Legal Commentary

Perhaps I mean "economic theories of citizenship?" No matter, while I realize that I promised another installment of my online education series, I thought I'd take a brief break and try to see if we can find a way to connect current legal theory and constitutional history.

Here's the situation. I'm working on a paper that's vaguely connected to the book manuscript I'm finishing up. The connection is more vague than not, I should actually be reading a book I need to engage in the manuscript, but this is by way of being a study break. (And I have read all but one chapter in the book so far today!)

Anyway, the paper looks at a series of related legal events in the 1850s, and uses them to trace out multiple discourses of state citizenship. One of the sources for the paper is a state supreme court opinion upholding a lower court decision to dismiss a claim against a municipality for damages.  The plaintiff sued, claiming that the city failed to properly protect him, his family, and his home from a mob. The state courts all ruled against him, arguing that an earlier decision made it clear that no such cause of action existed.

That's all well and good. But what struck me as I was reading the opinion today, was one aspect of the analysis offered by both the plaintiff and the court. Each, it seemed to me, relied on what I can only call economic theories to define the relationship between the citizen and the local government.

The two arguments were, however, different. The plaintiff's argument was that he paid property taxes (quite alot, one imagines, he was the richest man in town). In exchange for allowing the local government to take part of his property in taxes every year, he said, he was entitled to have the government protect him and his family from harm and that included protecting him from mobs.  The way the argument is set out in the summary, it sounds like a contract claim:  The plaintiff paid taxes and was promised specific protections in exchange. The city failed to provide the protections, so the plaintiff sued to recover damages from that breach.

(Note that while this looks like a theory of citizenship based on a contract claim, it's not particularly Lockean--this is not a compact or contract between citizens, this is a contract between the individual citizen and the government.)

The court, while rejecting that argument, offers an alternative, but equally economic theory of the relationship between citizen and government. It is true, the court admitted, that people in a polity pay taxes in the expectation of getting protection. But the promise is not so direct as the plaintiff claimed. Rather, the citizen is paying the city to minimize risk of harm. But the citizen must realize that in making decisions about how best to minimize risk, the city has to take all the people in the city into account. To put it another way, the court effectively rejected the idea that taxes purchased a contract for personal protection (which is how it seemed to view the plaintiff's claim) and instead asserted that taxes purchased a share in a group insurance plan that guaranteed that risks would be reduced in general, but might not guarantee any particular individual claimant would be compensated for injury at some future date. The city had to retain the power to adjust risks so as to protect the greatest number of people from future harm, it could not promise each individual absolute protection from future harm.

(Perhaps characterizing the court's theory as analogous to a group insurance claim is misguided, if someone can think of a better metaphor I'd love to hear it.)

Anyway, here's where I'm hoping to generate some dialogue. I like to think I'm fairly up on modern theories of citizenship and citizenship studies, but I can't say I've ever seen economic arguments of this sort.  Nor can I recall seeing a similar argument in 19th century constitutional discourse in the US.  I did some quick research, and checked out a few articles, and I'm not finding anything that looks particularly like either of these arguments.

Yet surely that can't be right. I appreciate most of you are not legal or constitutional historians, so I'm willing to put aside the historical aspects of these arguments (though if anyone who has done work on the relevant time period wants to pipe up, that's great). But I have to believe that some enterprising law and economics person, or constitutional theorist of a more recent vintage has floated a theory of citizenship that looks something like one of these two arguments. And I'm sure if someone has written that article, one of you knows about it. And if you know about it, I'd love to hear what you have to say. Cites are great. Comments rejecting the ideas and pointing to learned analysis that demostrate the idiocy of these arguments are also welcome. I'm not endorsing either theory of citizenship. I'd just like to see if there are other similar arguments out there.