US and Canada Impose Reciprocal Tariffs After Trade Talks Collapse
Tariffs Without Consent Are Taxes Without Right
When an executive can, at a stroke, burden the trade of millions with a 50 percent duty, the question is not whether the negotiation was shrewd, but whether such power was ever justly entrusted to him at all.
Negotiations between the United States and Canada, I am told, have lately broken down, and the executive of the former has thereupon imposed a 50 percent tariff upon its northern neighbour, to which the Canadian prime minister has answered with matching duties in return. The language of a “trade war” is already abroad. I confess I am less moved by the noise of that phrase than by the quieter facts that lie beneath it: a single will, acting after failed talks, can raise by one half the legal burden on a vast commerce, and do so, it seems, without new deliberation by the people’s representatives. This, not the sharpness of the rate, is the hinge of the matter.
When I sought, in my Second Treatise of Government, to define political power, I confined it to the making of laws with penalties only for the public good, and only by authority derived from the consent of the governed. Power so limited is held on trust. It is not an estate that rulers own, but a fiduciary charge for the preservation of every subject’s property, taking that word in its large sense to include his life, liberty, and estate. Whether the question be speech, religion, or, as here, trade and the fruits of industry exchanged across a border, the same rule applies: if free and equal men could not reasonably assent to such a power for their protection, it is not rightful government but usurpation under colour of law.
Tariffs, by their nature, touch property very directly. They raise the price at which men may lawfully import goods; they narrow the field within which a farmer, a merchant, or a craftsman may dispose of the work of his hands; they tilt the scales in favour of some trades and against others. To say this is not to declare all tariffs unlawful; a people may, by their legislative, lay imposts for revenue or even for the shaping of commerce, if this truly serves the common good. But because such measures burden some more than others, and may easily be abused to serve particular interests, they stand in need of the clearest justification, and of forms of making and judging that the affected can recognise as their own.
Here the facts as reported are notably thin. We are told that a trade representative of the United States has laid out what his side offered before talks failed; that the executive, on that failure, imposed a 50 percent tariff; and that the Canadian prime minister has promised to “match Washington’s” move with retaliatory duties. We are not told by what law the executive claims this authority, what part the legislative has played, or what manner of consultation, if any, has been had with those whose livelihoods depend on this commerce. Yet precisely because those details are wanting, I am compelled to return to first principles: the burden of proof lies always on power, never on liberty.
If an executive may, upon his own judgement that a negotiation has crumbled, so alter the terms of trade, then, unless his commission be strictly bounded and frequently answerable to the legislative, he is dangerously near to being a judge in his own case. He decides that another nation has not treated his people fairly; he decides the remedy; he inflicts the penalty on his own subjects in higher prices and lost markets; and he answers, at least in the moment, to no impartial judge. This is the very pattern that led me, in that same Treatise, to prefer even the inconveniences of the state of nature to any settled dominion of arbitrary power. Known standing rules, made by a representative legislative and interpreted by independent judges, are the people’s proper security here, not the solitary prudence of any single man.
Some will say, and with a colour of reason, that prerogative must be allowed in matters of trade; that emergencies arise; that foreign counterparts will exploit any want of swift resolution in the executive. I have elsewhere granted that there is such a thing as prerogative, a power to act for the public good without, and sometimes even against, the letter of the law, where the law cannot foresee every circumstance. But that power, I insisted, remains always revocable, and is justified only so long as the public manifestly benefits. A 50 percent tariff suddenly imposed, especially when followed by retaliation in kind, is not self-evidently such a benefit. At a minimum, it demands open accounting to the legislative and to the people whose property it places at hazard.
Nor is the retaliating power exempt from this scrutiny. That Canada’s prime minister answers duty with duty may render his measures a species of self-defence in the society of states; it does not of itself show that the Canadians subject to these counter-tariffs have consented to bear their burdens, or that there were no less harmful means to secure their interests. The law of nature, which is but reason, binds rulers on both sides of a frontier alike: no one ought to harm another in his life, liberty, or possessions, save where necessity or justice plainly requires it. In a single act, not yet part of a long train of abuses, I would counsel patience rather than revolt; yet if executives learn, by our silence, that they may tax by decree under the name of tariffs, we shall have taught them a very dangerous lesson indeed.
The uncertainty that most troubles me is how far, in these particular nations, their executives truly stand under the control of their legislatives in trade, for on that relation much of my judgement must finally rest.
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — Government by consent and majority decision, with the legislative supreme but itself bound: a fiduciary power, held on trust, forfeited by breach.
- Second Treatise of Government — Prerogative as revocable emergency discretion — legitimate exactly as long as the public visibly benefits and no longer.