Law & Society Blog

In response to my discussion of the NYC subway search cases, Bruce Regal observed:

[T]he program ultimately is probably not about deterrence at all, but about making people feel better (irrationally perhaps, but no less actually) — helping them feel, subconsciously if nothing else, that the authorities are doing something, anything, about what is from a rational point of view (at least for local law enforcement authorities who have no control over international policy) the intractable problem of terrorism. Is helping people feel irrationally more protected a valid government purpose that is entitled to constitutional recognition?

Bruce is asking a critically important question about the nature of democracy. What exactly is the mandate of a government? Does it include the power to comfort the people with benevolent deception? Benevolent deception is different from passing symbolic laws, because symbolic laws don’t usually involve deception. In Bruce’s example, the government knows that the program will not have any real effect on safety. The sole motivation and the sole effect of the program is to create a perception of increased safety. Let’s assume (counterfactually) that there are no ulterior motives on the part of the proponents of the program, that is, no upcoming elections and no political capital to be gained; the goal is to make people feel safer and thus improve their welfare. What’s wrong with that? Here are a some thoughts:

• Democracy is based on the normative premise of self-government or autonomy. Autonomous decisions are rational and therefore free. Rationality and freedom require access to reliable information. Deception undermines freedom. Granting a government the powers to benevolent deception would thus be a performative contradiction on the part of the people.
• Benevolent deception is the first step onto a slippery slope. Some bright-line rules are necessary, and “don’t deceive the people” is one of the better per se rules in a democracy.
• Benevolent deception is detrimental to welfare in the long run. Knowing the truth about a threat and knowing about the fact that the government can’t really do much about it may prompt the people to pursue and demand entirely different policies.
• In questions of public policy, unlike in some individual settings, there will always be a long run. The absence of long run consequences has usually been the primary justification for benevolent deception. In other words, telling a benevolent lie on someone’s deathbed may well be justified. But that situation doesn’t exist in politics, neither factually nor normatively.

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