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.