If individual liberty is the highest value, one can certainly imagine situations where laws should be broken by government rulers. These, however, do not cover Donald Trump’s claim, in a motion to dismiss filed on October 5, that the president has “absolute immunity” against prosecution, a claim reminiscent of Richard Nixon.
The neatest case may be Anthony de Jasay’s “Capitalist State,” a minimal state that he believes would be acceptable if only it were not unstable. The Capitalist State would not govern, that is, discriminate in favor of some citizens and against others, but on the contrary would reign for the sole purpose of preventing any other state, domestic or foreign, from taking over. Its only function would be to preserve the free society. It if were seriously challenged by a non-minimal state intent on governing, technical violations of the law would presumably be welcome. Indeed, they may be codified in state-of-emergency provisions.
Of course, we are not any close to such a situation, but perhaps it could be argued that the same reasoning could apply mutatis mutandis to an intermediate situation where a much “less minimal” state threatened a “more minimal” one. The difference between the “less minimal” and the “more minimal” state would have to be obvious and significant for liberty. It would be preposterous to believe that Donald Trump ever represented such a “more minimal” state.
In a more standard approach, Gordon Tullock wrote in his Appendix to The Calculus of Consent (James Buchanan had his own Appendix too):
The State should have enough power to “keep the peace” but not enough to provide temptation to ambitious men. The State should never be given enough power to prevent genuinely popular uprisings against it.
This looks like a useful principle although we need an understanding of what a “genuinely popular uprising” would be. We can safely assume that Tullock had in view an uprising related to the protection of unanimous consent, not a brawl on whether an election was won with 51% or lost with 49% among two Leviathan-loving parties. So Trump could not invoke any such Tullockian principle to justify his “absolute immunity” in his attempts to reverse the 2020 election.
Note that I am not discussing constitutional law as it is, although the Wall Street Journal does suggest that the Constitution did not condone, and was never seen as condoning, such an absolute immunity of the president to criminal prosecution (“Trump Seeks to Have Federal Election-Interference Case Dismissed,” October 5, 2013). I am instead studying rules of constitutional political economy that would be most likely to stop Leviathan at least in some irreversible step.
Another principle should not be forgotten—as was tragically illustrated by the French Revolution and as radical libertarians are perhaps tempted to ignore: the continuity of the rule of law. The ultimate reason why you can rest nearly totally assured that the government will not arrest you and keep you secretly locked up (or worse) is the uninterrupted application of the rule of law. Once the rule of law is broken and seen to be broken, you can have no reasonable certainty of its capacity to protect you, and it could take decades or more to restore it. This incidentally provides an argument against the multiplication of laws and regulations, a process that is necessarily accompanied by an increase in the probability of a crash of the rule of law; as the laws approach 100% coverage of everybody’s actions, the probability that the rule of law will be unenforceable approaches 1.
