More on Justice

I have suggested that liberty and justice are in opposition, one to the other, but this opposition does not so much imply an either or choice of liberty over justice or justice over liberty. Implicit in my previous discussions of liberty are a number of axiomatic statements that I may as well make explicit, first and perhaps foremost, the notion that “one is never not free.” There is some impulse to deny that we, as sentient beings, possess “free will,” as exemplified by Sam Harris’ recent book on The Moral Landscape. On the assumption that our mental states, to include our sense of self and our sense of the self’s agency, have their causal origins within physical states of the brain, he writes, “The problem is that no account of causality leaves room for free will,” and that “our belief in free will arises from our moment-to-moment ignorance of specific prior causes.” We are, each of us, “like a phenomenological glockenspiel played by an unseen hand. From the perspective of your conscious mind, you are no more responsible for the next thing you think (and therefore do) than you are for the fact that you were born into this world.” There is much that could be said about this line of thinking, but I will restrain myself and simply say that free will may ultimately be an illusion, but it is the illusion that makes us human, and it is bottomless. One can get behind the causal factors influencing a certain behavioral pattern (e.g. hunger or depression) and design a variety of causal responses to it (e.g. cooking up a nice kale-goat cheese frittata to stem our appetite or taking Prozac to alter the brain chemistry that gives rise to depression), but the creation and use of those responses in and of itself reveals intentionality, the enactment of a desire to better shape one’s instrumental responses to the world.

Second, and perhaps more important, “our freedom is wholly contingent.” We are always “right here, right now,” and it is this evanescent present and our inescapable presence within it that defines both memory and desire, history and futurity. I am, perhaps, too fond of science fiction, in part because I am an optimist and believe the future will in many respects be better than the past, but also in part because it reveals its contingency so clearly. While we tend to focus on the perspicuity of past science fictions, their contingency is perhaps more to the point. None really have painted an accurate portrait of their future. All seem quaint in comparison to actual developments. I am never not free to act, to include the creation of a wholly imagined future, but I am free to act only “right here, right now,” and for most this contingency feels like a partly visible (partly invisible) constraint on our actions. I may well be hungry, but not have access to the food that would stem it. I may well be depressed, but may not have the access to the medical insurance that would supply me with Prozac. It is perhaps an evolutionary quirk that we feel the constraint more forcefully than our more unfettered acts -- that is to say, generally speaking our “free will” is revealed to us most forcefully when it is thwarted. I do not normally think about my breathing too often, except when it is difficult or impossible, and it suddenly becomes an imperative.

Finally, “the freedom to do what one wills is meaningless without the contingent power -- or to use a more benign term, the contingent capacity -- to actually do what one wills.” That is the crux of the matter. Regardless of the source of our intentionality (e.g. one can imagine a wholly biological and wholly causal origins for “hunger”) our felt sense of freedom emerges in our capacity to shape various instrumental responses to that intentionality (e.g. stopping at Burger King to grab a whopper instead of McDonald’s for a quarter pounder). We would feel less free, more constrained, if there were only one option available to free ourselves from our nagging appetites. We would feel captive if there were no options available. It is here, of course, that free will connects up with the will to power, the capacity to shape one’s world or one’s responses to the world to satisfy our intentionalities and free ourselves from our nagging desires. Unconstrained freedom is the pursuit of power over one’s contingent circumstances, which includes the pesky presence of others likewise in pursuit of power over their contingent circumstances. Within a world where the most powerful prevail, their free will is my serfdom to their will, to one degree or another. At the Machiavellian extreme, the price of freedom, as we all know, is perpetual vigilance, not only to jealously guard such capacity as we have, but also to suppress those who would usurp it.

At the primitive extreme, justice is the response, not to freedom, per se, but to the excesses and abuses of power with which and within which freedom reveals itself. It is all about “getting even,” in the various iterations of the phrase, and to follow up on Martha Nusssbaum’s suggestion that we attend to the classics, it is worth noting at least that, with the Illiad, Western literature begins with a nuanced examination of power and justice. In a contest of raw power, the preeminent king of the various Greek kingdoms, Agamemnon has acquired the daughter of Chryses, a priest of Apollo. The priest recognizes Agamemnon’s “right” to this daughter, not in any legal or moral sense, but simply because Agamemnon is the most powerful of the Greek kings. The priest brings to Agamemnon tribute, and asks that he free his daughter, and accept a ransom for her, in reverence to Apollo, the son of Zeus. Agamemnon refuses, and it is this refusal that sets in motion a cycle of retribution. Just why Agamemnon refuses is a matter for discussion, but his motives, the basic intentionalities that drive him, are recognizable, turning between possession and desire, honor and shame. At one point Agamemnon, tells the assembled Greeks, “I have set my heart on keeping her in my own house, for I love her better even than my own wife.” At another point, he asks Achilles in particular, “Are you to keep your own prize, while I sit tamely under my loss and give up the girl at your bidding?” Regardless, he refuses, and the priest, to exact retribution, prays to Apollo for help, who in turn rains a plague down on the Greeks, who in turn appease Apollo by returning the daughter to the priest. Agamemnon is displeased, and says to Achilles, “since Phoebus Apollo is taking Chrseis from me, I shall send her with my ship and my followers, but I shall come to your tent and take your own prize Briseis, that you may learn how much stronger I am than you are, and that another may fear to set himself up as equal or comparable to me.” Therein lies the crux of the matter. Agamemnon is free to take Briseis because he can. One could also say Agamemnon is bound to take Briseis because he must. He is the more powerful, and power inherently claims superiority over others, a superiority that must be affirmed and reaffirmed, until someone, more powerful yet, goes about “getting even.”

Retributive justice is not my principle concern, though I might point out that the basic motives (the primitive intentionalities) have not disappeared and are unlikely to do so any time soon in our evolutionary history. They continue to shape, albeit contingently, how we go about our lives, and we needn’t look far for examples. At its rawest, the violence of gang warfare reveals retributive justice turning on the same wheels of possession and desire, honor and shame, and its not a far stretch to imagine rival drug lords struggling for possession of territory not unlike Agamemnon and Achilles, the Greeks and the Trojans. I am, at least here, less concerned with Homer’s question, more concerned with Plato’s -- that is to say, what constitutes a just state? Retributive justice is important to that discussion, and our system of civil and criminal courts for the most part exact retributive justice, if not exactly an eye for an eye, the cash settlement and jail time nevertheless are compensatory for wrongs committed. Justice is served for the victim, one gets even, when the other “pays for” his criminal behavior at a rate commensurate to the crime. There are reasons, of course, for bringing retributive justice under the auspices of the state -- a broader concern for public safety, the freedom from fear that a well regulated police and criminal justice system brings to the citizenry -- but the principle reason is reason itself. Several of the Greeks attempted, each in their way, to reason with Agamemnon, presenting him with various alternatives, but he would have none of it. From a position of power, he need not listen to reason. He need not consider, much less accept, alternatives to his threatened appropriation of Achilles’ prize, Briseis, and lest his position of power be questioned or qualified, he is bound to do as he threatened and take Achilles’ prize as his own. The result, if not outright internecine violence, has much the same result, and Achilles’ is memorialized as the first “passive aggressive,” stewing in his anger to the great detriment of the Greeks as a whole. The demand for “reason,” backed by the coercive power of the state, adjudicated by an impartial spectator, would not have made for a good story, but it would have made for a resolution of a qualitatively different sort.

It is worth noting that, at issue, is a distribution and redistribution of property. The interest in the women may well be sexual, but it is not romantic. Though spoken in anger, Achilles looking to the distribution of the spoils, to include the women, says to Agamemnon, “you forget this, and threaten to rob me of the prize for which I have toiled … Never when the Achaeans sack any rich city of the Trojans do I receive so good a prize as you do, though it is my hands that do the better part of the fighting. When the sharing comes, your share is far the largest, and I, forsooth, must go back to my ships, take what I can get and be thankful, when my labor of fighting is done … It will be much better for me to return home with my ships, for I will not stay here dishonored to gather gold and substance for you.” While the people of the sacked cities of Troy might feel the need for retributive justice consequent to the appropriation of their gold and women, Achilles’ “right” to the property is two-fold. On the one hand, it is the right consequent to power. He has, in the full exercise of his superiority, labored to seize it and he has a right to his share. On the other hand, it is the right consequent to equity. Insofar as Achilles is a member of a collective, the Greek’s, his share must be equitable. It is a question of equal pay for equal work, and while Achilles’ was willing to accept some inequality, inequity, in the distribution of the spoils -- pay tribute to Agamemnon’s position among the Greeks -- the threatened seizure of Briseis was the proverbial last straw. His sense of justice was offended.

For the moment, I am more concerned with what has come to be called redistributive justice, getting and keeping things more or less even in an economic sense. Robert Reich is perhaps the most audible contemporary proponent of redistributive justice. He writes, with some alarm, that “income in America is now more concentrated in fewer hands than it’s been in 80 years. Almost a quarter of total income generated in the United States is going to the top 1 percent of Americans.” To his credit, in calling for a redistribution of wealth through various state sponsored actions, Reich is purely pragmatic in the American grain. The current distribution of wealth and the policy decisions leading to the wide disparities, in his view, simply do not work well for the state as a whole. As Reich himself put it, “I could have grounded my argument in morality: It is simply unfair for a handful of Americans to take home such a large share of total income when so many others are struggling to make ends meet,” but as he goes on to point out, “I have chosen instead to base my argument on the tangible [economic and political] threats that such inequality poses to everyone -- including even the wealthiest and most influential among us.” While Reich would not perhaps put it so bluntly, on the economic side, while sacking the cities of Troy, there is only so much that the Greeks can take away. Within the modern economy, while perpetuating the on-going assault on the middle class, there is only so much that the richest 1 percent can take away without leaving the cities of America in ruins. On the political side, we come full circle. Achilles’ response to the injustice perpetrated by Agamemnon was anger, and the Illiad itself is the chronicle of “the anger of Achilles,” an anger that “brought countless ills upon the Achaeans.” Anger is the antonym of reason, and Reich, among many others, has noted that we are descending into a politics of anger, a moral outrage at the growing inequities that is, no less than Achilles, misplaced, misdirected, and likely to bring countless ills upon Americans. The sense of outraged justice is more in evidence Harold Meyerson’s recent editorial. He writes, “the banks that are repossessing millions of home with a speed that suggests they’re double parked are the same banks that made billions by swapping paper on millions of homes purchased with mortgages that made no sense.” Meanwhile, “as events would have it, pay at Wall Street’s biggest banks is headed for another record high this year, the Wall Street Journal reports. Pay and benefits at the 35 largest firms will rise an estimated 4 percent over last year, to $444 billion.” In the end, “inquisitive minds might want to know how the big banks -- and bankers -- are getting richer while the underlying economy they serve isn’t.”

There is, or so I am suggesting, a fundamental sense of justice predicated on things being more or less equal, and the growing income disparity, the growing concentration of wealth in the hands of a few, begs the question, what’s wrong with this picture? Of course, one response could well be, not a damn thing! Achilles wasn’t serving the sacked cities of troy, and no one really believes the big banks serve the underlying economy. As a local editorial put it, responding to the same Wall Street Journal article, “the wizards of Wall Street insist that they have a pay fortunes to keep top talent. There’s truth in that. Wall Street is about making money, after all. That’s the only reason to be there. Pay cuts can cause the roaches to scatter to fatter feeding grounds in, say, hedge funds.” Despite the attitude, there is a deep cynicism and despair in such a response, resigned to live, if one is not among the fortune few, with anger and helplessness as one waits for the world to change. Meanwhile, it doesn’t appear that it will. As the same editorial continues, “it does not appear that the Great Recession has made much of an impression on the culture of the Street. All it has done is make a whole lot of other people a whole lot poorer.” There’s truth in that as well, but few really believe that the growing income disparity has much if anything to do with “talent.” Few really believe that their purchase on reality is wrong or simply stupid, that they deserve the abuses of power because they are inadequate and inferior -- and if one or another admits to being mistaken and deserving of misfortune, it is not because they feel themselves to be inferior, rather it is because they share equally in “being human,” mistakes and misfortune a fate we all share alike even though, perhaps, the consequences are disproportionate. As it becomes increasingly apparent, however, that the rich are getting richer, not because they are more talented, but because they are better positioned, in one way or another, to exploit others, the outraged sense that we should, if only we could, “get even” erupts in the misplaced vituperation that has spread across the political spectrum the last few years. Our all too human need for retributive justice for the distributive injustice erupts haplessly onto the op-ed pages and the blogs. If it has any effect at all, given that this is an election season, it will perhaps result in candidates, not one of whom is likely to make the substantive change their rhetoric implies, most of whom will allow the already entrenched further retrenchment.

There is, or so I am also suggesting, an “organizational” component to justice (or, for that matter injustice). An “organization,” however it might be conceived, has the freedom to act, presumably on behalf of justice, getting and keeping things more or less even, and individuals as individuals are subject to its coercive power. Here it might be worthwhile to pause for a triad of sidebar notes. First, of course, intentionalities, ends, are important. An organization is organized, so to speak, to satisfy certain ends, not others, and there is no reason an “organization,” as such, need necessarily be organized to administer justice. Indeed, most are not. Second, for those that are, there need not necessarily be anything remotely pragmatic in the administration of justice itself. There are, for example, few reasons for the maintenance of the death penalty. It does not serve a purpose beyond itself, or at any rate does not serve those purposes well. It does not deter crime, except perhaps among those very unlikely to commit the crime in the first place. It is not “cost effective,” insofar as the cost of execution most often far exceeds the cost of life-time incarceration. The death penalty, rather, as the most extreme form of state administered retributive justice, rather, serves other human needs that need not justify themselves beyond itself. Third, finally, in order to achieve their ends, to borrow a phrase from Hayek, an organization “must create power -- power over men wielded by other men.“ To exact the death penalty, an organization must have sufficient coercive power to take the life of another. To exact any form of redistributive justice, an organization must have sufficient coercive power to appropriate the resources of one for redistribution to another.

There are, perhaps, several strands of thought that need to be teased out in the preceding paragraph, not least is the notion of an organization. I have hesitated in calling I a “state” or a “government” in part to emphasize the pragmatic purpose, the instrumentality of a “organization” to a set of ends, none of which need necessarily be concerned with “justice.” The organization may well have as a purpose the exploitation of certain commodities in order to “make a profit.” When thinking of the large, modern corporate structures, it seems even a bit odd to suggest that they be organized for any purpose other than “making a profit,” though often enough the corporate public relations would suggest their concern for those damaged in that pursuit -- e.g. BP’s recent advertisements expressing their concern for and willingness to make retribution for the damaged lives along the gulf coast. That, however, is not their primary purpose, their governing intentionality, and it is not surprising perhaps to learn that they have not followed through on the retributions with much felicity. It is also important to remember as well that the ends, the governing intentionalities, most certainly do justify the means instrumental to their satisfaction -- that is, they provide a wholly rational justification for the means selected, a point of adjudication between competing ends relative to ancillary criteria like “efficiency,” and thereby an alignment of means to ends. There is some slippage here, and to justify, to align the means with the ends, has little or nothing to do with justice, per se, nor does it necessarily mean that ethical or moral stricture will be a criteria against which those means are adjudicated. It does not, in other words, particularly surprise us that BP, along with Halliburton, was at least in part complicitous in the oil spill. Although “legality” and “regulatory compliance” may be criteria against which the means to profit might be adjudicated, one suspects that they are so only to the extent that potential retribution makes obedience to regulatory restrictions more “efficient” or more “cost effective.” This is “risk management” and has little to do with justice, per se.

The state is not unlike any other organization, and can be organized for any number of purposes, none of which are concerned with justice. Here’s the difficulty -- most states, including our own, are organized relative to ends which have little or nothing to do with either retributive or redistributive justice. Increasingly, and I am not the first to make this suggestion, the major Western powers are becoming more and more shareholder states, and government, increasingly, has taken on the role as the protectorate and guarantor of the modern global corporation. Although it has the edge of paranoia, Chomsky writes, for example, that “there are many factors driving global society towards a low-wage, low-growth, high-profit future, with increasing polarization and social disintegration.” Not least is the “fading of meaningful democratic processes as decision making is vested in private institutions and the quasi-governmental structures that are coalescing around them, what the Financial Times calls a ’defacto world government’ that operates in secret and without accountability.”

The recent banking crises illustrates the point rather well. First, the progressive de-regulation of the banking industry over the last three decades (a bi-partisan effort if one counts the contribution of Bill Clinton) amounted to the abdication of the government’s coercive power, which in turn had rather predictable results. They were progressively freed from the regulatory constraints that limited the available means to the end of profit within the industry, but in doing so also mitigated risk for those outside and served by the industry. The financial institutions were free to engage, albeit creatively, in riskier and riskier behavior. The purpose, the governing intentionality, of the financial institutions was to make money, and so long as they were successful in aligning the means to that end, so long as they paid dividends to the shareholders, their behavior was justifiable relative to those ends. Few complain as the bubble expands. Second, however, when the bubble burst, as was perhaps inevitable, the financial industry, too big and too important to the national economy to fail, did not turn to the shareholders for the necessary capital to survive, but to their guarantors, the government. There are, of course, hundreds of reasons why the corporate giants did not turn to those form whom the entity was ostensibly organized to serve and had benefited some, if not the most, from the excesses of risk. The corporations do not have the sort of coercive power to “take back” money from the shareholders (and it seems a little odd to suggest even that they might do so). Moreover, there is some validity to the argument that the financial industries were too big to fail, insofar as it’s difficult in one way to differentiate between taxpayers and shareholders. Those who leveraged outsized home values, if they were fortunate enough to sell before the bubble burst, benefited no less than the shareholders, and perhaps were share-holders. My own retirement fund, through TIAA-CREF, was invested in many of those same organizations at one or two removes. So, third, using its coercive power to exact dollars from the taxpayer/shareholder, the government intervened. While I have little doubt tha things would be much worse right now for Joe and Mary Paycheck had the state not intervened -- in part because most are dependent upon the mortgage industry for housing -- the result had little to do with justice. Those who put us into this situation continue to draw outsized salaries and, so far at least, are largely protected from, free from, the sorts of civil litigation that would exact retributive justice. They are also largely protected, free from, any efforts at redistributive justice. Foreclosures, for example, continue apace. I am sure the banks will not benefit to the same degree that they would have benefited had all paid off the inflated mortgages, they nevertheless seize full possession of a property, have full benefit not only of the full resale value of the home, but the years of accumulated interest and principle payments. In the meantime, the so-called home owners, duped and exploited, are just out of luck.

I am suggesting, of course, that we -- our government -- has aligned itself with corporate ends, what Jefferson called the “aristocracy of the monied corporation.” Corporate ends have little to do with justice, per se, much to do with the concentration of wealth, and the power that comes away with wealth, into as few hands as possible. In pursuit of those ends, the corporation itself is inherently monopolistic -- that is to say, totalitarian in their internal organization and imperialistic in their external orientation. While I think it true that the monopolistic practices of the monied corporation can work well within a formal electoral democracy, electoral politics have become something of an amusement not unlike the World Wrestling Association. If not exactly a choreographed sham -- there do seem to be real winners and real losers in the electoral process -- then certainly an event brought to you by one or another corporate sponsors. The recent Supreme Court decision of Citizens United has reinforced the trend, allowing considerable sums of corporate and union dollars to sponsor one candidate or another, often channeled through various non-profits that are allowed to hide donors, a good rhetorical strategy given the negative character of the sponsorship revealed in their ads. In answering the question why the worst get on top, Hayek has made a number of observations that are useful to an understanding of the recent mid-term elections, identifying negative selection criteria. One, of course, is an anti-elitism, an appeal to the “lowest common denominator that unites the largest number of people,” the symbols and slogans with the broadest emotional appeal, which is supported by what seems to be “almost a law of human nature.” Though we perpetually bemoan it, we also perpetually engage in negative campaigning based, no doubt, on the premise that “it is easier for people to agree on a negative program -- on the hatred of an enemy, [those presumably against the visceral values evoked by the symbols and slogans] -- than on any positive task.” With that in mind, of course, it is clear enough that political rhetoric is based on the presumption that one will be able to “obtain the support of all the docile and gullible, who have no strong convictions of their own but are prepared to accept a ready-made system of values if it is only drummed into their ears sufficiently loudly and frequently.” Insofar as both wrestlers in the political arena are dependent upon their sponsorship, insofar as both wrestlers come away from the match as grotesquely distorted human beings, in the end, who wins and who loses may not matter quite as much as the rhetoric would imply, so long as the concentration of corporate power is allowed to continue apace.

In this regard, one part of me wants to be amused by the Tea Party, the populist anger it represents, and its appropriation by the Republican party, which is, in the end, anything but populist in its ends. There is an unabashedly “lowest common denominator” feel to Republican rhetoric, but they have been much more masterful in the appropriation of core American values than have the Democrats. As Michael Tomasky puts it in a recent review article, “in American politics, Republicans routinely speak in broad themes and tend to blur the details.” The Republicans “speak constantly of liberty and freedom and couch practically all their initiatives -- tax cuts, deregulation, and so forth -- within these large categories.” The Democrats on the other hand “typically ignore broad themes and focus on details.” They talk “more about specific programs and policies and steer clear of big themes.” Tomasky points out, “there is a reason for this: Republican themes like liberty, are popular, while Republican policies often are not. On the other hand, Democratic themes, [like justice], are less popular, while many specific Democratic programs -- social security, medicare -- have majority support.”

As a result, there has been an odd bifurcation in the American politics for some time, a sort of duplicity at the core. Democratic programs are popular, if they are understood, because they tend to benefit the wider populace, but to understand those policies requires an attentiveness to arcane detail that is easily misconstrued by those hostile to the policies and dismissed by the broader populace unwilling or unable to dig into the discussion. The democrats have become the party of policy wonks, and they have not tied their policies to “larger beliefs,” and have, as Tomasky goes on to say, “tried to hide those beliefs, or change the conversation when the subject arose” in part because there may well be no simple -- that is, simplistic -- belief systems within which to couch their arguments. The views and tastes of the wonks are more finely differentiated, and consequently they are, to use Hayek’s phrase, less likely “to agree on a particular hierarchy of values,” and the values are irrelevant in any case, because they can agree on the particular benefit of particular policies to a broad range of people. Banking regulation is not intended to benefit the banking industry, nor those few who stand to profit most from the banking industry. It is intended to benefit those who bank with the banks, but those who benefit from regulation have neither the detailed education nor the willingness to exercise the focused intelligence necessary to understand banking policy, much less how they might benefit.

It is deeply ironic, of course, that the conservative appropriation of core American values, particularly “liberty” -- the value of most concern to conservative thinkers like Hayek -- are being used to create a populist base for a party that is anything but populist in program. If the Democrats must hide their ends, the sorts of redistributive justice that form the core justification for their action, the Republicans on the other hand “have been able to present their philosophy as truly American,” and in most respects their public rhetoric is truly American. Americans are for the most part egalitarian and distrustful of elites, particularly intellectual elites, and distrust arguments that are not obvious on the face of it, and it is obvious on the face of it that “regulation” is a curtailment of “liberty,” but it is not always obvious on the face of it that “deregulation” will not lead to greater liberty, at least not greater liberty for all. It will, however, eviscerate the government’s ability to control the behavior of those whole acts have very broad impact on the American populace and likewise eviscerate the basis for exacting retributive justice against those who behave badly, those who leave behind a wide swath of damage across the American landscape, but who have, technically, done nothing “wrong” -- that is to say, done nothing that is overtly or explicitly prohibited. It is obvious on the face of it that “taxes” are an affront to one’s “right to property,” but it is not always obvious on the face of it that “tax cuts” will not necessarily provide greater income to the vast majority of Americans, at least not in amounts that would make a difference. Eliminating social security and the progressive income tax will make a difference in American’s take home pay, and will provide more disposable income predisposed to find its ways into the coffers of various international corporate entities, but it is unlikely to compensate for the loss of medical and retirement benefits. The least among us will suffer the most, and those at the lowest levels of income, those who have the least ability to save, when they are no longer able to eke out a living, will be consigned in the last years of their life to extreme debility and poverty. The elimination of social security and the progressive income tax are eviscerating the government’s ability to effectuate any form of redistributive justice and setting the stage for the continued corporate colonization across the country.

I am suggesting that government is our last best hope for “justice,” and theoretically at least, there is little reason why the state should not, “if it is to achieve important ends, be run by decent people for the good of the community as a whole,” presumably a “good” equitably distributed among the “community as a whole.” The first difficulty, of course, is this: “liberty,” on the one hand, is not an end unto itself, but the fundamental condition within which one acts toward certain ends, certain governing intentionalities. Both Hayek and Rawls are correct in assigning it primacy. Although certain ends, certain intentionalities, are given importance in our biological nature, as human beings, we choose others, and it is no less necessary to maintain “liberty” in our ability to align our instrumental acts with the desired ends, whether given or chosen. If the Republicans have the advantage, it is this felt primacy of “liberty,” relegating “individual justice” to a secondary and “social justice” to a tertiary, organizational concern. Organizations, as such, need not necessarily have “justice” or the equitable good of the whole community as their governing end, and as I have suggested, most, including the corporate structures that largely “governs” the day to day life of people across the globe, do not. Government, as a specific organization, should have “justice” as its end, its governing intentionality.

Having said this, however, we are brought up against the second difficulty: just as absolute “liberty,” unchecked by mitigating social justice, leads to a winner take all tyranny of the individual over the collective -- just as absolute “liberty” of competing organizations, unchecked by mitigating social justice, leads to a winner take all tyranny of the one over the others -- absolute “justice,” no less than absolute freedom, undoes itself. The loose thread that starts the unraveling is this: just what is “good for the community as a whole?” Any answer to this question, as Rawls and others have noted, is at once comprehensive, but limiting. To use an observation of Hayek’s again to illustrate, if we have a clear and compelling answer to the question, if we know or believe we know unequivocally that which is “good for” the mass of mankind, ends “independent of and superior to those of the individuals,” and if the community or state is organized and justified rationally against those ends, then of course “only those individuals who work for the same ends can be regarded as members of the community.” It is comprehensive insofar as “a person is respected only as a member of the group, that is, only if and insofar as he works for the recognized common ends,” but it is likewise limited insofar as there are many answers to the question, most of which have been, or take on, the characteristics of a “religion.” Without equivocating over just which God one might mean, whether Jove or Jehovah, once one admits, for example, that “the proper end of mankind is to serve God and advance his kingdom across the earth,” it is not merely a matter of “having faith,” but of enacting one’s faith, an enactment often predicated on the assumption of divine justice, that my God is a just God. The Book of Job, for example, is a case study in divine justice. Job was selected for his affliction, not because he in any way deserved them -- indeed he was without sin -- but because he was the most faithful of the faithful, and it is to test his unwavering faith, against which Satan strikes his wager with God, and for which Job is rewarded in the end, despite some considerable collateral damage along the way in the loss of his original children.

I should point out that state and social organizations predicated on some concept of absolute justice -- if not national socialism, then communism in its idealized, if not its realized, versions -- are no less comprehensive, and just as limiting. As Hayek has noted, for example, “the intensity of the moral emotions behind a movement like that of National Socialism or communism can probably be compared only to those of the great religious movements of history,” and within all religious movements, many things follow, not least the subordination of the individual, as an individual, to the greater good -- the relegation of the individual, as individual, to an instrumental role whose life and livelihood must be justified to and is justified by the predetermined ends -- as Hayek notes, “most of those features of totalitarian regimes which horrify us follow of necessity.” Those features have been well discussed, and most do follow, as Hayek suggests, from the suppression of the individual, as an individual, and the relegation of free agency and its sustaining power upward to larger and larger organizations in the hands of fewer and fewer men. It justifies a form of terror internal to the group in the suppression of the individual, and for the faithful, it justifies terror external to the group in the protection and advancement of its aims. This seems to be true, whether we are dealing with the state religions that dominated the conflicts of the 20th century, or the religions proper that have come to re-dominate the conflicts of the 21st, and the collateral damage left in the wake of those conflicts really needs little more discussion.

I will not reiterate the whole of Hayek’s or other’s arguments against theo-centric or state-centric notions of absolute justice, except to say that any collectivist ethic, consecrated within a comprehensive doctrine, eventually makes a bargain with the devil. While a collectivist ethic within a comprehensive doctrine seems the antithesis of individual freedom -- that is, it “does not leave the individual conscience free to apply its own rules” -- but the collectivist entity itself, the organization, as an organization, must be free from restrictions that inhibit its pursuit of “the good of the whole,” and it must be free to do what is necessary in order to achieve “the good of the whole,” indeed “there is literally nothing which the consistent collectivist must not be prepared to do if it serves ‘the good of the whole,’ because ‘the good of the whole’ is to him the only criterion of what ought to be done.” I mention the Book of Job, however, to suggest, perhaps over subtly, that a prescriptive faith the so-called free market is no less comprehensive, and no less limiting than other faiths. There is a congruence between the invisible hand of God and the invisible hand of the Market, both of which dispense an arbitrary form of “justice,” and both of which are for the most part unfathomable. That Weber and others have noted the congruence, and that it continues to play itself out in the Republican party, with its restrictive social legislation coupled with its laissez faire economic legislation. Conversely, of course, it is opposed by the Democratic party, with its regulatory economic legislation coupled with its laissez faire social legislation.

If the Republican party is in ascendancy within the United States, and it certainly appears to be, it is perhaps indicative of a shift in sovereignty. The free market is free for whom? We as consumers are free to consume, and we do so with some abandon within the limits of diminishing capacity, as the corporate engines that provide for consumption grow larger, more powerful, and ultimately more coercive of the various governments where they do business. It is perhaps worth pointing out that, while we still feel the romantic urge to worship great men and women, the concentrated power of an organization is nothing personal. Individuals within an organization wield power, but it is positional power. They do so within the system constraints of the organization itself. It is perhaps not surprising that those at or near the top of an organization are most attuned to the traditional Republican need for freedom, internally the freedom to “manage” the organization making contingent adjustments of means in pursuit of its given ends, and externally the freedom to extend the encompassing reach of the organization for the greater good of a greater whole. It is perhaps not surprising either that those at or near the bottom of the organization are most attuned to the traditional Democratic concern for justice, particularly redistributive justice. The leveling intent and effect of labor unions, for example, not only draw down corporate profits in the redistribution of wealth in the form of personnel costs, but in doing so they also inhibit, put real constraints on institutional -- that is to say, corporate -- freedom. I probably don’t need to point out that labor unions are not examples of moral probity. They have adopted means no less limiting of the individual conscience in the contingent adjustment of their means in pursuit of a greater good for a greater whole. In either case, I am not sure it much matters whether one chooses the Republican yin to the Democratic yang, except that the one serves to be a counter-balance to the other, so that neither has the opportunity to fully govern, to fully align means and ends within a comprehensive doctrine. If I tend to favor the latter, it is, at the instant, less an ideological concern, more a corrective concern to restore a balance between liberty and justice if we have not already tipped too far.

More on Liberty

I want to explore a bit more the central paradox of liberty -- that is, “liberty must be systemically constrained to allow for liberty at all.” To make this point, there are several threads that must be teased out, not least the relationship between “liberty” and “power.” Though a fascinating discussion in its own right, here again, I don’t want to quibble too long over definitions. At a fundamental and colloquial level, to have “power” is to have the ability to what one wishes -- to have power over others is to have the ability to do what one wishes to or with others. The slipperiness of prepositions is important. It makes a difference whether we use our powers and do something to someone or we use them to do something with someone. Ultimately these distinctions have ethical implications, and so are not trivial. It makes a difference if we do something for someone or to someone. One can quickly get lost in these linguistic mazes, but for the moment our general sense of “power” is sufficient-- that is, one has power when one can do what one damn well pleases, regardless whether one is pleased by doing good or doing ill.

My immediate aim is to point out the deep, but asymmetrical connection between “liberty” and “power” -- one can have “liberty” or “freedom” in some formal sense, but not have the “power” to actually do what one pleases. Setting aside the adolescent, wish-fulfillment fantasy of “super-powers,” which serve well to teach us the converse lesson that reality is always a constraint, yet nevertheless illustrate that power is also bound up in another asymmetry -- the relative difference between what some can do and others cannot. My powers and your powers. To illustrate both, consider for example having the power to influence the outcome of an electoral campaign. What can I do? I can, of course, vote, and it is worth pointing out that I can do so because legal constraints on those with the big guns make it possible for me to do so. That was not always the case, as the history of women’s suffrage in the 19th century and civil rights legislation in the 20th century amply demonstrate. Having said that, beyond my one vote, I do not have much power to influence the outcome of a campaign. Up front, my vote is merely consent to one or another candidate who are chosen by others with considerably more influence. During the campaign, while I can choose my vote, I have severely limited ability to influence how others might vote. For that, one needs money and access to the media. In that regard, Robert Reich tells us that “hundreds of millions of secret dollars are pouring into congressional and state races in this election cycle,” and it is probably obvious that “hundreds of millions” will put a “message” before more people than the hundred or so dollars that I can comfortably spend. Nevertheless, “the Koch brothers (whose personal fortunes grew by $5 billion last year) appear to be behind some of it, Karl Rove has rounded up other multi-millionaires to fund right-wing candidates, the U.S. Chamber of Commerce is funneling corporate dollars from around the world into congressional races, and Rupert Murdoch is evidently spending heavily.” Whether or not one sees a conspiracy, it is clear enough that the David and Charles Koch, Karl Rove, and Rupert Murdoch have much more power to influence electoral results than I have, and as Reich put it, the purpose of the cash infusion is “not to help America’s stranded middle-class, working class, and poor. It’s to pad the nests of the rich, stop all reform, and deregulate big corporations and Wall Street -- already more powerful than since the late 19th century when the lackeys of robber barons literally deposited sacks of cash on the desks of friendly legislators.” Whether one agrees with Reich’s politics or not, it’s clear enough that money talks, bull shit walks, and mostly what I have to offer is the latter.

At issue, of course, is “free speech,” which in some fundamental ways isn’t “free,” and its involvement with “power,” particularly the sort of economic power represented by the likes of David and Charles Koch whose combined personal fortunes are exceeded only by those of Bill Gates and Warren Buffet. Although no one I think would argue that their speech does not have considerable sway, in part because they can put their money where their mouths are, but nevertheless, as individuals, the Kochs, the Gates, the Buffets and I all equally have “free speech.” They might drown me out, but they cannot shut me up, and I have “free speech” because the power of government to censor or otherwise limit speech has been severely constrained. It is patently obvious, but worth pointing out that “government,” per se, although always comprised of individuals, is not itself an individual. Government is, for lack of a better term, a “collectivist legal entity,” and as such it magnifies the power of individuals. George W. Bush was not a particularly compelling human being -- certainly not on the order of Ghandi or Mandela or even for that matter Reagan -- but as the principle executive agent of the U.S. government, he was nevertheless in a position of considerable power. Most of us know that position within a “collectivist legal entity,” whether government or corporate, confers a disproportionate power on an individual, and it was precisely this disproportionate power that the framers of the constitution wanted to limit. The actual first amendment constitutional constraint on government reads as follows: “congress shall make n law … abridging the freedom of speech, or of the press.” So long as the constitutional constraint is in place, and so long as those in positions of power abide by it, we the people -- that is, we as individuals outside the “collectivist legal entity” -- can speak our minds.

My “liberty” as an individual comes at the expense of the government’s “liberty” as a collectivist legal entity, and this principle is so deeply held as to be virtually invisible, but I should be clear. The first amendment of the constitution does not say “all people are free to speak their minds.” The first amendment specifically places a limitation on the power conferred upon Congress in the body of the constitution itself, the power to make and enforce laws, and this limitation stems from a fundamental mistrust of individuals in positions of power, and this mistrust extended beyond the halls of government. Reich encourages us to read Justice Stevens’ lengthy dissent to the Citizens United vs. the Federal Election Commission. In his dissenting opinion, Justice Stevens cites a letter from Thomas Jefferson to Tom Logan, on November 12th of 1816. “I hope,” Jefferson writes, that “we shall … crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” We have, or so I would suggest, long since lost the opportunity to crush the birth of corporate influence, and with the Citizens United decision, the Supreme Court may well have given away our last opportunity to protect individual liberty through constraints on the undue influence of people in positions of corporate power. Those who have put considerable money behind their speech. Our government may very well lose the challenge, the power struggle, and become what another framer envisioned as the primary purpose of government, “to protect the minority of the opulent against the majority.”

In this respect, I think the so-called Tea Party activists, who apparently stand behind the Citizens United decision, are emotionally correct, but intellectually corrupt (or perhaps more precisely, intellectually corrupted) in their distrust of “big government.” They would follow the argument to its reducto ad absurdum -- to free the people entirely from government one must likewise abolish the government entirely. The argument is neat and has the appealing virtue of simplicity, especially when it is coupled with heartland American virtues -- love of Jesus, hatred of taxes, jingoistic patriotism, and the like. The flaw in the argument is this: abolishing government does not abolish coercive power. It is a maxim not worth repeating, but power, coercive power, will always find a way, and in the absence of government, even in the absence of effective government, those ways are often primitive and malign. Not to put too fine a point on it, if people are absolutely free to live as they damn well please, it won’t be long before it pleases someone to say, “great! I choose to live by pointing a gun at you, appropriating your treasure, raping your daughters, and instilling a healthy fear in you, those subject to my violence, by leaving the corpses of those who oppose me in the public thoroughfares.“ Although it’s unlikely that we will descend to this level, at least not in the near future, one needn’t look far or hard to find examples. The narco-wars just south of the border and the malignant political processes throughout Africa are sufficient, I think, to make the point.

The liberty paradox really boils down to this -- I can be free to live the sort of life I value, only if I am free from the coercive power of others. Of course, no one in the so-called Tea Party wants to abolish government entirely, or at least I don‘t think they do. They simply want to be free from the coercive power of government itself, and few would blame them, particularly if the government is corrupt and corruptible. One wants to ask, however, free from which coercive power? It is one thing to be free from prior censorship, quite another to be free from taxes. It is one thing to be free from constraints on one’s ability “to keep and bear arms,” quite another to be free from regulatory constraints on the market place. Just exactly what do we want to be free from? Here is an example may help make the matter clear. The Koch fortune has helped found and continues to underwrite the activities of the non-governmental organization, Americans for Prosperity, which in turn has sponsored and provided various support functions to Tea Party rallies. I do believe this to be less a conspiracy, more a convergence of ideological interests between the Koch corporation and the Tea Party supporters. As Jane Mayer’s recent portrait for the New Yorker puts it, “the Kochs are longtime libertarians who believe in drastically lower personal and corporate taxes, minimal social services for the needy, and much less oversight of industry -- especially environmental regulation,” and as she goes on to point out, “these views dovetail with the brothers’ corporate interests.” That aside, Americans for Prosperity has, as one aspect of their stated mission, “cutting taxes and government spending in order to halt the encroachment of government into the economic lives of citizens by fighting proposed tax increases and pointing out evidence of fraud, waste and abuse.” Taxes in general? Government spending in general? As one example, most of us are dependent upon well maintained, tax-supported public roads. Although it is not at all difficult to find examples of genuinely bi-partisan, genuinely private-public collusion in “fraud, waste and abuse” in the creation of those thoroughfares, even in the great State of Utah, it doesn’t change the basic fact that most Chamber of Commerce members benefit greatly from the expenditures of tax dollars on public thoroughfares to and from their business. It strikes me that we need to be at least a wee bit cautious, lest we throw the baby out with the proverbial bathwater.

On the matter of regulation, nothing ends corruption, or what economists would call moral-hazard, quite as quickly as a declaration of its permissibility. Which regulations do we abolish? Few of us want to live in toxic environments, and I suspect the Kochs would have sufficient means to live in clean environments with well maintained roads regardless of their industrial activities, but they do stand to gain considerably from a declaration of the permissibility of polluting. As the Mayer article points out, “in a study released this spring, the University of Massachusetts at Amherst’s Political Economy Research Institute named Koch industries one of the top ten air polluters in the United States.” While one might suspect Greenpeace of bias in this regard, and Koch industries claimed their similar report “distorts the environmental record of our companies,” it nevertheless remains that “the Kochs vastly outdid ExxonMobil in giving money to organizations fighting legislation related to climate change, underwriting a huge network of foundations, think tanks, and political front groups.” While they have avoided direct involvement, their political front groups, including Americans for Prosperity, have provided a broad range of support to the so-called Tea-Party movement. “Indeed,” as Mayer points out, “the brothers have funded opposition campaigns against so many Obama Administration policies -- from health care reform to the economic-stimulus program -- that in political circles, their ideological network is known as the Kochtopus,” and “by giving money to ‘educate,’ fund, and organize Tea Party protesters, they have helped turn their private agenda into a mass movement,” a deeply cynical move. Koch industries supports deregulation and lower taxes -- supports freedom from government -- in order to be free to do, more and more, as they damn well please, and what pleases them, no doubt, is a greater and greater concentration of wealth, a greater and greater concentration of power, in their own hands. Little or nothing in their behavior, or corporate behavior generally, would suggest otherwise, and Tea Party members are enthusiastically supporting an agenda that stands to benefit them very little and portends to harm them, their children, and grandchildren a great deal.

Nevertheless, I can hear the Tea Party saying of their weekly pay check, “it’s my money, I earned it, and I have a right to keep it.” I suspect they would say of the Kochs that “it’s their money, they earned it, and they too have a right to keep it -- more power to them.“ All of which brings me to another thread that I should tease out -- the deep connection between “liberty” and “rights.” Most famously, perhaps, Jefferson writes that all men “are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the pursuit of Happiness.” The sentiment had their original, if I am not mistaken, in Locke’s Treatise on Government, where the concern was less the pursuit of happiness, per se, and more with the pursuit of property. The same triad of cumulative “rights” appears in the fifth amendment, where government is prohibited from depriving any person “of life, liberty, or property without due process of law.” It goes without saying that the pursuit of happiness and the pursuit of property are not exactly synonymous, but it also goes without saying that certain “properties” are fundamental to happiness -- food, for example, it being generally difficult to imagine a starving person as “happy,” with the exception of a few aesthetics. I will return to the “right to property” shortly, but at the instant I simply want to point out how peculiar it is when Jefferson goes on to contend that “to secure these rights, governments are instituted among men.” Really? From the beginning, through the present, governments of all sorts have taken the lives and curtailed the liberty of their subjects with some dispatch, and they have done so often, very often, simply to preserve the power of those in positions of power. Machiavelli was perhaps the first to formalize this observation in a treatise, but certainly not the first or the last to recognize it. Might, after all, does confer “rights.” If we set aside questions of ethics, setting aside questions of “right and wrong,” the statement, might makes right, simply suggests the tautology that one can only do what one can do, with the implicit recognition that those in positions of power can often do much more than those who are not. We cannot, of course, completely set aside ethical questions. The statement, might makes right, carries with it also the deeply ironic recognition that those in positions of power can, and often do, act in ways that offend a sense of right and wrong, our sense of fairness and justice.

For those patient with the foregoing paragraph, there are at least three entangled senses of “right” -- a “right” conferred by my power to do what I can do and to keep what I can keep, a “right” conferred by our ethical sensibilities, and a “right” conceived as an entitlement. The latter is perhaps most in question. My entitlement to life is secure only insofar as the power of others, those who would do me mayhem, is curtailed. My entitlement to liberty is secure only insofar as the power of others, those who confine me or compel me to tasks, is curtailed. My entitlement to property is secure only insofar as the power of others, those who would rob me, is curtailed. The same could be said of any other entitlement. Whether governments derive “just powers from the consent of the governed,” or unjust powers from the point of a gun, one’s “rights,” one’s entitlements, are typically secured by government. Indeed, if one follows through on the Jeffersonian line of thought, the security of our entitlements is the sole purpose of government, and it is the radical peculiarity of our government that it secures our entitlements, not only against the encroachment of others, but for the most part against its own encroachments.

There is a third strand that needs to be teased out, and it is the notion of obligation. I believe it was John Searle who suggested that rights, particularly those in the sense of entitlement, will always entail a corresponding obligation, and universal rights will entail universal obligations. Consider, again, my entitlement to “free speech.” My right to speak my mind freely, so long as it is a right extended equally to all, entails a corresponding obligation on the part of others to tolerate my blather, even if they’re not listening. Conversely, the others right to speak his mind freely, so long as it is a right extended equally to all, entails a corresponding obligation on my part to tolerate his blather, even if I have no intention of taking it heart or paying it any mind. The same might be said of worship. My freedom to worship as I choose entails an obligation of tolerance on others, just as their right to worship as they choose entails an obligation to tolerate me. This reciprocal obligation requires nothing more than tolerance, but it does require tolerance, and anyone who has listened to some benighted boor prattle on about his religion knows that tolerance comes in a limited supply, particularly among those who are in positions of power. The Socratic insistence upon truth, particularly the truth concerning the relationships between power and justice, tested the limits of Athenian tolerance, and serves now, as it did then, as a cautionary tale about the limits of free expression.

Having said that, not all rights are, so to speak, created equal, and it is perhaps a signal quality of Jefferson’s genius that, in his triad of inalienable rights, he listed the pursuit of happiness, not one’s purchase on (or of) property. Quoting Madison’s assertion that “in a just and free government the rights both of property and of persons ought to be effectually guarded,” our own Socratic gadfly, Noam Chomsky, split’s the hair into several strands:

In this case too it is useful to look at the doctrine more carefully. There are no rights of property, only rights to property: that is, rights of persons with property. Perhaps I have a right to my car, but my car has no rights. The right to property also differs fro others in that one person’s possession of property deprives another of that right: if I own my car, you do not; but in a just and free society my freedom of speech would not limit yours. The Madisonian principle, then, is that government must guard the rights of persons generally, but must provide special and additional guarantees for the rights of one class of persons, property owners.

Although he quibbles well against the subtle perversion of language -- the rights of property -- he nevertheless oversimplifies. It is not only a matter of who does, or does not, have a putative right to any particular automobile. I suspect Chomsky would be as miffed as the next guy if he came out to discover his parking space empty and his automobile appropriated to another’s purpose. Moreover, we can recognize universal property rights within a set of reciprocal “hands-off” obligations, insofar as we recognize the distinction maintained within the fifth amendment between public and private property. One is free to own private property, and do with it as one pleases, insofar as one is free from the government’s power to appropriate it. Moreover, as a universal right, I have an obligation to respect others’ rights to their property, just as, in return, they have an obligation to respect my rights to my property. The “right to” property, however, does not entail that one will actually have property, any more than a “right to” speech entails that one will actually have something intelligible to say. Chomsky may own a new Toyota Prius, and I might own an old Ford, and that might be a matter of invidious comparison between us, but fundamentally, with respect to freedom, to liberty, and the reciprocal rights and obligations entailed in property ownership, there is no difference between speech and property. Given the means, I am perfectly free to buy a Toyota too.

Madison was concerned with a “just” and “free” society, and there is the rub. It is, as I have argued in previous posts, questionable whether a government can both be free and be just, with perhaps a couple of notable exceptions, freedom of speech and freedom of religion being perhaps cases in point. Our notions of justice are deeply intertwined with our notions of equality, and it is worth pointing out that Jefferson’s phrase, “all men are created equal,” today at least, offends our sense of justice, though I have faith that Jefferson, were he writing the declaration today, he would have said “all people are created equal.” We have equal rights, not disproportionate rights, and it is an affront to our sense of justice when we discover that women, in general, still do not receive equal pay for equal work. It likewise offends our sense of justice when we discover that monies appropriated to public use -- our tax dollars -- have gone to benefit only a select few, as seems to have been the case recently in the outrage following the discovery that public bailout monies for the financial sector helped provide exorbitant bonuses for the executives of failing firms. Theoretically at least, when government violates our free possession of property, when government takes my money in taxes, that money should go to benefit all equally.

I’ll talk more about justice and equality in a later post, but suffice it to say that Chomsky has a point when he writes that “my freedom of speech would not limit yours,” and a sort of reciprocal equality is preserved to the degree that it can be maintained. I am not suggesting, of course, that all speech is equally attended, or that all speech has the same range. Beyond the inherent persuasiveness of one’s speech itself, any injustice in the attention given to speech or its broadcast range is contingent upon possession of property. One’s money, if one has enough, creates a heart felt attention to what one has to say. It would surprise no one, as the Times Eric Lipton reported last month that Mr. Boehner, potentially the Speaker of the House after the mid-term elections in November, “maintains especially tight ties with a circle of lobbyists and former aides representing some of the nation’s biggest businesses, including Goldman Sachs, Google, Citigroup, R.J. Reynolds, Miller-Coors and UPS,” or that they have “contributed hundreds of thousands of dollars to his campaigns, provided him with rides on their corporate jets, socialized with him at luxury golf resorts and waterfront bashes and are now leading fund-raising efforts for his Boehner for Speaker campaign, which is soliciting checks of up to $37,800 each, the maximum allowed.” It would surprise no one, but it does offend our sense of justice that corporate wealth would have a greater claim on Mr. Boehner’s time and attention than the average citizen of his 8th Ohio district.

I am suggesting, however, along with Chomsky, that the right to property is nevertheless qualitatively different than the right to speech or religion, not as a “right” per se, but in its upshot. My right to a particular piece of property does deprive others of any right to that particular piece of property, and the free acquisition of wealth -- that is to say, the unfettered acquisition of wealth -- has always been morally suspect, in part because power confers wealth and wealth confers power, a vicious circle resulting in super-sized wealth and super-sized power, and as we all recognize might makes its own right. The accumulation of wealth, that is, has always been morally suspect with the possible exception of that resulting directly from labor, where there is a direct relationship between the disciplined expenditure of effort and the reward -- a relationship that preserves our basic sense of equity and fairness -- of justice. Equal pay for equal work. As others have no doubt noted, the Marxist paradigm emerges less from an historical imperative, less from economic imperatives, more from a sense of equity and justice. Marxism is a moral imperative. Within the industrial economies observed by Marx, not unlike the agricultural economies before, those who owned the means of production, the factories and arable land, profited from the labor of others and in the process violated the equivalency between the disciplined expenditure of effort and the reward. The laborer did not get all that he worked for, only a portion of what he worked for, the remainder going to the pockets of the owners. So long as the supply of labor exceed the demand for labor, their portion grew smaller and the owners portion grew larger. The reducto ad absurdum, the lower and upper limits come when the wage earned is literally no longer a “living wage,” and as the history of famine has demonstrated again and again, “owners,” however conceived, seem willing and able to push the wages of labor below the “living-wage” limit. For Marx, of course, the simple and elegant solution was to remove “ownership,” give it to all equally, and restore the equitable balance between labor and reward.

As with most attempts to create a moral state, a just state, Marxism failed, and did so to the misery of millions. The simple and elegant solution turns out to be more simplistic than simple, more egregious in its errors than elegant, in part because it violates a human element as fundamental as our sense of fairness -- that is to say, our sense of “mine.” Whether nature or nurture (I suspect nature) children at a very young age learn to say “mine!” I know of few parents who expend effort teaching children to take ownership of their toys, but many who expend considerable effort cajoling them into sharing. The various forms of socialism are predicated more on wishful thinking than human nature, on the ethical imperative to share equally than any observed behavior, whether historical or current. Any compact to share equally must, that is, be enforced, and those who have been given the power to enforce it have also been given the power to violate it, and often did, seizing for the public owners privilege subject to the same abuses as the private owners before them. As any parent of a five year old will tell you, or better the parent of any adolescent will tell you, Nietzsche got it subtly wrong (or perhaps I am getting Nietzsche subtly wrong). The will to “power” is the will to “liberty,” to be unfettered in one’s actions, to do what one can do. It is not that “liberty” stands as an inalienable right. It is rather the inevitable desire to do what one can, and for the five year old on the playground, the one recognizing his power, it is the stronger’s upwelling desire to take possession of that toy, declare it “mine!” and to do so over the weaker’s impassioned plea for justice, “mom!” -- it is the inevitable desire to take possession of that toy, not because the stronger has any legal or ethical right to the property, but simply because he can, because he feels his superiority and feels likewise compelled to act from within that superiority. The fifth amendment recognizes this basic human tendency when it stipulates that private property cannot be taken for public use “without just compensation” -- and here again it is worth noting that there is little doubt what “just” means in this context -- a compensation equal to one’s alienated private property. Our sense of justice is outraged by thievery, the alienation of property through stealth or power, regardless whether the thief is public or private.

As I’ve suggested, sometimes it is good to return to basics, the playground, so the issues at stake come clearly to the foreground. Freedom, and the power to exercise it, is thoroughly human, but amoral. In and of itself freedom has no moral or ethical value, only what we do with it, and I know of few cases where freedom, left unchecked, has not led to abuses of power. I will not make judgments on the basic goodness or evil of human beings, in part because we already know the answer to that question and we learned it on the playground. Questions of good and evil do not concern the powerful. Questions of good and evil are of concern to those who need protection from the powerful, and it is perhaps to the point that when Adam and Eve learned the lesson of good and evil, they did not become like god as the serpent promised. They did discover their powerlessness, that god gives and withholds life itself, the ultimate expression of power, but he also gives and withholds the free enjoyment of property, the penultimate expression of power. We have felt the sting of death and the foreclosure from Eden since. While I will not make judgments on the basic morality of human beings, I will say, however, that we have what might be called a moral predisposition hardwired into our being, a moral predisposition predicated on a sense of “mine!” The child’s moral predisposition is outraged when the toy is appropriated, but the other child is no less outraged when parental authority intervenes and the toy is returned to its original possessor. Here again, liberty and justice are not complementary, but contradictory. One child’s justice is the curtailment of the other’s liberty to do what he can, and the question is this: which takes precedence, liberty or justice? Which form of parenting would we prefer to see, the parent who returns the alienated toy to its first possessor, or the parent who sits idly by letting nature, so to speak, take its course. It is easy enough to say the original owner has the better claim, that parental authority should protect his rights to property, but it is also easy enough to see that his possession and enjoyment of the toy deprives the other of its possession and enjoyment, and it seems reasonable for parental authority to intervene and demand that they share. It seems only “fair.”

As I have suggested, the issues seem clear enough when it is two children on a playground, because the stakes, ultimately, are not very high. What if it were, however, a matter of life and death, not figuratively, but literally. While we have not prevented death once and for all in this vale of tears, it is clear that we have the ability to keep it momentarily at bay. It is also clear that, to do so, involves a bit of work and the consumption of resources, and so too it is probably to the point that, beyond the gates of Eden, Adam must earn his bread through the sweat of his brow. Beyond the gates of Eden, sustenance does not come free, and for the resources we need to sustain life there is an exchange of labor, if not directly, then indirectly. When I hand the cashier money, or more likely scan my debit card, I am exchanging my labor the labor of a whole host of people involved in the production of my Honey-Nut-Cheerios. The exchange seems fair enough -- at least I freely consent to it -- and if my Honey-Nut-Cheerios seem exorbitantly priced, I am always free to choose a more modestly priced generic brand, one more within my means, and free market competition, we can be thankful, has provided us with a number of options to ward off starvation. As Weber among others has explained, this deep connection between labor and reward -- the so called protestant ethic -- is core to our morality. One must be free to sell one’s labor if the virtue of industriousness is to be rewarded, the vice of sloth punished, and so the free market becomes the playing field of god, where winners and losers are determined relative to virtue and vice. As an aside, this deep connection between labor and reward explains the moral repugnance of usury. It breaks the basic covenant, and one’s property itself, not one’s labor, begets even more property to our own and others deprivation.

It seems rather silly to ask, but to what extent is “life” an inalienable right? Clearly, when people are free to do what they can do, whether from the absence of constraint or the ineffectuality of enforcement, much mayhem often results, with much less compunction than we might wish. A violation of one or another’s sense of “mine!” usually occasions it, and oddly we often speak of “life” as though it were property and our “right to life” congruent with our property rights. It is “my life,” after all, and I am free to enjoy it, such as it is, only when I am free from the violence of others against my person and against such property as it takes to sustain life. Few would quibble, and we do have a whole panoply of laws restricting our freedom to inflict mayhem on our neighbor because his dog has pooped in the petunias, though we might be sorely tempted -- that is, a whole panoply of laws enforcing the “live and let live” reciprocal obligation implied in the “right to life.” Having said that, however, there are significant qualitative differences between a “right to life” and “rights to property” per se -- my right to live and my right to own the latest version of the iPhone. As anyone who has been robbed a gun point will tell you, if “life” is a property right, it is the first and last piece of property one possesses, and its loss renders all other rights moot.

So, having said that, how far does my right to life extend? As a property right, is it protected along with all other property rights? A simple example will illustrate the point. Let us imagine that at the end of the harvest season there is sufficient food available to ward off starvation for a village of 100, but let us also imagine that, by dint of fortuitous circumstance, that I possess half of the available food. The other half is equally divided among the other 99 villagers, but their share is insufficient to ward off starvation. If I am free to behave as I damn well please, the moral question raised pertains to me and me alone -- should I or should I not distribute my disproportionate share among the others? I could, of course, distribute most of my share equally among the 99, but that might not be prudent. The same circumstances that prevailed to create the dilemma might exist in the coming year as well, and so prudence and the preservation of my own life might dictate that I set aside a reserve (just in case things are even worse) and distribute a portion of the remainder to a select few, those most able to provide security for my share and assure a good harvest in the coming year. As fodder for an introductory ethics class, I could go on teasing out the various implications of what I should perhaps do, but for the moment I am simply pointing out that, despite the qualitative differences between “life” and “property” per se, the two are inextricably intertwined insofar as property sustains life. Also, I am pointing out that “liberty,” when coupled with protected “rights to property,” centers the moral decision within the individual. The 99 slowly starving villagers also have individual choices to make. They could, for example, gather the remaining food into a single pot, decide how many it will sustain, and draw straws to see who the lucky few will be. They could also gather up their pitch forks and revolt. Though the villagers might feel differently, so long as I do no violence and simply mind my own property, I am not in any active sense depriving them either of their right to life or their rights to property, even if I fail to distribute a portion of my food. I would be deprived of my rights to my property, my rights to my food, my freedom to enjoy my good fortune, however, if the villagers gathered and forcibly took my stores. It seems that I am well within my property rights to watch them slowly waste away, and insofar as it is the obligation of government “to protect the minority of the opulent against the majority,” or at least within the Madisonian version of the government’s role relative to property rights, I could expect then assistance from the militia should the villagers revolt. Nevertheless, it is a choice they could make. It goes almost without saying that my choices are much better than the villager’s choices, and no one, no rational human being, would choose such a social arrangement, particularly if there were some question where one would end up, as the lucky one or among the unfortunate many.

There are numerous contexts within which one could explore precisely this question: does my “right to life” trump your “right to property?” The current health care debate is one such case in point. I strongly suspect that there is sufficient capacity to provide quality health care too all, but it is not a question of capacity, but rather the ability to pay. Those who have the ability to pay -- whether that comes through employer subsidized health care plans or simply out of pocket -- will get health care. Those who do not have the ability to pay will not get health care. On the assumption that the new regulations will require some redistribution of property and that corporate entities act on their self interest, it is not surprising, as Jacob Hacker and Carl DeTorres report in the NY Times, that insurers “have been dragged kicking and screaming at every step,” and that “an increasingly consolidated insurance industry is also fighting back, with the largest insurers considering bankrolling an organization to help elect candidates for Congress who will side with them on crucial regulatory disputes.” Lest we think this is an altruistic dispute about how better to provide maximal coverage, as Reed Abelson reports, “as Obama administration officials put into place the first major wave of changes under he health care legislation, they have tried to defuse stiffening resistance -- from companies like McDonald’s and some insurers -- by granting dozens of waivers to maintain even minimal coverage far below the new law’s standard.” As he goes on to point out, “several leading insurers, including WellPoint, Aetna and Cigna, have also objected to new rules requiring them to cover even those children who are seriously ill, warning that they will stop selling new policies in some states because the rules do not protect them from having to cover too many sick children.”

We could also discuss social security and medicare, but my the point is clear enough. As a nation, we are increasingly answering the question that right to property, to include the unregulated freedom to profit from fortuitous circumstances that privilege some over others, trump the right to life, apparently even for “sick children.” In the end, it should be obvious to all that a “right to life,” if that right extends to anything more than the reciprocal obligation to abstain from direct violence, will require some redistribution of property. It should be obvious to all that a “right to life,” if that right extends universally to all, will require some redistribution of wealth. Although the McDonald’s corporation sponsors wonderful charity work through the Ronald McDonald houses, providing care to children who might otherwise not receive care, it seems odd that the same corporate structure, in the protection of its assets, would threaten to deny its employees of their health care. As Sen has suggested, rarely is famine caused by "not enough food." It is more often caused by "not enough money" to pay for food. Within democratic societies, with protected rights to speech, public outrage has served effectively to prevent famine through some redistribution of wealth. I wonder when there will be sufficient public outrage to prevent an d to treat disease. In the meantime, it seems that we are hell bent on protecting corporate freedom, corporate wealth and power, and corporate rights to property.

With Liberty or Justice for All

I remember saying the pledge of allegiance as a child. The names and faces of the various teachers have long since been lost to memory, but some of the rituals, repeated into adulthood, have left an indelible impression. One was the pledge of allegiance. As a child, of course, I didn’t give much thought to what it might mean to pledge allegiance, much less the import of the recitation – “one nation, under God, indivisible, with liberty and justice for all.” As an adult, frankly, I haven’t given it much thought until recently, when I said, to a friendly acquaintance, “I no longer think this country is governable.” It was simply the sort of stray remark that I sometimes make in the course of a conversation, not a long considered or a deliberate statement of principle, but also the sort of remark that, once it has been said aloud, seems right. My acquaintance asked, “how so?” but at the instant I really had no answer, so I hemmed and hawed a bit about ideological paralysis, the sort of deep division between the mainstream parties that have made even the shallowest compromises virtually impossible – though on reflection, I’m not at all sure the divisions are ideological so much a visceral. The ideological divide is at the top centers on the between competing desires to concentrate power either in government or in corporate boardrooms. In the end, it probably won’t much matter who wins that dispute, at least not to the vast majority. Navarette, in a recent column, probably has it partly right at least. He tells us “the big divide in America isn’t between red states and blue states. It’s between snooty elites in both parties and the everyday people whom they claim to respect but secretly despise.” I say partly right, because I think the liberal elite, at least, still has the economic interests of the “less than elite” somewhere in mind, but one wonders if it is really the interests of the little guy so much as it is to check on-going shift of power to the boardroom. The liberal elite also seems to be stimied by a sort of visceral response among many of the “less than elite” that brings it up short. President Obama is in many respects the perfect face of liberalism today – ethnically transnational, well educated, racially ambiguous. It is not difficult to imagine President Obama sitting in the board room of a global conglomerate, and there is little doubt that, in mind and manner, he is one of the elite. Moreover, he bears the stigma of an urban elite – urban elite, not as in Springfield or Normal, but rather urban as in the increasingly multinational cities of New York, London, Chicago, Paris, Los Angeles, Tokyo. Whether he secretly despises the “everyday people” is an open question, but the awkwardness – the downright weirdness – of the so-called “beer summit” demonstrates just how far he is from Joe Six Pack.

We no longer say the pledge of allegiance, and it is probably just as well. It is unclear, exactly, where my allegiance lies. In a past life, I have sworn to defend the constitution of the United States, and despite a pacifist bent, that seemed to me worthy – in part because I had actually read the constitution and could imagine, both in heart and mind, sacrificing myself (if not others) to the goals set out in the preamble. The founding attempt “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the blessings of Liberty to ourselves and our Posterity” seemed then, and still does, worthy of pursuit. I am not sure, however, what it might mean to say we are “one nation, under god.” Which god? Whose god? Mark Blitz has recently published an essay in Policy Review, “What Conservatives Retains,” and it is instructive in part because it says nothing remotely new. In it, he tells us that “religion has always belonged to the practices that conservatives seek to conserve,” but he is also quick to point out that religion may well be “too broad a term.” For Blitz, “traditional conservatives seek to secure particular practices and, therefore, particular religious practices. In the United States these practices are Christian. Remarkably, they are also coordinated with tolerance.” It is instructive to look at the array of faces in many contemporary elementary classrooms. Those bright little faces look up to parents that are not only Christian, but also Muslim, Buddhist, Hindu, and atheist. Forget for the moment, the deep divide between Catholic and Protestant versions of Christianity, particularly the Catholics, mainstream Protestants and the various evangelical movements, there remains the divide between Judaism, Hinduism, and agnosticism from those “particular religious practices” that “traditional conservatives seeks to secure,” I am a bit baffled what might be meant by “coordinated with tolerance.” On the one hand, I see little or no “coordination,” except perhaps the rigidly and minutely enforced secularization of the public domain within the United States, a secularization that tends to grate against the sensibilities of those who, according to Blitz, “take religion seriously, not as useful or habitual, but as true,” who in turn use it to “guide their lives, direct their actions and shape their politics.” That such a statement could apply equally well to the Taliban as to the evangelical right – indeed might apply even better to the Taliban than our evangelical right – perhaps prompts Blitz to remark that the conservation of “particular religious practices” can often lead to “concrete controls whose origin is religious moralism or populist fear.” The actual establishment of “one nation, under god” is not, and never has been, a prescription for “tolerance,” as was recognized by our largely agnostic founding fathers in the third amendment to the constitution, the amendment prohibiting theocracy and guaranteeing the secularization of public life.

I will leave it for others to discuss just how “indivisible” we are – whether “liberalism” or “conservatism” is the bobbing tip of the populist ice berg that will sink the American titanic. Having said that, however, it is difficult not to feel some unease for our children and grandchildren, the vast majority of whom are attending classes below deck, down in steerage. Blitz again tell us “the principles of our conservatism are not irrational but, on the contrary, are primarily the principles of the Enlightenment,” though of course he suspects “today’s liberals” of being irrational in their “inability to distinguish rationally between better and worse, their understanding of justice as equal results, and their proclivity to vilify or censor deviation from their orthodoxies.” It’s not the sort of charge that a liberal should stoop to answer, except to say, “Back at you.” Nevertheless, it strikes me that we are as divided as ever, and one of the primary difficulties – perhaps the difficulty – is captured in the phrase “with liberty and justice for all.” The difficulty lies neither with “liberty” nor with “justice,” per se, but in the conjunction that joins them. It is not – and perhaps ever has been – “liberty and justice.” It would be much more accurate to say “liberty or justice” because the two principles are at fundament irreconcilable.

Blitz tells us the “Central American conservative principle, and the one most attractive politically, is liberty, or freedom.” He goes on to give several red herring objections to conservatism without, at least from my perspective, touching on the central objection to conservatism – that is, no one, really, believes in liberty, or in freedom for all. We do, however, believe in liberty for ourselves. I won’t quibble over the definition of freedom. It is the ability to act unfettered, to do as one pleases, and in this Blitz is right, “the power of liberty’s appeal lies in its clarity, universality, and desirability.” And indeed, “its attraction and its importance for pursing almost anything else one wishes, is readily and easily visible to common sense.” Each and every one of us wants to be free, as free and unfettered as possible, but no one really believes that others should be equally free, should be allowed to do as they damn well please. It’s a lesson we learn on the playground and the bully is the one how teaches it. Anyone who has been subjected to bullying knows that one’s own freedom is inversely proportionate to the bully’s freedom. At the risk of indulging in stereotypes, at least on the male side of the equation, the bully is the big kid, the somewhat dim-witted kid, who is not particularly happy with himself or the world he inhabits. It is freedom as brute force, exercised often for the joy of brute force itself, the joy of distributing unhappiness among others, but regardless of the motive, those subject to it know they must defer to it, tip toe around it, give it thought and attention lest one get “pounded.” Again, at the risk of indulging in stereotypes, at least on the female side of the equation, the bully is the pretty-girl, the object of desire and emulation, and a source of disgrace for those who don’t measure up to an often arbitrary standard maliciously enforced. Here again, those subject to it must defer to it, tip toe around it, give it thought and attention lest one get “humiliated.” There are, of course, a thousand variations on the theme, and the older the children, the more parental money or status enters into the equation. Indeed, even school children know that allowing bullies the free pursuit of anything they might wish is a prescription for nurturing sociopaths, and we see much in their behavior, much in their budding sense of entitlement to power or prestige, that confirms it.

No one really believes the bully deserves to be the bully, except perhaps the bully, and we are pleased when parental or other authority intervenes on our behalf to regulate the behavior of those who exercise arbitrary and malicious power over us – to free us from coercion or abuse. Although admittedly there is some residue of embarrassment at our weakness, at our need for intervention, nevertheless a freedom from daily pounding and loss of lunch money generally contributes to our overall happiness. I said I wouldn’t quibble over the definition of freedom, but I should point out that “freedom from” is qualitatively different than “freedom to” – that which, in Blitz’s words, “liberates most of us from domination by attachments to groups, classes, and ethnicities, or to ascriptive authority generally” resides not in the expansion of liberty, but in the curtailment of liberty. The “individual stance favored by individual rights” does not develop as an expansion of government power, but as the clear and concise curtailment of government power – “congress shall make no law.” As any five year old knows, if bullies are to be held in check, their ability to act must be curtailed, and for the most part, we are quite happy when it is government action that is being curtailed, since government historically has been the biggest bully. They are not, however, the only bullies on the playground, and I probably don’t need to point out the arbitrary power the major insurers or mortgage companies have over the American people. The insurers have lobbied against the expansion of publicly funded health care, not because it benefits us, but because it benefits those who profit from the sale of health insurance. It is difficult to frame this as an individual’s right to act or to choose, insofar as very few of us have any choice in the matter of our employer provided plan, or the coverage it provides, or the physicians who attend to us since often our choices are limited to a “group” or a “network.” I have no illusion that it would be better under government control, except perhaps that the 51% of Americans, particularly the children, would have some coverage as opposed to none. Despite the large scale financial devastation suffered mostly by Middle Americans, the mortgagers have escaped most attempts at reform regulation of their activities. Here again, it is difficult to frame this as an individual’s right to act or to choose. There are fewer than we might imagine, and once one enters into a mortgage, your debt becomes a commodity. My own mortgage was traded at least twice in the last few years, at last from the failing Country Wide to Bank of America, and no one asked for my permission to do so. The insurers and the mortgagers make the rules, and they impose them on us to their benefit. What ought to be apparent to most is the governments increasing powerlessness to curtail the arbitrary and impersonal bullying of the large scale, multi-national corporation. Government, more and more, with the help of a contemporary conservatism that extends “individual rights” to corporate entities, is giving over its historical role as bully to those same multi-national entities that are, as the current jargon has it, too big to fail. They are, more and more, free to bully us. Less and less is government or any other form of in loco parentis there to intervene and free us from their often malicious, because impersonal, bullying.

Again, no one really believes the bully somehow deserves to be the bully, except perhaps the bully. As a sidebar, let me address briefly this whole business meritocracy, the notion of “just deserts,” the “pursuit of excellence” and the corresponding disdain for “the dominance of mediocrity.” It’s easy enough to believe in a meritocracy if the cards are stacked in one’s favor – if one is, to use my grandmother’s words, from one of the “better families,” those in possession of “means.” While James Merrill is certainly an excellent poet, it perhaps goes without saying that his pursuit of that excellence was not hindered by the by the inherited social position provided by Merrill Lynch. It is easy enough to believe in “equal opportunity,” and what Blitz calls “the reasonable defense of equal rights,” when one has the “means” to capitalize on those opportunities, the “means” to pursue excellence, the “means” to pursue happiness, but the assertion that everyone, under the law, has an “equal right” to pursue their dreams is little consolation to those who cannot afford it and who have diminishing prospects of ever affording it. It’s also easy enough to believe in a meritocracy if one is eighteen – if one has been thoroughly educated in “self-esteem,” those in possession of an unshakable and largely narcissistic sense of themselves and their possibilities – that is to say, those whose faith in their “dreams” within the oceanic possibilities of the American dream has not yet been dashed against the rocks. We can all point to those who, through intelligence and pluck, defied the odds, rose from rages to riches, but they are few and far between. They are the truly elect. They have been singled out and touched by the finger of God, or perhaps Satan. No one really believes that the accumulation of “means” is entirely meretricious. In 1828, Lydia Child asked, “Would you be rich? Do you think that the single point worth sacrificing everything else to?” She then answered:

You may then be rich. Thousands have become so from the lowest beginnings by toil, and diligence, and attention to the minutest articles of expense and profit. But you must give up the pleasures of leisure, of an unembarrassed mind, and of a free, unsuspicious temper. You must learn to do hard, if not unjust things; and as for the embarrassment of a delicate and ingenuous spirit, it is necessary for you to get rid of it as fast as possible.

Indeed, we have a sneaking suspicion that those who answer Ms Child in the affirmative, those who dedicate themselves to the accumulation of “means,” are really sociopathic and we see much in their behavior that confirms it. A willingness to do “hard things” in pursuit of excellence involves more than just self-sacrifice. It involves the sacrifice of many mostly unwitting partners, and those who are in a position to demand this sacrifice of others seem increasingly willing to do so. I am virtually certain that every corporate executive who lays off thousands justifies his own exorbitant salary by the “hard decisions” he or she must make to preserve corporate profits. More and more the meretricious within the meritocracy are those who suffer less and less under the embarrassment of a compassionate sprit. For those of us afflicted with a deepening unease about life in the United States, for the one in seven of us living in poverty, for the one in ten of us who are currently out of work, for the 95,364 of us who lost our homes in August, for the 57 million of us who have no health insurance, the outrage has little to do with an “understanding of justice as equal results” as opposed to “an understanding of justice as equal rights.” The demand for justice simply wants an answer to the question, “what did I do to deserve this?” The question remains unanswered because there really is no answer, and the voice from the whirlwind has little better counsel than “suck it up. Life isn’t fair.”

Any five year old can tell you what is and isn’t fair, and our sense of fairness, our sense of justice s deeply tied to a sense of equitable, if not absolutely equal, distribution. Any parent knows that “just results,” equitable results, don’t “just happen.” A simple thought experiment will illustrate the difficulty. Imagine a room, two children and one candy bar. In scenario one, both are free to act as they will, and “justice” is maintained, not in the equal distribution of the candy bar, but in the equal distribution of liberty – each has a right to as much of the candy bar as he can secure. Blitz tells us, “we can successfully exercise equally held individual rights only if we also develop certain virtues of character,” so let us likewise suppose that the two children receive instruction in “sharing,” not as something that one must do under pain of sanction, but, like most virtues, as something one should do in order to be a good person. They are then set free in the room. If the big kid takes upon himself the task of dividing the candy bar and the task of distributing the two pieces, he may share, but I strongly suspect that he will share the smaller of the two pieces. If parental authority is limited to a lecture on “sharing” and “being good,” and there are no other sanctions, I also suspect that, over time, unregulated, the big kid’s share will get larger and larger, the small kid’s smaller and smaller, and Adam Smith’s “vile maxim” will play itself out – all for me, and none for you. If you are the big kid, it will seem the natural order of things. If you are the small kid, it may well seem the natural order of things, and he may well acquiesce – what choice would he have? – but it will not seem “fair” to either. Quoting Chomsky, quoting Madison, who “warned that the rising developmental capitalist state was ‘substituting the motive of private interest in place of public duty,’ leading to ‘a real domination of the few under an apparent liberty of the many.’” If money is the means to domination, the recent headline, “recession widens earnings disparity,” should cause us pause. Drawing on the census numbers, the reporter goes on to say, “the income gap between the richest and poorest American grew last year to the widest amount on record as young adults – and those with children in particular – struggled to stay afloat.” If the role of government is limited to the protection of liberty, particularly the liberty of those “collectivist legal entities” that more and more hold both the American public and the American government hostage. They are “too big to fail,” and because they are “too big to fail,” they continue to demand their “taste,” their “tribute,” if not from the American public directly, then from the American public indirectly through tax dollars. American conservatism, as the jealous guardians of “equal liberty” as “justice,” are more and more the jealous guardians of an outright rapacity, the jealous guardians of the opulence of the “opulent minority,” that leaves for the growing majority only an apparent liberty. It is small consolation for the small kid to know that he is “free to” take as much of the candy bar as he can when he doesn’t have the means to do so. To insure “liberty for all” is not to secure “justice for all,” not at least by any standard of equity that would be “self evident to reason.

Any parent will tell you, however, that an equitable distribution of the candy bar, “fairness,” requires some regulatory intervention. In scenario two, same room, same kids, same candy bar, but the virtues of “sharing” are enforced by a simple regulation. One child gets to divide the candy bar. The other gets first choice of the two pieces. So long as the regulation is enforced, it doesn’t much matter who divides or who chooses, the result will be the same. There will be a minute attention to the equity of the division. The liberty of each is constrained by the other, but there will be a “fair” division of the candy bar. It is disingenuous, although entirely natural, for the big kid to value “liberty,” autonomous action. I am not sure it is equally disingenuous, but it is equally natural, for the small kid to value the parental intervention and “concrete controls” that assure an “equitable” result. The big kid values “liberty” and deregulation, the small kid “justice” and regulatory controls. It is not liberty and justice, but liberty or justice. Ultimately, however, reason stands in defense of “justice,” not because it is inherently better or worse than “liberty,” and not because it occupies some a priori position in a scheme of values. Quite the contrary, liberty needs no defense. I have never not been free in my actions, and that is not because I am an American, but because no one, living or dead, American or Armenian, has ever not been free to do what they can. Conversely, I have never been wholly free in my actions, and that is not because I am subject to this or that government, but because I am what I am, and I am, and everyone else is, bound to their circumstances and there is always much that I cannot do. I cannot flap my arms and fly to the moon, nor can I afford to purchase that house on the hill. Of course there is a qualitative difference between the two. No one can flap their arms to fly to the moon, but some can afford the house on the hill, and that I cannot while others can afford that house is bound up in social and economic circumstances. Liberty needs no defense because the strong have always been free to do what they can while the weak suffer what they must. Liberty needs no defense because liberty, in the absence of a mitigating justice, inevitably leads to the absolute tyranny of the strong over the weak and violent competition among those who would be strongest. It is the social order of chimpanzees. The big kid values liberty over justice, not because he has a deeper and more abiding love for liberty, but because he sees clearly how much more he could have were it not for the mitigating forces of justice.

To assume, as Blitz does, that “certain virtues of character,” that “the memory of traditional duties, or even, the echoes of traditional nobles oblige,” are sufficient to justice is to inhabit a fool’s paradise. The conservative concern with “liberty,” I would suggest, is deeply cynical, and even more disingenuous. Although couched in an egalitarian language – “equal rights, equal liberty, equal access to markets, and positions awarded on demonstrated merit” where “equality of opportunity is its watchword” – anyone who examines their own circumstances and makes the invidious comparison to the circumstances of others knows that there are wide disparities between what they can do and what others can do. If the “equality” of “equal rights” is simply the right to do what I can, if the “equality” is “equal liberty” is simply the freedom to do what I can, anyone knows that, given my circumstances, there is much that I cannot do that others can. “Equality of opportunity” might be a conservative watchword, but anyone who has examined their own circumstances and makes the invidious comparison to the circumstances of others knows that some have much more opportunity than others, that some are better positioned than others, and there is little to indicate that such “positioning” is based on anything resembling “demonstrated merit” of one individual over another. In the end, conservatism wishes to conserve power, an economic power that is free from any mitigating concerns with justice – that is free from the sorts of regulatory restrictions that assure a more equal distribution of “opportunity,” if a more equal opportunity is conceived not only as the freedom to do what one can, but also the means to do what one can.

In the end, I would find myself in agreement with an American conservative stance, if the “limited government that is implied by conservatism” really did mean that “government should be restricted to certain tasks, mechanisms, and procedures, not that government should everywhere be weak or small.” The framers of the constitution could not, of course, have predicted the horrors of 20^th century totalitarian governments, whether on the left or on the right, but the first and fourteenth amendments, and the restrictions they place upon the government, are the primary bulwark against government excess, whether Marxist-Leninist or National Socialist. Justice, not liberty, requires constant vigilance, and restrictions on the government’s right to limit popular speech provide a necessary condition for that vigilance. It was the framer’s great good genius or the fortuitous convergence of ideas, that the marketplace of ideas, and their subsequent reification in the vote, is the greatest protection against the exercise of arbitrary, self-interested – that is “unjust” – power by governments. The greatest guarantors of our freedom from excessive government, however, is neither the legislative nor the executive branches, but the courts. Free speech – that is to say, freedom from restrictions on popular speech – will never be in the interests of those exercising power, and where it can be limited, it is. I doubt that anyone working for Lehman Brothers felt they could critique the leadership of Lehman Brothers in any substantive or meaningful or public way – not and keep their income and benefits. We have all heard tell of our employers that “this is not a democracy,” and indeed, most corporate leaders exercise a control as diligent as any third world dictatorship, often with better technical means at their disposal. This is not simply a “proclivity to vilify or censor deviation from orthodoxies,” whether liberal or conservative, because there are hundreds of examples of ad hominem vilification on both the left and right. The protection of popular speech virtually guarantees also a certain amount of “anti-intellectualism and populist vulgarity” of every sort. Nevertheless, free speech – again, freedom from restrictions on popular speech – is effectively the best defense against stupidity. It is the right that secures the others, and ultimately advocates for justice.

In the end, that is, I would agree with Blitz, but the question remains, if government is to be “restricted to certain tasks, mechanisms, and procedures,” then exactly which tasks, mechanisms, and procedures? If government is not “everywhere weak and small,” then where exactly should government be large and powerful? The framers of the constitution could not, of course, have predicted the emerging horrors of transnational corporations. The conditions that led to the BP oil spill in the gulf and the collapse of the housing market stemmed, not from an excess of regulatory oversight, but a paucity of regulatory oversight. BP effectively destroyed the livelihood of many along the gulf coast, and while many of the small businesses will not recover, I suspect the corporate executives of BP, and BP itself, will not feel the pinch in quite the same way, despite the clear and unambiguous evidence of their short-sightedness and incompetence, if not their self-interested malfeasance. I doubt that the small businesses along the coast will find it just, by any measure, to suffer what they must so BP’s liberty to pursue profit might flourish. The collapse of the housing market will take years to disentangle the causes and, without doubt, the distance of history to move beyond partisan blamesmanship, but it is clear enough that so-called “private” financial enterprises have gained, if not “substantial control over the domestic and international economy,” then at the very least a devastating impact on those economies. Likewise, I doubt that the hundreds of thousands of displaced homeowners will feel it just, by any measure, to suffer what they must so the likes of Citigroup, Deutsche Bank, Goldman Sachs, UBS, Merrill Lynch, Bear Stearns and Morgan Stanley might have the liberty to amass fortunes far in excess of what most might imagine. To an ever growing extent, the American people are being colonized by “collectivist legal entities” that are less and less bound by questions of national sovereignty, more and more by corporate sovereignty, and I am suggesting that the proper role of government is to secure justice – that is, the tasks, mechanisms, and procedures should be designed, consciously, intentionally, to secure some degree of “fairness.” Laws that jealously guard the freedom, not only of individuals as individuals, but “collectivist legal entities” as though they were individuals, will eventually lead to tyrannies no less appalling than those of Stalin, Mao or Hitler. Where they can, they will make the rules, outside national sovereignty, outside effective regulatory control, outside the popular consent of the people, and they will do so to their benefit, not ours. Those who would continue to reduce the role of government, however ineffectual, will by that measure allow various non-governmental, often transnational entities greater and greater sway over our lives, both as employees dependent upon those organizations for our livelihoods and as consumers dependent upon the goods and services produced by those same organizations. It will mean, ultimately, the end of liberty and justice for all.