Constitutional Law

Pin It

Presuppositional Constitutionalism

by Tim Kowal on May 21, 2012

coin-in-god-we-trustDoes the Constitution assume certain presuppositions on the part of those it means to govern?  If so, what are those presuppositions? 

I submit the answer to the first question is yes, and explain the presuppositions that by necessity must be true for our Constitution to be intelligible. 

In light of the project begun here recently to explore the contemporary significance of the natural law, I  offer for your consideration my theory of natural law constitutionalism, or “presuppositional constitutionalism.”   It is largely based on Hadley Arkes’s theory set out in his 1986 book, First Things.  The theory, in short, is as follows:  Natural law and constitutionalism are each concerned with transcendental propositions that make their respective projects intelligible.  The U.S. Constitution, for example, does not state that its provisions are to be construed to avoid contradictions.  Nor does it anywhere use the word “unconstitutional.”  Yet, it does not give us any pause that, without any express guidance in the text of the Constitution, certain rules of logical and linguistic construction are applied to the Constitution, and that hundreds of laws have been struck down as “unconstitutional” without any express mechanism for doing so.  Why does this not concern us?  Because it would be absurd to presume that reasonable rules of construction would not be applied, or that a law that contradicts our Constitution could be anything other than unconstitutional.  These truths are implicit in logic.  To deny them would be the height of foolishness. 

I submit that there is a trove of such truths, preconditions I call them, that are found “under the hood” of the Constitution.  Each of them are necessary to making the document intelligible, and each of them would be utterly foolish to deny.  That is, denying them would render us incapable of giving an account for our knowledge about the world and would otherwise undermine our essence as human beings.  

This take on natural law reasoning is a little different than what is commonly advanced.  Yes, it still begins with an acknowledgement of the sort of being man is, holding this, his nature, as the touchstone for moral reasoning.  Based on certain notions about who man is and the sorts of things he was made for, we can engage in some reasoning about how his relationships ought to be ordered, how he should comport himself, what his rights and obligations are, and so on.  I’ve always had a great deal of sympathy for the project, and as to certain questions, I think it can often be compelling.  But I have never felt the teleology-centric approach captures its true force. 

To my thinking, many natural lawyers skip an enormously profitable theoretical step at the beginning of the inquiry.  That step is to acknowledge, as a presuppositional (a priori) matter, that it is man’s nature is to acquire knowledge.  Man, at his core, is a philosopher, an insatiable seeker of truth about his reality.  Truth and knowledge are related but different concepts that drive man’s reasoning and lead us to necessarily accept certain claims about reality and reject others.  Recall Descartes’ extreme critical reasoning exercise of casting himself in total self-doubt, disqualifying all information acquired through his senses.  This ultimate skepticism is the extreme form of man’s search for truth.  We cannot be sure that our senses do not betray us, or that what we call reality is not some elaborate dream, or that we are not in the Matrix.  If truth were man’s sole directive, we might still be mired in Cartesian doubt with nothing to show for the human project but the cogito. 

But truth is not man’s sole directive.  He also insists that he must know what can reasonably be known about his reality.  If he is to know anything about his reality, he must presuppose certain truths.  One will immediately detect a tension between truth and knowledge, as it would appear the project for establishing truth is to be compromised for the sake of the knowledge project.  Recall, however, that the truth project has never been advanced past the point of solipsism.  Man is thus left with this choice:  Accept that you may have knowledge of reality on the basis of reasonable presuppositions, or else accept that you may have no knowledge at all.  Given our nature as beings who crave to understand reality, the latter choice is the very definition of absurd.

On this point, Immanuel Kant gave the following answer to David Hume who, because of his atheism, was unable to escape the solipsism of Cartesian doubt and satisfy himself that there was any rational justification for a belief in causation:  “it is under this supposition only [i.e., the supposition that a rule of causation exists] that an experience of anything that happens becomes possible.”  The transcendental nature of causation as a rule is “the foundation of all experience, and consequently preceded it a priori.”  In other words, unless we are prepared to forfeit the possibility of knowledge about any experience whatsoever, causation must be true. 

Thomas Paine touched on a similar sentiment of transcendental political rules in his Dissertation on First Principles of Government: “Every art and science has some point or alphabet at which the study of that art or science begins and by the assistance of which the progress is facilitated. The same method ought to be observed with respect to the science of government.”  If we are to make anything in the science of politics intelligible, we must admit certain presuppositions that give rise to intelligibility.  Otherwise, we will effectively be mired in a dark age of political knowledge with no common ground on which to advance our project. 

To put it more simply, there are certain facts about the world that must be true.  Not because we can see or measure them—information acquired through our senses does not rise to the level of logical necessity.  There is no empirical fact that must be true.  As Thomas Reid observed, “Experience informs us only of what is, or has been, not of what must be.”  Indeed, we have already established we have reason to doubt those “facts” which we can know only by our senses.  Instead, these facts I am referring to must be true because, were they not, we would be cast into absolute solipsism and will have lost all connection with the world and with our fellow man.  In the philosophical sense, the person who rejects such truths is made a fool: he is unable to account for his reality, his relationships, indeed his very nature. 

Consider the common logical proof, “All men are mortal; Socrates is a man; thus, Socrates is mortal.”  The argument is both sound and valid, and its conclusion true.  Presumably, however, you are still free to reject it.  Moral and logical laws are not self-enforcing like physical laws are.  This observation prompted Robert Nozick to muse:  “Wouldn’t it be better if philosophical arguments left the person no possible answer at all, reducing him to impotent silence? Even then, he might sit there silently, smiling, Buddhalike. Perhaps philosophers need arguments so powerful they set up reverberations in the brain: if the person refuses to accept the conclusion, he dies. How’s that for a powerful argument?”

However, it would be wrong to suggest that rejecting the simple argument above would carry no consequences.  Observing that the premises are true and the form of the argument is sound, only a degenerate fool would reject the conclusion.  Again acknowledging that man’s nature is to acquire truth and knowledge about the world, we would rightly conclude such a person is, in a teleological sense (i.e., with respect to the sort of being he is and what he is made for), defective.  

Natural reasoning, then, begins with the project of ascertaining those facts about reality that must be true in order to get the knowledge project off the ground.  This is not to say that we can stipulate such facts arbitrarily.  This is where religion and metaphysics come into play to provide a coherent set of transcendental facts.  Which religion or metaphysical theory is most appealing can be left to the individual as far as the natural reasoning project goes.  However, it should provide a basis for overcoming the solipsism of Cartesian doubt, it should account for the existence of laws by establishing order in our reality, it should account for the existence of immaterial things such as numbers and grammar and the laws of logic, it should account for the reliability of our senses, and so on. 

(It should be observed that not all worldviews are created equal.  In the absence of religion or some other systematic way of developing a worldview, the project of giving an account of the necessary preconditions for intelligibility of reality may justifiably attract a host of criticisms.  Elsewhere, I have accused some atheists of engaging in “shopping cart epistemology,” positing what they need to be true about the world when the need arises, thus rendering their worldview ad hoc and arbitrary.  Hadley Arkes observes something similar, but ultimately concludes that, with respect to the natural law project, it is acceptable to posit that which is needed to make reality intelligible.  “[T]o say that we ‘assume’ or presuppose the existence of time [for example] is not to say that we indulge an arbitrary assumption whose truth cannot be known. It is to recognize, rather, that we are dealing with a necessary truth or first principle whose understanding provides the foundation for the understanding of all other things.”)

A persistent problem for natural lawyers has been the reluctance of skeptics to concede the existence of an objective morality.  It should be clear by now, however, that the empirical model itself has already forced the skeptic to concede the existence of certain non-empirical, presuppositional truths.  Now that we have established the necessity of truths that do not depend for their validity on experience or feelings or a consensus, the skeptic has no ground to deny the existence of morals.  That is, the skeptic acknowledges the existence of transcendental presuppositions to acquire one kind of knowledge.  The skeptic cannot arbitrarily deny the existence of other presuppositions to acquire a different kind of knowledge, moral knowledge, which is equally important to man’s understanding of his reality. 

With this in mind, we can begin to understand why certain political principle facts must be objectively true.  That all men are created equal is one such principle.  I must assume all men are of the same nature as I am.  Otherwise, I would have no intelligible basis for moral objection or approval of the actions of another.  I would have no intelligible basis for purporting to communicate or transact or reason with others.  It is only by assuming that others are of the same nature as I am that I can intelligibly and reasonably enter into relationships with them.  If I do not assume this fact, all my social interactions are betrayed and irrational and meaningless—I may as well be talking to a plant or a bar of soap or any other thing that is not of a nature equal to my own.  It is thus a transcendental necessity, a presuppositional fact about the world, that all men are created equal. 

Similarly, as Hadley Arkes observed, “acting morally is bound up with the exercise of giving reasons. And by ‘giving reasons,’ of course, we would not mean merely reporting on one’s motives (‘I hit him because I felt the need for excitement’), but offering justifications.”  Again, man cannot reject his essential nature as a moral being without conceding the possibility of making any moral judgments about the world, e.g., that murder and rape and genocide are evil, and that courage and charity and selflessness are praiseworthy. 

Property is established under a similar analysis.  Man must find what he needs for sustenance and flourishing in nature, and thus is of central importance to his worldview constructed through reason.  At the outset, then, we cannot say that man is presuppositionally neutral in this respect.  Man necessarily has some natural, pre-empirical relationship with property. 

Based on what we have already seen, we can begin to understand what that relationship is.  If all men are qualitatively equal, then no one man can impinge on another’s reasonable actions without justification.  Man need not give any account to any other for growing, gathering, catching, or producing the necessities of his life and flourishing so long as his activity does not impinge on another’s ability to do the same.  Inversely, man must gain consent or offer reasons amounting to a justification before taking the property of another.  A principle (if it could be called that) of “might makes right” would lay waste to man’s precommitment to reason and reason’s injunction not to act arbitrarily.  Natural physical strength is, as far as man is concerned, arbitrary and thus cannot in reason provide a justification for altering relationships between man and property. 

As a starting point, then, we may conclude that man has a natural right to private property.  This does not mean that we cannot enter into compacts by which we agree to pool our resources for a common or greater good.  Nor does it necessarily mean that a majority’s will could not justify the taking of an individual’s property for a greater good.  But even such a system conceptually begins with an acknowledgement of an individual right to property—the justification offered must outweigh the individual’s claim.  This analysis deserves its own post, so I do not attempt any further treatment here. 

Liberty is also a necessary presupposition to intelligibility of any political reality.  The fact of man’s essential moral nature carries the germ that hatches the idea of liberty.  Hadley Arkes set this out nicely with respect to  natural law’s injunction against racial discrimination, but the analysis also applies to liberty generally:

[T]he language of morals makes no sense when it is directed toward acts that are determined by the causal laws of nature. We could never sensibly say that the earth is obliged to revolve about the sun, and that it would be wrong—or worthy of blame—if it did not. The language of morals must presuppose, of necessity a being who is free to choose one course of action or another. It is only because that being is free that he can be held responsible for his acts, and that he may, with coherence, be blamed or praised. When people are rewarded or punished not for their own acts, but for the accident of their racial background, they are not praised or blamed for anything that it was in their power to affect, and they are treated, therefore, as though they did not in fact possess the freedom or autonomy of moral agents. They are treated as though their acts were determined by causal laws beyond their own governance. As we shall see, then, the wrongness of this racial discrimination is rooted in the very logic of morals, and therefore it must be said that racial discrimination is wrong of necessity.”

Likewise with respect to liberty, if man is not free to choose, he is denied the exercise of his essential moral nature.  The political guarantee of individual liberty, therefore, necessarily follows from natural law reasoning such that to deny it defeats his nature. 

We begin to see how natural law reasoning forms the basis of constitutionalism, particularly American constitutionalism. 

If you have read this very long post to this point, let me now offer why I think this sort of analysis is so important.  It has been submitted by others on this blog that political positions and principles are essentially nothing more than “ideology,” or “my team vs. your team” that are hopelessly partisan and ultimately matters of personal taste.  And we tend to float along with this mindset so long as we don’t feel too strongly about our disagreements.  But what happens when we do?  It is important that we explore what we mean by things like rights and moral reasoning.  We are not all just floating past one other on separate islands.  We share a common nature, and common faculties.  Some of our ideas comport with our nature and faculties, and others do not.  It is my firm belief that we can more effectively vet those ideas than we often do. 

I welcome your comments. 

[Cross-posted at the main page]

{ 0 comments }

Pin It

America, Religious Freedom, and the Natural Law

by Tom Van Dyke on May 13, 2012

A recent George Weigel commencement address.

Defending Religious Freedom in Full: A Generation’s Challenge

“[A] special word of thanks, today, to the parents of today’s graduates — and the grandparents, and the other family members — who have helped bring you, the Class of 2012, to this pivotal moment in your lives.

natural lawyerToday is, by its nature — and I think at Benedictine College we can still speak of the “nature” of things! — a day of celebration, a day of remembrance, and a day of thanksgiving.

We share, today, a unique and critical moment in the history of the Catholic Church in the United States. At the time of the American Revolution, Catholics accounted for less than one per cent of the population of the thirteen colonies — a tiny population clustered primarily in my native Maryland and a few Pennsylvania counties. Yet within a few decades of the Founding, the great tides of European immigration that began to wash onto the shores of the new nation – those “huddled masses yearning to breathe free,” as they are memorialized on the Statue of Liberty — brought millions of Catholics to the New World: at first, Irish and Germans; later, Italians, Poles, Czechs, Slovaks, Ruthenians, and the many others who wove their lives, their traditions, and their aspirations into the rich tapestry of American democracy. Those 19th century immigrants felt the sting of anti-Catholic prejudice, even anti-Catholic violence. But notwithstanding that bigotry, Catholics have, I believe, almost always felt at home in these United States.

We have felt at home because we have thrived here; with the exception of immigrant Jews, no religious group has prospered more in America than the Catholic community. Yet Catholic “at-homeness” in the United States has had a deeper philosophical and moral texture. One of the great Catholic students of American democracy, Father John Courtney Murray, described that side of the Catholic experience of America in these terms, in We Hold These Truths: Catholic Reflections on the American Proposition, a book published fifty-two years ago:

In this second decade of the third millennium, there are many grave questions be debated in America: the question of the legal protection of innocent human life from conception until natural death; the question of long-term strategy and morally worthy tactics in the war against Islamist jihadism; the question of how we attend to the sick and how we manage immigration; the question of fitting public policy ends to fiscal means; the question of building an appropriate regulatory structure around the biotech revolution so that the new genetic knowledge leads to genuine human flourishing rather than to a stunted and manufactured humanity; the question of the health of American civil society and of the American national character; the list goes on and on. The very question of what should be on “the public policy agenda,” and what ought to be left to the private and independent sectors, is being as vigorously contested in our country today as at any time since the Great Depression and the New Deal. Yet amidst all this churning, the gravest question for our public culture is whether what Father Murray called the “American consensus” — that ensemble of “ethical and political principles drawn from the tradition of natural law” — still holds.

There are reasons to be concerned.

In October 2009, the nation’s political newspaper of record, the Washington Post, ran an editorial condemning what it termed the “extremist views” of a candidate for attorney general of Virginia who had suggested that the natural moral law was still a useful guide to public policy. The Post, determined to nail down the claim that homosexual orientation is the equivalent of race for purposes of U.S. civil rights law, deplored this as “a retrofit [of] the old language of racism, bias, and intolerance in a new context.” Yet the Post’s own claim was, to adopt its language, “extremist.” For it suggested that the label “bigot” ought to be applied to notable historical personalities who had appealed to the natural moral law in causes the Post would presumably regard as admirable: figures such as Thomas Jefferson, staking America’s claim to independent nationhood on “self-evident” moral truths derived from “the laws of nature”; or Martin Luther King, Jr., arguing in his Letter from Birmingham Jail that “an unjust law is a human law that is not rooted in eternal law and natural law”; or Pope John Paul II, who, at the United Nations in 1995, suggested that the truths of the natural moral law — “the moral logic which is built into human life,” as he put it — could serve as a universal “grammar” enabling cross-cultural dialogue.

Appeals to the natural moral law we can know by reason underwrote the American civil rights revolution. Appeals to that same natural moral law underwrite the pro-life movement, the successor to the civil rights movement. And appeals to the natural moral law have underwritten U.S. international human rights policy for the past thirty years. Until, that is, December 2009, when the Secretary of State of the United States, in a speech at Georgetown University, emptied the concept of religious freedom of everything save the “freedom to worship” while asserting, in a catalogue of what she claimed were fundamental international human rights, that people “must be free…to love in the way they choose” — which “choice” must, presumably, be protected by international human rights covenants and national and local civil rights laws.

This speech, as things turned out, was one harbinger of an assault on religious freedom that continues to this day — an assault that imagines “religious freedom” to be a kind of “privacy right” to certain leisure-time activities, but nothing more than that. This dramatic misconception of religious freedom was evident in the present administration’s attempt to re-write federal employment law by dissolving the “ministerial exemption” that had long protected the integrity of religious institutions. It was evident in the administration’s refusal to continue funding the U.S. bishops’ efforts to help women who had been victims of sex-trafficking (because the Church refused to provide abortion as part of that work). And it has been most dramatically evident in the January HHS mandate that requires all employers (including religious institutions with moral objections and private-sector employers with religiously-informed moral objections) to facilitate the provision of contraceptives, sterilizations, and abortifacient drugs like Plan B and Ella to their employees.

All of this suggests that one of the great challenges of your generation, my fellow-members of the Class of 2012 of Benedictine College, will be to rise to the defense of religious freedom in full. And, indeed, what could be a more apt challenge for the graduates of a college named in honor of the saint whose inspired vision and evangelical vision saved the civilization of the classical world when it was in danger of being lost? What better challenge for the graduates of Benedictine College, named for one of the patrons of Europe, whose life-work saved the West as a civilizational enterprise built from the fruitful interaction of Jerusalem, Athens, and Rome?

For the defense of religious freedom in full which you must mount must be both cultural — in the sense of arguments winsomely and persuasively made — and political, in that you must drive the sharp edge of truth into the sometimes hard soil of public policy.

What is this “religious freedom in full” that you must defend and advance?

It surely includes freedom of worship, but it must include more than that; the Kingdom of Saudi Arabia is content with freedom of worship, so long as the Christian worship in question takes place behind closed doors in the American embassy compound in Riyadh. Religious conviction is community-forming, and communities formed by religious conviction must be free, as communities and not simply as individuals, to make arguments and bring influence to bear in public life. If religiously informed moral argument is banned from the American public square, then the public square has become, not only naked, but undemocratic and intolerant. If, on the other hand, religiously informed moral argument is welcome in public life, then we have the possibility of rebuilding, not a sacred public square (a goal the Catholic Church rejected at the Second Vatican Council), but a civil public square, in which tolerance is rightly understood as differences engaged within a bond of civility formed by a mutual commitment to reason.

It is a matter of both political common sense and democratic etiquette that Catholics in public life should make our arguments in ways that our fellow-citizens, who may not share our theological premises, can engage and understand — which is to say, in our particular case, that Catholics should bring to bear in public life the moral truths we hold through arguments framed by the grammar and vocabulary of the natural moral law. That is what John Paul II did at the United Nations in 1979 and 1995. That is what Benedict XVI did at the in 2008 and in the German Bundestag in 2011. That is what the bishops of the United States, and lay Catholics in their millions, have done over the past four decades in defense of life. And if there are some who consider such appeals to the natural moral law a form of tarted-up bigotry, well, we shall simply have to inform them, politely but firmly, that they are mistaken, and then demonstrate why.

Religious freedom in full also means that communities of religious conviction and conscience must be free to conduct the works of charity in ways that reflect their conscientious convictions. This is neither the time nor the place to discuss the problems that have been posed by tying so much of Catholic social service work and Catholic health care to government funding — save, perhaps, to note that these problems did not exist before the Supreme Court erected a spurious “right to abortion” as the right-that-trumps-all-other-rights, and before courts and legislatures decided that it was within the state’s competence to redefine marriage and to compel others to accept that redefinition through the use of coercive state power. What can be said in this context, and what must be said, is that the rights of Catholic physicians, nurses, and other health care professionals are not second-class rights that can be trumped by other rights-claims; and any state that fails to acknowledge those rights of conscience has done grave damage to religious freedom rightly understood. The same can and must be said about any state that drives the Catholic Church out of certain forms of social service because the Church refuses to concede that the state has the competence to declare as “marriage” relationships that are manifestly not marriages.

My fellow-graduates, your defense of religious freedom is going to require the skills of reasoning and argument that you acquired here at Benedictine College. It is going to require that some of you accept the risk and challenge of public service in elective office. And it going to require all of you to support those who take, as their vocation, the defense and promotion of religious freedom in full.

This will be the work of a lifetime. But it must begin sooner rather than later, for the threats to religious freedom among us are great, and many of them are deeply embedded in postmodern American culture. This work will not be without cost. Some of you may suffer various forms of martyrdom in taking up this cause: the martyrdom of ridicule, of being labeled “intolerant” and “bigoted”; the martyrdom of career paths blocked and promotions denied because of your adherence to the moral truth of things; the martyrdom of political defeat, or a judicial case well-argued but lost. Fidelity to the truth can have its costs. Yet as Blessed John Paul II taught young people all over the world, those costs are worth paying because the truth sets us free in the deepest sense of human liberation. Thomas More, patron saint of Catholics in public life, was never more a free man than when he bent his neck to the executioner’s axe in free adherence to the truth.

Let us pray that it does not come to that for any of you, or indeed for any of us. But let us also be clear on the stakes for which your generation is playing, which are nothing less than the long-term integrity of American democracy. So: be the culture-forming heirs of St. Benedict that your education here has prepared you to be. Be the champions of religious freedom in full. In doing that, you will give America a new birth of freedom — freedom tethered to truth and ordered to goodness, freedom that sets us free in the noblest sense of human liberation.

Godspeed on your journey.

Delivered May 12, 2012 at Benedictine College, Atchison, Kansas.

{ 77 comments }

Pin It

The Supreme Court We Deserve

by Tim Kowal on April 11, 2012

imageIn one of his questions during oral arguments on the Affordable Care Act, Justice Kennedy observed the judicial presumption in favor of the constitutionality of federal statutes.  The presumption is a nod to the democratic process, which itself is generally the most decisive proxy we have for institutional legitimacy.  But it is not the proxy.  If it were, no review of “duly constituted and passed” laws would ever be necessary.  The Court review of even democratically passed laws insulates us from democratic tyranny—from majorities stripping the rights of the minority, or, in a fit of imprudence, trading inalienable rights for fashionable government services.  But the Court’s presumption in favor of constitutionality is not designed to root its decisions in legitimacy.  Rather, it aims to give its decisions the perception of legitimacy irrespective of whether those decisions are actually legitimate. 

Assuming the Court actually thinks this way (and based on the President’s recent remarks, there is reason to believe it does, at least to some extent), would upholding the Affordable Care Act increase or decrease Americans’ perception of the Court’s legitimacy?  I conclude the latter, and thus that the Court’s institutional incentives inclines it toward finding the Act unconstitutional. 

First, a few more thoughts about judicial legitimacy.  Why does the Court err on the side of perceived legitimacy rather than training its focus on actual legitimacy?  For one thing, the Court does not have special access to such things.  Judging is often hard, and if it comes to the wrong answer, better that it was first made by another branch of government closer to the people and thus the source of perceived legitimacy.  More importantly, the Court, like government generally, is a self-preserving institution.  Institutions derive no benefit by virtue of being actually “legitimate” or “right” or “just.”  They benefit from being perceived as those things, as citizens are more likely to accept its decisions.  Thus, there is no incentive inherent in the nature of the Court itself to arrive at actually legitimate results. 

imageThis is not to say that the human beings acting as judges have no incentive to reach actually legitimate results.  But for the Court as an institution, the only incentive is to get the result that will be perceived as legitimate, either immediately or at some point in the not-too-distant future.  (Because of its conservative nature and insulation from politics, the Court is permitted a much longer time horizon in this regard.  Thus, it may be to the Court’s advantage to hand down a ruling that may be unpopular in the short term, but that will make the Court appear prescient and worthy of trust in the long term.)

In short, the Court’s institutional incentives include perceived short-term legitimacy and perceived long-term legitimacy.  The only other possible motivation (excluding bad faith) is judges’ personal incentive to achieve actual legitimacy, whether in the individual decision, or in the justice system more broadly, or in society even more broadly.   Mileage may vary as to whether and to what extent these translate into perceived legitimacy. 

This may seem a cynical, nihilistic way of looking at the Court, but really it’s not.  By concerning itself with the perception of legitimacy, the Court must look to the views and deeply held beliefs of society.  These beliefs thus may form the basis for the Court’s decisions.  That is not to say the Court ought to pander to those beliefs merely to boost its legitimacy index.  But to the extent those beliefs are not internally self-contradictory (e.g., slavery versus the deeply held belief in individual liberty), it is appropriate for the Court to consider them. 

To maximize its perceived legitimacy, the Court must do more than reach a certain result.  Because of the nature of judicial power, the process and analysis that goes into reaching the result also count for a lot.  Thus, a professional, intellectual, and experienced Court may be able to achieve greater perceived legitimacy than one that is less so.  However, because the Court is primarily concerned with perceived legitimacy, intellectual rigor will take the Court only so far.  One can imagine brilliant judicial decisions written in what, to lay persons, might amount to a different language.  Decisions whose philosophical brilliance render them indecipherable to the public will count for little. 

The possible outcomes of the Affordable Care Act illustrate the point.  If, in upholding the individual mandate, the decision is too intellectually ambitious and convoluted, the Court may be perceived as having used philosophical abstractions to avoid its duty to review an unprecedented overstep of the federal government’s limited and enumerated power.  But if, in finding the individual mandate violates the Constitution, the decision is not ambitious and creative enough, the Court may be perceived as having feigned ignorance in order to deal a partisan blow to a sitting president’s signature domestic policy achievement. 

If it were somehow possible to rate the sophistication of judicial reasoning, we might insist that the Court’s decisions clock in at a certain level, say, a 5 on a scale of 1 to 10.  We might conclude that decisions rating below 5 are conspicuously incurious, and that ratings above 5 are conspicuously overzealous.  In either case, differing degrees of sophistication of judicial reasoning suggests the Court may be using just the right degree in a given case to reach a particular conclusion.  Observers would rightly conclude this is illegitimate.  In reality, of course, there is no such scale to rate the sophistication of judicial opinions.  Nonetheless, we can discuss whether creative rationales like those offered by Professor Jack Balkin would, if adopted by the Court, evidence conclusion-oriented reasoning. 

On the other hand, sophisticated or convoluted judicial decisions do not necessarily suggest a conclusion-oriented Court. There are three ways to explain a convoluted decision.  First, it is simply a hard case, and thus an intricate analysis itself is necessary to achieve perceived legitimacy.  In other words, the analysis itself is the basis of the perceived legitimacy.  This frequently happens in review of technocratic agency actions where the outcome itself often does not have much impact on the average citizen.  One might criticize agencies on the basis that they result in many convoluted court decisions, thereby undermining the perceived legitimacy both of the Court and the agencies. 

Second, the outcome that will be perceived as the most legitimate requires a convoluted analysis to get there.  In other words, the outcome is the basis of the perceived legitimacy.  This assumes that legitimacy is perceived principally in the outcome, or at least that the convolution will not significantly undermine that perception.  Whether the perceived legitimacy is to come in the short- or long-term is a judgment call the court must make. 

The third possible explanation for convoluted court opinions is that the Court is convinced in the objective rightness of the outcome.  Dred Scott v. Sandford and Roe v. Wade are examples; it can hardly be argued that the Court could have reasonably presumed either decision would elevate its esteem.  Relatedly, the Court may be convinced that the outcome, either despite of or in addition to its being objectively right, is necessary to the preservation of the state and thus the Court itself.  Brown v. Board is an example. 

All things being equal, then, it is in the Court’s interest—the interest of being perceived as legitimate—to avoid convoluted analyses whenever possible. 

Consider again the Court’s possible approach to the Affordable Care Act.  Even now, more than two years after the Act was passed, it fails to garner a majority of public support.  Thus, the Court is not likely to gain any perceived legitimacy in the short term by upholding it.  The longer term obviously is harder to predict, but certainly the Court could be perceived as having bent to pressure from the President, who dared the Court to strike down the Act just days after oral arguments.  In order to uphold the Act, the Court would have to engage in a somewhat convoluted and unprecedented analysis, or rely on New Deal-era precedent, itself at a nadir of perceived legitimacy. 

The only basis left to uphold the Act is if the Court concludes it is objectively legitimate.  This is a hard case to make for the individual mandate.  At best, it is an instrumental good in the sense that it helps overcome the moral hazard created by another federal mandate that health providers provide emergency services to uninsured patients.  It also still presupposes a terribly inefficient health care system in which tax incentives cause most health insurance to be tethered to employment.  A stronger case perhaps could be made that upholding health care legislation creating a universal single-payer system would be objectively legitimate.  It probably is not unfair to say that the individual mandate is something of a necessary evil in the service of an arguably objectively legitimate end of broadly accessible health coverage.  But it is hard to characterize it as objectively legitimate in its own right. 

Note that objective legitimacy has nothing necessarily to do with whether the decision comports with the text of the constitution, or with any other theory of judicial interpretation for that matter.  This is simply to be factored into the analysis of whether it is perceived as legitimate.  A population who doesn’t give a whit about constitutional fidelity will likely find its courts likewise caring very little.  Indeed, a population that cannot be bothered to care much about theories of constitutional construction, or consistency in constitutional construction, will have little basis on which to judge the legitimacy of judicial decisions. 

This may be why the President feels he can impact the outcome of Court’s decision, calling it “not an abstract argument” and “not even a close case.”  In fact, the “abstract arguments” have already been made in prior cases handed down during the New Deal, which have continuing legitimacy problems due to FDR’s court-packing scheme leading to “the switch in time that saved nine.”  Wickard v. Filburn, the prior case that the President was likely referring to in his recent comments, itself should not have been a close case, so out of step was it with the Commerce Clause and precedent at the time of publication.  Yet, through legal abstractions and convolutions, it provides cover for federal legislation touching on any activity that, under the “aggregation principle,” affects interstate commerce. 

If we don’t care about fidelity to the Constitution and legal processes, the Court won’t, either.  If we send the message to the Court that we will cease to regard it as legitimate if it does not simply rubber stamp popular legislation, or stamp out unpopular legislation, then over time, the Court, by operation of its institutional incentives, will have no choice but to respond to the signals of an intellectually shallow public.

This would be a decline of American politics.  It would mark the end of the studious and faithful adherence to a logical and consistent continuum in the development of law.  It would usher in the flippant selection among various and disparate bodies of disjointed legal precedent to deliver the result demanded by impatient and intellectually unserious consumers of government services.  A public who is taken in by the President’s partisan catcalling of his coequal branch of government has no right to demand better of judicial decisions. 

{ 9 comments }

Pin It

The World American Dysfunction Made

by Tim Kowal on March 8, 2012

imageMilitary policy is one of those subjects that requires certain bona fides to discuss them with any level of sophistication.  It crosses history, sociology, military history and strategy, each of which is a serious study in its own right, and yet all of which are necessary to forming an opinion on military policy worth listening to.  I certainly do not meet that standard.  I didn’t even stay at a Holiday Inn Express last night.  But I did just finish reading Robert Kagan’s brisk new book, The World America Made, and am more than happy to pass along some of his sophisticated insights.

What first got me eager to discuss Kagan’s book was an intersection between his observations about democracy’s struggle to take hold internationally and some discussions here about our own democracy.  I recently asked why many left-leaning, big-government types seem to care more about outcomes than process, and I also took issue with Justice Ginsburg’s statements suggesting our Constitution is outmoded.  While the discussion about outcomes may change with the times, the discussion about process doesn’t.  We might dispute whether the Constitution got rights right, but we don’t often tussle over whether powers should be separated, or whether life, liberty, or property should be deprived without due process of law.  And yet these procedural elements define the majority of the Constitution’s work.  Disparaging it suggests that we are no longer worried about slipping back into a tyrannical government in which power is concentrated in a small group of people and wielded for the benefit of friends of the elite.  (Depending on your definition, this may have already occurred.)

But Kagan argues it is extremely unwise to take democracy for granted.  Democracy is not a foregone conclusion; it is not our manifest destiny; and it is not the natural product of human political evolution.  By the end of the 19th century, Kagan recounts, there had never been more than five democracies among the world’s nations.  By 1900 there were suddenly a dozen, and that number doubled again after WWI.  But then a “reverse wave” washed over the world in the ‘20s and ‘30s, wiping out democracy’s four decades of gains by the eve of WWII.  What accounts for democracy’s reversal of fortune?  In the face of economic instability and social and political pressures of industrialism, “fascist governments look stronger, more energetic and efficient, and more capable of providing reassurance in troubled times,” says Kagan.  They are arguments that will sound familiar to observers of contemporary American domestic policy.

And yet, it may be America’s political dysfunctionalism—its antithesis to the “stronger, more energetic and efficient, and more capable” totalitarian governments—that made it such a successful world power since the end of WWII. “It is Americans’ evident reluctance to wield power, their obvious aversion to the responsibilities of ruling others—more than their commitment to laws and institutions—that makes the United States for many nations a tolerable if often misguided hegemon.” If the U.S. were an effective world leader, Kagan seems to be saying, its leadership might not be so unchallenged.  And liberal political and economic principles would be less established in the world.

The year 1945—not coincidentally, Kagan notes, the birth date of the American world order—marks the beginning of the end of great-power wars. “The power of the United States has been the biggest factor in the preservation of great-power peace.” The world’s great powers from then forward would comport themselves much differently because of the U.S.  Many nations welcome the opportunity to free-ride on America’s willingness to police the world.  After WWII, Europeans wanted the U.S. military standing between them and the Red Army and a revived Germany. NATO was Europe’s “invitation to empire” to the U.S.  By the ‘90s, the world America made saw the number of democracies explode to 120, covering half the world’s population.

There is no doubt that the U.S. could afford to significantly reduce its military budget without relinquishing its title as the world’s dominant superpower.  But making America a less-clear hegemon heightens the possibility for challenges. “One of the main causes of war throughout history has been a rough parity of power that leaves nations in doubt about who is stronger.…There is no better recipe for great-power peace than certainty about who holds the upper hand.”  As China accelerates its militarization while it poises to overtake the U.S. as the world’s largest economy, a declining U.S. military suggests we could reach that “rough parity” sooner rather than later.

Moreover, deep cuts in military spending may prove short-sighted.  Although Kagan questions claims of American decline, no one can question China’s ascendancy.  That ascendancy poses a threat to liberal economies since China, though wealthy in terms of GDP, is poor in terms of per capita GDP.  “This will make for a historically unique situation,” says Kagan, since the world’s largest economies have typically also been the richest.  The mature economies of such nations have little to gain from protectionist measures.  “China’s protectionist phase,” on the other hand, “could coincide with its rise to dominance of the global economy.”  Says Kagan, “[t]hat would be unprecedented.”

Coming finally to the question of whether Americans simply spend way too much on military action abroad, Kagan has this to say:

Some of the costs of reducing the American role in the world are, of course, unquantifiable: What is it worth to Americans to live in a world dominated by democracies rather than by autocracies? But some of the potential costs could be measured, if anyone cared to try. For instance, if the decline of American military power produced an unraveling of the international economic order that American power has helped sustain; if trade routes and waterways ceased to be as secure, because the U.S. Navy was no longer able to defend them; if regional wars broke out among great powers because they were no longer constrained by the American superpower; if American allies were attacked because the United States appeared unable to come to their defense; if the generally free and open nature of the international system became less so—there would be measurable costs. And it is not too far-fetched to imagine that these costs would be far greater than the savings gained by cutting the defense and foreign aid budgets by $100 billion a year.

As I led with, I lack the bona fides to add or detract much from this.  So let me make a meta-observation.  I admit to being one of those conservatives who hisses at “big government” at home but cheers “big government” when it promotes our interests abroad.  Given Kagan’s observations, however, perhaps that’s not inconsistent.  True, America wields a big stick in the world.  But it wields it clumsily, taking imprecise whacks at different ideas for different reasons.   Despite an economic and military might that would make any dictator green with envy, the structural dysfunction our Constitutional democracy imposes renders our government chronically unenergetic, inefficient, and ultimately incapable of acting like a totalitarian.  Consider again Kagan’s description about America’s foreign policy, and how it comports almost exactly with what conservatives would like to see in American domestic policy:  an “evident reluctance to wield power, their obvious aversion to the responsibilities of ruling others—more than their commitment to laws and institutions.”

Big government engenders distrust not necessarily because it’s big.  It engenders distrust when it gets comfortable wielding power and sheds its aversion to the responsibility of ruling others.  That’s true of our nation’s role in governing the world, and it’s true of its role in governing us.

[Cross-posted at the main page]

{ 0 comments }

Pin It

Five questions for legal positivists…

by Tim Kowal on February 22, 2012

I’ve enjoyed our recent discussions on the nature of rights and laws, as they’ve gotten me considering old topics in a new light.  New wine in old skins, or old wine in new skins, something like that.  (Does that metaphor still mean anything? Wineskins—is that still a thing?)  So that I’m not the only one afflicted with these nagging questions, I’m putting these musings to you.  If you’re a legal positivist or play one on tv, try answering some or all of the following questions.  I’d be interested in your thoughts. 

1. If law is simply a positive statement enacted by government, then does the concept of a sovereign make any sense? Wouldn’t a positive statement establishing a sovereign be a prerequisite, and if so, who could possibly make such a statement?

2. If you answered no to the question above, and if our founding documents do indeed establish the people as the sovereign, does that settle the question that the U.S. is definitely not a positivist state? 

3. Positive law bases the legitimacy of law upon the promulgation through procedures (established by law!) and made known to those to whom the law is meant to apply.  This suggests that, under positive law theory, legitimacy is at least loosely based on principles of representation, notice, and consent, among others.  From where are these principles derived?  How does positivism avoid an infinite regression?

4. Under positivism, is the term “basic human rights” a misnomer?  I.e., no rights can possibly be “basic,” since only the institution that promulgates law—and thus creates “rights”—could ever be considered basic; rights, if any there be, are merely derivative.  If not, what does it mean for a right to be “basic” if not to the effect that it precedes or is a precondition of government? 

5a. I asked Burt a variation of the following question, but want to put it to the group: What is an act of the legislature, passed by all due procedures but that blatantly contradicts the First Amendment’s prohibition against laws abridging the freedom of speech such that it’s not even a close call?  For example, a law prohibiting criticism of a sitting President.  Even for a positivist, couldn’t it be said that compliance with the constitution is one of the prerequisites—part of due process itself—to becoming a law? 

5b. Same question, but instead of blatantly contradicting the First Amendment, it was passed only by the House (not the Senate) when the President signed it, thus violating the Constitution’s bicameralism and presentment clause.  Is this a law?  Is it possible to answer this question differently from the one preceding?

{ 45 comments }

Pin It

Virginia’s “Foolish” Personhood Law? A look under the hood

by Tom Van Dyke on February 20, 2012

Via LoOG regular Mr. Gregniak: Virginia’s House of Delegates has just passed a fetal personhood law.

Virginia’s Foolish Personhood Law

DOUG MATACONIS · SUNDAY, FEBRUARY 19, 2012 ·

Virginia’s legislature was very busy last week. Not only did they pass a bill that will require every woman seeking an abortion to undergo an unnecessary and invasive medical procedure, but the House of Delegates also passed a bill that purports to define life as beginning at the moment of conception…

Foolish? Let’s see.

First, it’s interesting to see the left sweating slippery slopes for a change. I rather like the law as an obstacle to “progress” in that monkey-wrench sort of way, granting the unborn a status above zero.

Now, I’m not big on the “personhood” tactic, which failed even in über-right Mississippi—it’s possible to oppose abortion without granting a zygote full citizenship. A zygote isn’t a baby, at least not yet, so it’s wack to pretend it is.

On the other hand, this Virginia law explicitly leaves Roe v. Wade unchallenged:

subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court

Roe is in the clear, for now, even if the law goes through. This is not a direct, frontal assault by a state against the federal government. This tactic does not work.

What the law’s effect might actually be is hard for even its critics to say.

[Delegate Bob] Marshall said his bill, modeled after legislation in Missouri, would not affect birth control, miscarriages or abortions but would affect the way that courts define a person. For example, parents could receive damages for the death of a fetus in a wrongful death lawsuit.

Which is sort of like the Laci and Connor Peterson trial, where the Laci’s murderer husband Scott was also found guilty of second degree murder for killing Connor, the fetus, their child.

A fetus with a name, Connor, and accordingly, with a certain “personhood” status.

This law is all about philosophical positioning, it seems to me, and there’s nothing wrong with that. I expect the courts won’t allow the fetus all the way to “personhood,” but these things make it harder for the courts to allow the fetus zero status, like a fingernail.

There are very few pro-choicers who would accept the challenge of arguing this exposed position—the less defensible rhetorical and moral ground, the lower ground—and that the baby in Laci’s womb that Scott Peterson killed was a nothing, no more than a fingernail.

That simply will not ring true, no matter how great your rhetorical skill: Scott Peterson killed something of moral status and significance, a someone of some sort.

We’re all aware of the usual arguments about abortion and a “woman’s body” etc. and that line of argument and its accompanying rhetoric have been well-honed and road-tested, and bear up well if we stick to the script.

But I think there are few who would welcome having to argue that what—who?—Scott Peterson killed in his wife Laci’s womb was a nothing, of no moral significance. Few of us believe that, and this is the purpose of this new Virginia law, if I read their intent correctly, to oblige pro-choicers to argue exactly that, and to be put on the moral and philosophical back foot for a change.

Be it enacted by the General Assembly of Virginia:
1. § 1. The life of each human being begins at conception.

Well, actually, that’s indisputably true. This does not say that every zygote is a full-fledged American citizen.

§ 2. Unborn children have protectable interests in life, health, and well-being.

That’s rather tame on its face. But rather radical in the present controversy. It’s said that he who defines the debate tends to win it. As a formal debate topic, the Virginia legislature has framed it thus:

Proposed: Unborn children have protectable interests in life, health, and well-being.

This explicitly argues the pro-life position, not the anti-abortion one, and from firmer if not higher ground. These country bumpkins in the Commonwealth of Virginia are perhaps not as “foolish” as they look.

{ 26 comments }

Pin It

Not all “laws” are laws

by Tim Kowal on February 17, 2012

To those of you who think that all law is mere convention, consider engaging Tim Sandefur’s well-presented defense of the Substantive Due Process doctrine over at Cato Unbound.  Here’s Tim’s response to Larry Rosenthal (my First Amendment professor at Chapman Law):

A self-contradiction is nothing; it is null; it is no more a law than it is a pigeon or a sneeze, and a court is therefore justified in disregarding it, even if passed with full procedural formalities. Yet nothing in the Constitution expressly forbids self-contradictory statutes. This prohibition is implicit–embedded in the logic of law itself. As the framers were aware, Francis Bacon made the same point when explaining that a legislature cannot create an unrepealable law (perpetua lex est nullam legem). Nothing in the Constitution expressly forbids unrepealable statutes. Yet such things are prohibited by what Bacon called their “impertinency,” or by what Hamilton called “the nature and reason of the thing.” There are limits on legislative authority imposed by the logic of law itself. That’s why even Blackstone, who believed that government possessed “supreme, irresistible, absolute authority” still admitted it could not do something that is “naturally impossible.” To make an arbitrary, ipse dixit, unauthorized use of force into a “law” is naturally impossible.

If one concedes this much, then one must admit that mere promulgation is not sufficient to make something a “law.” Instead, the legal status of a promulgated rule must be determined at least in part by its content. That is, by its substance: we must ask what a law is, and determine whether something containing the substantive provisions in question meets that definition. That just is substantive due process of law.

A constitution does not tell us what a right is, what a law is, or how to reason.  A constitution will be utterly meaningless to a people who either cannot or will not admit these basic notions as inhering in its very idea. 

{ 13 comments }

Pin It

Pondering Positive Rights

by Tim Kowal on February 10, 2012

In light of some of the responses to the League’s constitutional convention on the main page, I’ve been doing some thinking on the subject of so-called positive rights and want to take the pulse of readers here.  To those of you who believe there is or ought to be a constitutional right to health care, do you believe this right exists outside the context of the state? That is, if we suddenly found ourselves stranded on a desert island with no government or formal laws, do I nonetheless have a right to receive medical services from you similar to your right against my stealing your possessions or causing you physical harm? What if you need my shirt to strain your drinking water–part of your "rights" to basic food, water, and health care? Can negative and positive rights co-exist?

You can see where I’m going with this: some kind of things are appropriately called basic, or constitutional, rights, and others are something else. But I genuinely want to understand the case for putting positive rights in a constitution, and how they might interact with or impact negative rights.

[In light of some of the initial comments, I added some additional thoughts and restarted the discussion at the main page.]

{ 27 comments }

Pin It

Our Unlovable Constitution

by Tim Kowal on February 7, 2012

A new study by David S. Law and Mila Versteeg concludes that the world’s democracies are no longer emulating the U.S. Constitution, and are instead resorting to other templates that guarantee more “generic building blocks of global rights constitutionalism,” including “women’s rights,” “the right to social security, the right to health care, and the right to food.”  The study suggests that the U.S., “rooted in a libertarian constitutional tradition that is inherently antithetical to the notion of positive rights,” is in danger of becoming a “legal backwater.” 

Supreme Court Justice Ruth Bader Ginsburg seems to agree.  According to a recent interview, Justice Ginsburg said “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said.  She recommends the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights. (Via NY Times.)  Law and Versteeg similarly find that “the average constitution has increasingly grown to resemble the International Covenant on Civil and Political Rights and the European Convention on Human Rights, as well as the African Charter on Human and Peoples’ Rights and the Charter of Civil Society for the Caribbean Community.” 

The other “generic building blocks” Law and Versteeg conclude are missing from the U.S. Constitution include “Right to work,” “Right to unionize and/or strike,” “Physical needs rights,” “Right to education,” and “Limits on property rights” (e.g., “property may be limited by its social function”).  Other popular “rights” include “Citizen duties,” “Right to a healthy environment,” “Other worker’s rights,” and “Artistic freedom.”

Two observations:

First, it is not clear that Americans ought to care whether other countries use the U.S. Constitution as a template.  I can think of just two possible arguments why they should:  (1) conformity is somehow good for its on sake; or (2) other countries’ constitutions are somehow substantively better than ours, and thus we should bring ours up to snuff.  The study does not raise either argument, but it is hard assume the authors have no opinion on the matter and yet proceeded to spill 80 pages of ink painstakingly studying the issue.  This is the way modern social science is done, I understand:  treat all facts as created equal and avoid offering any overt “value judgments.”  The authors’ silence on the values question is so deafening, though, that their refusal to simply lay them on the table is a perhaps unexpected distraction. 

Second, neither the study nor Justice Ginsburg address the role the Court has played in modifying the constitution and preventing formal amendments.  The Constitution used to be formally amended more frequently than it is today.  It is counter-intuitive that it is now seldom amended even as people tend to understand less and less of its “original” meaning.  As I expressed in a recent discussion with James Hanley, by now, the meaning of the Constitution must seem very distant to most Americans.  Most discussions about the Constitution do not even quote its text.  Originalism makes the Constitution distant because it means people need a history degree before they can understand it.  Living constitutionalism makes it distant because it means people need a law degree to understand it.

If Americans are taught that they can’t understand what their Constitution says—or worse, that it has no fixed meaning at all—then they will never agitate for change.  Constitutional participation will never be more than fighting over who gets to nominate and approve Supreme Court justices—the delegates to what Woodrow Wilson called our “constitutional convention in continuous session.”  A recent poll (which I can’t seem to find now) reported the oft-repeated observation that of all American political institutions, the courts are by far the most trusted.  But the poll went on to observe that most Americans believe that, when courts find rights in the Constitution, the rights are really in there and not just spun out of judicial philosophy.  If Americans are astray in their constitutional understanding, they’ve been led there.  

Despite this disconnect between modern Americans and their Constitution, we’ve little hope of amending it.  Even if the breathtaking amount of political will could be mustered, it can be bested or undone by a crack legal team and a carefully selected litigation strategy, or by a willful executive armed with a good crisis to forge a “constitutional moment” that changes our constitutional presumptions without any formal writing at all. 

Americans thus have little reason to feel they can understand the constitution, and less reason to feel they can change it. 

It seems unfair, then, for Justice Ginsburg to criticize the Constitution.  That document has proven fertile ground for her and her living constitutionalist colleagues.  And its ossification owes in no small part to legal and judicial philosophies to which she subscribes. 

Not that this is all the Court’s fault.  The great sin of slavery brought us Civil War, and with it a remade Constitution.  This, even before the progressive and liberal legal revolutions of the 20th century, made it almost impossible to know exactly what would be required by that new constitution, rededicated to the proposition that all men are created equal.  But it is still overwhelmingly true that Americans swear fealty to the original principles of the Declaration and the Constitution—that the basic unit of our political system is the individual and not the state; that rights are something in us and not given to us; that government is best which governs least.  Those American principles seem conspicuously absent from the constitutions in Law and Versteeg’s study.  If that fact has any effect at all on Americans, it will likely only cause them to redouble their commitment.

{ 61 comments }

Pin It

Can the Occupy Movement Tackle Crony Capitalism?

by Tim Kowal on October 29, 2011

In a comment on Shawn Gude’s previous post on the main page about the Occupy movement, I asked who the “1%” is and whether Occupy protesters were primarily aggrieved about “Wall Street,” or whether they were aggrieved about “wealth inequality” more generally.  Commenter Michael Drew referred me to this post at Rortybomb entitled “Who are the 1%, and what do they do for a living?” purporting to get right to the point.  Here’s the operative chart:

These numbers show that the wealth share of CEOs and other private sector executives has actually decreased almost 14% since 1979.  In contrast, the share of financiers increased more than 80%.  Yet the rest of the Rortybomb piece lumps business leaders into the same category as financiers.  Why? 

The most obvious explanation is that the Occupy movement is primarily organized around a moral commitment to a particular definition of “fairness” oriented around results rather than process.  I previously outlined the problems with drawing a necessary connection between wealth inequality and “unfairness” or “injustice.”  But I have also discussed the real problem of power inequality:

There is nothing unjust about economic inequality.  What does become unjust, however, is when those who benefit from an organized system of laws to amass wealth[ ] then use that wealth to abuse that system of laws.  What results, then, is not just wealth inequality (which I contend is no sin by itself), but power inequality.  Where power inequality exists in great enough measure, a political system can no longer sufficiently guarantee procedural fairness.  And where there is no guarantee of procedural fairness, wealth inequality suddenly becomes a real injustice—inequality of wealth is only just to the extent it is the result of free choices, and free choice cannot be presumed where there exists an inequality of power.

Pointing generally to wealth inequality fails to take into account the threshold-earner phenomenon and the clarion call of cultural critics to work less and eschew building financial fortune and to spend more time in non-economic activities. It also fails to account for the fact that, in real terms, the poor have experienced significant economic improvement in the past 30 years. The rest of us, too, get the benefit of the new technology and other cheap consumer goods that corporations invent, develop, manufacture, and distribute, many of which undeniably improve our lives. I previously made and developed these and other points on these pages in my review of Paul Krugman’s book.

If power inequality—e.g., “crony capitalism”—is the problem, does the Occupy movement have a solution?  Simply more regulation and more central control won’t get us there.  In fact, that road may wind up making matters worse.  Cronyism is a two way street.  True, the bigger an industry gets, the more resources it can devote to rent-seeking.  But that has nothing to do with the incentive to rent-seek.  A powerful interest has little reason to buy influence in a weak government.  The problem of faction and “crony capitalism” thus gets worse as government becomes more powerful and centralized. 

The controversial 2005 Supreme Court opinion in Kelo v. New London provides a worthwhile illustration.  The Supreme Court’s failure to enforce the “public use” clause of the Fifth Amendment, a structural check against the influence of factions, has led directly to more crony capitalism.  For example, corporations’ and developers’ wealth had little to do with the crony capitalism that befell Suzette Kelo when her home was taken by the city council of New London, Connecticut at the behest of the Pfizer Corporation—who later scrapped their plans and abandoned her bulldozed neighborhood as a blighted vacant lot.  Had the Court faithfully applied the Constitution according to its plain language—so as not to give near-unfettered discretion to local governments—Pfizer would have had no reason to rent-seek in the first place.  Had the law of the land clearly prohibited the taking of property from one private party to hand over to a more politically favored private party, Pfizer would not have bothered asking the town council to exercise a power it clearly didn’t have.

Fixing the damage done by Kelo is relatively straightforward because we know where the system failed.  Constitutional checks were already in place but the Supreme Court ignored them.  The Court can and at some point will reverse Kelo. 

The rest of our problems concerning economic and regulatory policy are more difficult because we’ve been operating off book.  Who do we blame for our financial crisis?  “Fat cats”?  “Crony capitalists”?  “Corrupt politicians”?  These are not new phenomenon.  They were baked in the cake as we evolved our federal government by way of court decisions and “Constitutional Moments.”  We got the progress and economic growth hoped for, but we failed to install structural checks against the downsides.  No wonder “class warfare” is brewing:  populist forces are rushing to fill the vacuum created by having altered the balance of governmental power that has given factions  more access to the levers. 

Somewhere under the din of bongos, the Occupy movement has some legitimate grievances.  However, a generalized grievance of against wealth disparity will not get us the structural checks we’ve been lacking.  The movement could take up a more intellectually cohesive position by rallying against centralized economic and financial planning and restoring America to a more constitutional model.  Unless it does that, I predict we’ll see some legislative reforms pandering to the vague demands of the movement, but little in the way of serious reform. 

[Cross-posted at the main page]

{ 1 comment }

← Previous Entries