrate my case, I discuss three examples of dilemmas that are unavoidable in drawing lines today, arranged from least to most controversial: speed limits, tax laws governing political speech, and immigration. Analogous concerns arise at various levels in nearly everything the government does.

Three examples of essential, arbitrary, and partially unenforceable lines.

Speed limits. Local, state, and federal governments aim to ensure safety without placing excessive time burdens on drivers. In practice, this usually means setting fixed speed limits, even though, ideally, each limit would vary based on factors such as drivers’ abilities, the urgency of their tasks, the time of day, and other relevant considerations. To make things more complicated, the government can’t enforce laws everywhere, nor should it waste valuable resources trying to do so.

Yet we still accept the arbitrary nature and inconsistent enforcement of speed limits. Remove them, and accident rates would skyrocket.

Restrictions on political activities by charities and other tax-exempt organizations. The “Johnson Amendment,” proposed by Lyndon Johnson and enacted in 1954, prohibits political campaign activity by charities and churches. Much of the opposition to this amendment centers on whether banning preachers from endorsing candidates from the pulpit infringes on freedom of religion, not just on free speech. Other tax laws limit or regulate lobbying by charities, with higher limits for foundations compared to most operating charities. IRS regulations and enforcement efforts aim to define and enforce Congressional intent regarding what constitutes excessive versus acceptable political activity or lobbying by charities.

In truth, the IRS enforces these laws minimally, partly because Congress effectively allocates few staff to the nonprofit sector, and partly because such efforts can easily become controversial. For example, approximately 15 years ago, the IRS provoked significant anger in Congress when it requested information from many Tea Party organizations to determine whether they qualified as social welfare (tax-exempt) organizations rather than non-exempt political groups. Also consider: do you think that Black, evangelical, and Catholic churches, or synagogues and mosques stay silent when they believe laws or enforcement practices discriminate against their own members or beliefs?

To make matters even more complicated, Congress explicitly defined education as a legitimate activity for a charity, leaving unclear when education crosses the line into excessive political activity. Ultimately, a truckload of “almost-political” activities can still pass through the educational “eye of the needle” to maintain charitable status.

If the law can’t be fully enforced, why have it? The answer is simple. Even a truck full of questionable activity isn’t an airplane full. Without some boundary between politics and charitable work, however vague, churches, charities, and tax-exempt organizations could easily become shells for political groups. At that point, Congress might as well give up and allow taxpayers to deduct all political contributions as charitable and all political organizations to treat their earnings as tax-exempt. But that would undermine the entire idea of charity. Besides, any organization can participate in political activities as much as it wants as long as it doesn’t seek tax-exempt status.

Immigration. Since the beginning of humankind, people have migrated across borders. Until modern times, most borders—aside from waterways and mountain ranges—were quite fluid. People who are starving, unemployed, persecuted, or simply seeking a better life will always move to and search for places where jobs, freedom, relatives, and peace help them thrive. France’s donation of the Statue of Liberty, with its inscription about “tired…poor…huddled masses yearning to be free,” reflected the desires of, and the welcome extended to, most of our ancestors crossing boundaries, not just future newcomers.

Still, if a nation chooses to limit immigration across borders—something all modern nations do to some extent—then it must establish laws that distinguish legal from illegal immigration. Yet any line creates ongoing tension that can only be alleviated, never fully resolved. If your family can thrive only by crossing a border, you’re making a morally correct decision to try.

One extreme response calls for a large police state that still cannot completely prevent people seeking freedom, peace, or opportunity from entering illegally; the other extreme would remove borders altogether. As long as neither extreme is acceptable, Congress can only make compromises that reduce, but do not eliminate, the tension. Currently, such compromises offend extremists so much that Congress has become dysfunctional. The current chaos surrounding immigration mainly stems from our representatives’ inability to agree on better, though never perfect, restrictions that will always remain somewhat arbitrary, unenforceable, and hence, controversial.

The ability of a well-functioning democracy to address dilemmas peacefully

My purpose here is not to define where lines should be drawn nor to decide how much government should try to enforce them. While we often see democracy as a system that fulfills the will of its people, we are usually disappointed when laws or their enforcement do not match our idealized expectations of what those laws should accomplish. Some want those lines pushed to an extreme of unlimited enforcement or to a point where there are no lines or enforcement at all. In many cases, neither goal can ever be satisfied.

Democracy’s strength lies not in any inherent superiority in resolving governance dilemmas. Instead, it provides a peaceful electoral and legislative process for negotiating how to accept and address those dilemmas, however imperfect the outcomes may be.