CONSTITUTIONAL CAPITALISM

JOHN TOMASI

(Draft of 8/23/08: Please do not circulate or cite.)

Chapter 1: The Myth of Modern Liberalism

Of Myths, Major and Minor

I have been a parent and a professor for almost exactly the same number of years. As a parent, my wife Amy and I are raising two children---Peter and Lydia. As a professor, I have taught political thought to hundreds of students at Brown University. Most of the students studying politics with me have been undergraduates, but a good and growing number are graduate students working toward their Ph.D.s.

From the beginning, I have noticed similarities between the members of these two groups---my children and my students interested in political thought. The members of both groups are curious by disposition and are blessed—developmentally at least---with enviously high levels of energy. Members of each group demonstrate a wonderful flexibility of mind, a capacity for the unexpected insight and, at their best, a certain purity of heart.1 But there is a further similarity between my growing children and my students of politics that most striking to me: both groups are remarkably vulnerable to accepting myth as fact.

1 As my children were growing, they believed fervently in many myths. For example, there was the myth about an elderly local man who often sat smoking cigarettes on a curb outside a local fish market. This man cut a striking figure, with a worn Portuguese-style barrette riding low across his brow and enormous hands, as broad as a lobster’s claws. But this man’s most intriguing physical feature---to my children at least---was his prominently missing right front tooth. The story, which I often heard my children relate in hushed tones to friends in the back seat of our car, was that this man was the last of a long line of successful fishermen on Narragansett Bay. This family had a ring, passed through the generations from father to son, which brought their nets great luck---luck the family would continue to enjoy on the condition that the ring be worn only during time spent ashore and never be taken out on the bay. One morning, long ago, this man had forgotten to remove the ring before pushing off in his skiff for his morning work. His first catch of the day included a massive striped bass. While hauling the slippery monster into his boat, the fish pulled the ring off his finger and escaped into the sea. The next day, while eating fish and chips at a local clam shack, he found his ring-- in the midst of his batter-fried cod fillet. While thus recovering his ring, he lost not only his right front tooth but his family’s piscatorial luck. Unable to catch fish, he had ever since spent his days outside the local fish market, wistfully smoking and wringing his powerful hands.

My children believed many such myths. But the terrain of their young imaginations was dominated by one towering myth. This myth was so powerful, so vivid, so relied upon, that belief in it seemed to enable belief in

2 all the lesser myths. For my children, growing up in a mixed Catholic/secular household as they did, the master myth of their youth was that of Santa Claus---an elderly, overweight, hirsute, polar, Caucasian dandy, said to fly around world in a sleigh, climb down chimneys, and precisely deliver batches of requested toys, at least to good little girls and boys.

My children are not stupid. How could they believe such a tale? How could they continue believing it long after they learned that reindeer are large Laplandic mammals that can barely run let alone fly, that even the best delivery companies routinely mess up the simplest of orders, and that the chimney in our house is blocked by a flue? Yet for years they accepted this unlikely story as fact. They did this, I suppose, because they first heard the tale from the persons upon whom they relied as authorities in such foundational matters—their mother and me. Further, they grew up surrounded by friends most of whom had heard this story from the authority figures in their lives. The members of this peer group reinforced in one another belief in this tale. Later, worries about some parts of this myth began seeping into my children’s private thoughts [“Why doesn’t Santa visit the home of Eli Zeltzer? After all, Eli is a (reasonably) good boy.” “How did Santa get that trampoline down our chimney?”]. Their faith was further shaken—and ultimately broken---by their increasingly frequent encounters with peers eager to explode the myth. But for years the myth had remarkable staying power: my children wanted the myth to be true. The myth made their lives simpler. It provided them with a role to play during the run up to

3 Christmas day. The myth provided comfort. It shielded them from responsibilities and thoughts they did not want to think.

My students in political thought, at both the graduate and undergraduate level, are also vulnerable to the lure of myth. There are many minor myths prevalent among them. For example, there is the story about how a famous contemporary political and legal scholar—who shall remain nameless here-- -won the Rhodes scholarship that launched his glittering career. According to the story, this scholar as a youth had been a very bright spark but an equally poor athlete. As a child, he had thick glasses, poor coordination, and---on my students’ telling at least---was always picked dead last for school-yard games. A lack of physical prowess is no disability for an aspiring academic, but it was a problem for someone hoping to win a Rhodes scholarship—an honor traditionally reserved for the brainy and burly. Later, when on the merits of his stellar academic record this person was invited to the interview stage of the Rhodes competition, he was clever enough to understand that he had a problem. He responded the way any good academic would: he went immediately to the local Library. There he took out a dozen books about tennis and memorized them in every detail. Throughout his interviews, no matter what the question, he cheerfully turned the topic to tennis. Afterward, when the committee met to evaluate the candidates, someone mentioned how strange it was that one of the candidates seemed to have nothing in his head but tennis, tennis, and more tennis. Curious at how such a mono-dimensional candidate could have made it to the interview stage, they dug up his paper dossier---and found a transcript heavy with A’s. Within the minds of the selection committee the

4 hoped-for equation thus fell neatly into place: “Dumb Jock” plus “Bright Spark” equals …“Rhodes Scholar.”

But, as with my children, so too with my students, there is a dominant, or if you like, a master myth that dominates their thinking about politics. This is a myth about the structure and nature of debates about political ideology in contemporary society. It concerns the relationship of the moral ideal one affirms and the range of political institutions that one might advocate in pursuit of that ideal.

In particular, this myth insists that a moral commitment to a social ideal that many people find attractive requires a commitment to a set of institutional structures that are claimed uniquely to realize that ideal---institutional structures that, ironically, have become increasingly worrying to people in actual liberal societies. The social ideal that many people find attractive is the ideal of social justice. The set of institutional arrangements that one might permissibly advocate in pursue that ideal, we are told, are all and only those political regime-types that march under the banner of social democracy.

I shall have much to say about the requirements of social justice, and about the nature of social democracy, in this book. For now though, by “social justice” I mean a conception of justice that is essentially social in nature. In the liberal context, principles of social justice guarantee certain liberties of

5 citizens, but also include guarantees about the distribution of goods across the society. Considered socially, justice is a standard that requires that designers of political structures take responsibility for the effects of political decisions on the life prospects of citizens across the full spectrum of social concerns: economic, cultural, familial as well as the properly political. In the liberal context, a concern for social justice requires that the liberal state guarantee not only the formal equality of citizens, but takes responsibility for providing citizens with substantive equality as well. Liberals who are committed to social justice take political responsibility for the full experience of citizens, seeking to create and maintain the social conditions under which citizens can develop the capacities they have as free individuals committed to sharing a social world with one another.

Like social justice, the term social democracy has a number of meanings. By “social democracy,” I mean a range of regime-types that, we are told, are uniquely fitted to realize the values of social justice under modern conditions. This range of regimes is usually said to begin on the leftward edges of welfare-state liberalism. It runs robustly through mixed socialist- capitalist regimes, such as property-owning democracy, and extends out to include various forms of liberal socialism. [brief descriptions: welfarism, income transfers; POD, property transfers; liberal socialism, worker- managed firms].

Social democratic regimes, in all their variety, have an uncomfortable, if not openly hostile, relationship with capitalism. Advocates of social democracy

6 reject the strong economic liberties, and the resulting limitations on legislative power, on which more robustly capitalist societies rely. Instead of entrusting social construction primarily to the actions of individuals in competitive, rule-governed markets, social democrats look to deliberative political bodies as primary motors of social construction. Whereas capitalist societies rely on the constitutional entrenchment of economic liberties to limit the scope of government activities, legislative liberals assign less weight to the the economic liberties of citizens. Instead, social democracies are marked by the expansive role they assign to legislative and administrative bodies in economic affairs. According to social democrats, such bodies must be empowered to craft particular economic policies, programs and regulations in direct pursuit of the ideal of social justice.

The master idea I am describing, the idea that dominates the minds of students of politics today, is that a certain relationship obtains between the ideal of social justice and the institutional regimes of social democracy. That relationship is this: a moral commitment to the ideal of social justice requires a political commitment to the institutions of social democracy. So too, a rejection of the institutional forms of social democracy bespeaks a rejection of value of social justice. [[If you are foundationally committed to social justice, you must ordinarily support political parties of the left. If you support political parties of the right, your commitment to social justice is immediately in doubt.2]]

7 Among students today, therefore, a moral commitment to social justice is widely thought to require a commitment to the institutions of social democracy. Within the context of liberalism, social justice and social democracy are linked not only tightly but exclusively.

Social justice and social democracy are uniquely linked. This idea could be analyzed and discussed wholly in conceptual terms, and thus without any discussion of liberalism’s intellectual history. However, with this particular idea, the path of intellectual development lends immediate plausibility to the idea itself. To fully understand the power of this idea, therefore, it is useful to consider the historical narrative in which the idea is embedded. After all, the history of liberal thought, like the history of many actual liberal societies, is usually described as a tale of two great historical stages. There was an early classical stage---defended by thinkers such as Adam Smith and made manifest as a practical program of political life in England and America during the 18th and 19th centuries. Classical liberalism was then displaced by modern liberalism. Initiated most notably by Progressive thinkers in the period 1880-1920, liberalism became dominant as a political program with FDR’s New Deal in America and ran virtually unchallenged at least through Lyndon Johnson’s idea of the Great Society. Intellectually rooted in Progressive era thinkers such as T.H. Green and L.T. Hobhouse and developed by scholars such as John Dewey, modern liberalism catapulted to its present position of intellectual dominance with the publication of John Rawls’s A Theory of Justice and the resulting explosion of scholarship in support of the modern liberal approach. Rawls introduced the technical mutations by which the modern form of liberalism was able to

8 morally differentiate itself from the old. In the decades since, modern liberalism, with its commitment to substantive equality and its expansive conception of the legislative activity, has propagated with ever greater successful among the population of elite political thinkers. Viewed purely from a moral perspective, the social-democratic institutions of modern liberalism are widely regarded as fit, super fit.

Because the “classical” and the “modern” emerged in this sequence, it is difficult to think of the two positions as merely two conceptual possibilities, each offered to us on equal footing with the other. Instead, the history of liberal thought, and the very names we use to describe the two visions of liberalism, makes it natural for us to think of these two approaches as standing in an evolutionary relationship to each other. Classical liberals rejected or were unaware of the idea of social justice. They understood the liberal commitment to equal freedom in purely formal terms. For that reason, they advocated an enthusiastically capitalist interpretation liberal good-governance. Modern liberals came to accept the idea of social justice-- -indeed, they invented or at least made explicit that idea. Impressed by the idea that people need resources if their freedoms are to be valuable, they came to see the requirements of equal freedom in substantive rather than purely formal terms. Modern liberals thus advocate a more active and expansive role for the liberal state, especially in economic matters. Modern liberals advocate the institutions of social democracy, that is, because those institutions, uniquely among liberal regime proposals, aim at achieving social justice.

9 In this way, the history of ideas lends great support to the idea that the capitalist and the social democratic interpretations of liberalism stand in moral evolutionary relationship to each other. That idea helps to secure the morally dominant position currently occupied by modern liberalism. Our awareness of liberalism’s intellectual history makes it difficult for us to evaluate the choice between the capitalistic and the social democratic versions of liberalism as though we were being offered a straight-up choice between “Liberalism: Version A” and “Liberalism: Version B.” Instead, the choice that comes down to us is heavily encumbered by the claims of evolutionary superiority that are entwined with intellectual development of the modern liberal view. For all these reasons, the choice between capitalist and social democratic liberalism is presented as a choice between a stone- age view and its morally evolved offspring: cro-magnon liberalism vs. liberalismus sapiens sapiens.

On this evolutionary view, there is nothing obviously objectionable about the ideological imbalance that pervades the contemporary academy.3 This imbalance merely reflects what evolutionary biologists call selection-bias and there is nothing problematic about that (a species, after all, is an interbreeding population). The myth of modern liberalism gives us every reason to believe that, when it comes to contemporary political thought at least, excellence is species-specific. Within the intellectual environment of the academy today, a political project’s “importance” is effectively revealed by the depth of that project’s understanding of, and commitment to, some piece or other of the democratic framework of modern liberalism. No scholar, as a scholar, could responsibly object to this standard----provided,

10 of course, that modern liberalism really is a morally distinct and superior adaptation of the classical liberal view.4

[[Let’s look more closely at the historical narrative that underlies this evolutionary view. NOT giving a comprehensive history of liberalism or ideas from which its sprang—many volumes. Rather, provide sketch of key stages of intellectual history that give the myth of modern liberalism its special power….]]

From Feudalism to Liberalism

Once upon a time, the social world of Western Europe was very different from the world we know in America today. Social and political relationships in that earlier European world were essentially hierarchical. Rather than relating to one another horizontally and individually—with each citizen encountering other citizens as political equals---social relations were vertical and status-based. People were born and ordinarily lived out their lives within one or another role-differentiated class. The function of the state was to define and preserve those differentiations of social role, thus ensuring the stability of the social order across generations.

In England, the hierarchical system I am describing was known as feudalism. The feudal period is typically said to have begun in 1066, the year William the Conqueror, Duke of Normandy, defeated Harold, King of the Saxons, at the Battle of Hastings. People in feudal England experienced life not as free and equal citizens but as embedded members of hereditary

11 groups. Far from experiencing life as individual authors of their own fate, for people in the feudal world their place of residence, their occupation, and even the particulars of their family life were typically assigned on the basis of inherited social rank. The central function of the state was to preserve the social order, embodied in these differentiations of rank and role.

Under the Norman system, the English population was divided into four great strata or title-castes: king, barons, knights, and serfs. At the top of this pyramid stood the king and his court. The Royal Court was the seat of governmental power. Because the king personally held title to all the land in the country, economic power was concentrated in the Court as well. The king would lease tracts of land to a class of barons, who in turn swore oaths of homage and fealty to the king, thereby becoming vassals to him. The barons held great power within their territories (called manors), minting their own money, setting up their own courts and enacting regulations and levying taxes as each saw fit. The barons, in turn, assigned portions of their land to a class of knights who served as the military wing of the feudal order. The knights, in turn, controlled the distribution of land and occupation among the mass of common people, known as villeins or serfs. The serfs were required to provide their lords with whatever labor and goods they might demand.5

Feudal England was a status-based form of social order. Far from affirming the values of equality and freedom, the feudal order was grounded firmly on the values of differentiation and constraint. Because it is based on the legal

12 enforcement of class-differences, feudalism is often thought of as a quintessentially anti-liberal doctrine.

Of course, the realities of English life did not conform neatly to this idealized feudal form. In England, there were stirrings of political freedom almost from the start of this feudal period. In 1101, less than fifty years after Hastings, William’s son Henry I assented to the Charter of Liberty, which proved to be the first in a long line of such charters. These charters, the most famous of which was the Magna Carta of 1225,6 represented a strong and building set of restraints on royal power by means of law.

These Great Charters, in turn, provided an early platform for the development of a system of rules governing the daily interactions of English subjects. These rules, known as the common law, carved out relatively secure areas for interpersonal action and plan-making. In England, liberalism as a political doctrine was beginning, quietly, as the common law began slowly but steadily to develop. Common law precepts made the social world increasingly navigable to individuals on a day-to-day basis. They enabled people to better assess the risks and rewards of ventures they might consider launching with one another. Backed ultimately by the formal legal restraints established in Magna Carta, the common law protected subjects both from the vicissitudes of daily life and from arbitrary or discretionary uses of royal power.

13 Of course, the main struts of the status-based legal framework of feudalism were still in place. That system continued to impose differential horizons on people’s life-prospects, based on principles of hereditary status.7 Still, ordinary Englishmen grew ever more accustomed to directing their own affairs, and to living within social structures created mainly by their own actions. Increasingly, these people saw this system of law as a common cultural inheritance. Slowly, the liberties protected by the common law came to be seen as the birthright of every English subject.

Henry I’s Charter of Liberty of 1101 thus proved to be the thin edge of a great intellectual wedge. That wedge sent a crack running through the history of the Western world. The crack lengthened first through Magna Carta and then widened with the growth of common law. Eventually, the force from this wedge split the feudal world and released the liberal revolution.

As an intellectual movement, the start of the liberal revolution is usually traced to 1689. This is the year John Locke published his Second Treatise of Government.8 Locke rejected the idea that the essential features of the feudal order---the ownership of all property by the king, and the division of society into fixed hereditary classes---had in some way been ordained by God.9 To gain a clearer view of the moral nature of men and of the sort of political community God intended for them, Locke imagined people as they might be in a pre-political state of nature.

14 Considered in their natural state, Locke argued, people are born free and equal as children of God. They are free in that they needed permission from no other person in order to act. They are equal in the sense that there is no natural political authority of one person over another.10 People are also by nature needy. They must cooperatively interact with the raw, God-given bounty around them in order to fill their stomachs, shelter their bodies, and flourish as children of God. The political problem facing people was a common and public one: how to devise a form of government appropriate to the condition of freedom, equality and need into which people by nature find themselves?11

Famously, Locke found the beginnings of an answer to this question in his observation that each person, from birth, is a “self-owner.” Owning themselves, they own their labor too. By mixing their labor with things in the world, people developed ownership relations with those things.12 For Locke, property is part of the natural fabric of the universe. Because some people work harder and more effectively than others, inequalities of holding are part of that fabric too. In the early stages of social development, these inequalities will be limited the requirement that no one takes so much that it spoils.13 The invention of money amplifies the scale of inequality while increasing the productivity of labor. Since people accept the custom of money, they accept those greater inequalities too.14 On Locke’s telling, the processes of property acquisition that generate an increase of wealth also supports a growth in the population, even as the amount of productive land available for appropriation becomes more scarce. To escape these

15 “inconveniencies,” Locke says people agree to establish a civil society and government. What should the moral basis of such a government be?

In writing the Second Treatise, Locke was aware that many of his fellow citizens were in danger of accepting “the dangerous belief that ‘all government in the world is merely the product of force and violence.”15 By beginning his argument with an account of man’s condition in the state of nature, Locke sought to present the question of legitimate government in a more hopeful way. If people are by nature free and equal, Locke argued, legitimate government must be founded on the consent of those to be governed. People who are free and equal, however, would not consent to be governed by a legal order that forced some, by birth, into lives of bondage or submission to others---the way the status-based feudal system had done. Instead, Locke offered the radical suggestion that governments are legitimate only when they act to preserve the natural freedom of all citizens, no matter their parentage or place of birth. Governments did not exist to enhance the glory, or increase the wealth, of any hereditary class---whether aristocrat or king. Political power, Locke suggested, was a public, rather than a private, power.16 The only legitimate function of government was the equal protection of the natural rights to life, liberty and property. These rights held equally by all citizens from the moment of their birth as children of god.17

If Locke provided the moral foundations for liberalism, it was Adam Smith who most clearly set out the institutional character of the liberal political

16 regime. According to what Smith called “the system of natural liberty” governmental activity should be limited to three areas: national defense, the provision of a limited range of public goods, and the administration of justice.18

It is the liberal conception of justice that most strikingly differentiated this “liberal plan,” as Smith called it, from the system of royal patronage it sought to displace. The essence of the liberal program lay in the idea that the purpose of the state is to protect the freedom of citizens equally, and that the proper way for the state to accomplish this goal was aggressively to limit the range of its own activities. Whereas the feudal system had granted rulers the legal power to determine the shape of peoples economic affairs and their personal lives, the liberal order sought to use laws that would secure the freedom of individual people in all these areas. Thus the liberal program came to include religious toleration, freedom of speech and of association, freedoms of private life (such as freedoms regarding movement, occupation and marriage) and, above all, economic freedoms such as the right to the private ownership of productive property and the right freely to enter into contracts. The liberal conception of justice the required that the state restrain itself from impinging on the freedom of the citizens in any of these areas. Smith wrote, “Mere justice is, on most occasions, but a negative virtue, and only hinders us from hurting our neighbors…we may often fulfill all the rules of justice by sitting still and doing nothing” (add bit on formal equality of opportunity: careers open to talents). 19

17 This idea that justice could be achieved mainly through the restraint of governmental activity was but a reflection of Locke’s basic contention that all people are by nature free and equal. The state respects such people when it does not grant legal advantages, or impose restrictions, on the basis of people’s class, hereditary status, or personal connections. Of course, it would take some time for the full implications of this revolutionary doctrine to be worked out. On the economic front, the commitment to formal equality generated pressure against vestigial feudal practices such as the royal conferment of monopolies, and of estate-securing practices such as primogeniture and entailment. Politically, the ideal of formal equality served as a ground for criticizing peerages and other forms of hereditary political authority, and would eventually be understood as grounds for requiring universal suffrage and, eventually, full political equality for citizens from all classes, genders and races. These reforms, hard won products of political struggles over many generations, were—from a conceptual perspective--- merely windings out of what Smith had called “the liberal plan of equality, liberty and justice.”

With the writings of Locke, Smith and other thinkers such as David Hume and Benjamin Constant, a new ideal of social order appears in the political imagination of the West: an order of law-governed flux. This is the order called commercial society, though it has been known by many names. Advocates such as F. A. Hayek refer to it as the Great Society; critics such as Karl Marx have called it “capitalism.” Early defenders of this social ideal called it simply “liberalism”---as when Adam Smith spoke of “the liberal plan of equality, liberty and justice.” 20 Under this liberal ideal of stable flux,

18 governments are to provide a secure set of laws protecting property and exchange, laws equally applicable to all, and known in advance to be more or less fixed.

Within the stable frame of strong but limited government, however, all else is change. Social order---the character and orientation of human commitments, expectations and desires---is constantly creating and recreating itself from within.21 The particular distributional pattern that might characterize the social world at any given moment is not itself the product of anyone’s intention or design. Rather, particular social patterns emerge as the unplanned and ever changing product of the many choices individual citizens make in pursuit of their own goals and ends. The primary task of the state is to provide secure rivets to those citizens, in the form of a state-backed set of individual rights and liberties. Liberal citizens use those rivets as they go about the busy task of binding themselves with others and thereby constructing their social world.22

This liberal ideal of commercial society did more than challenge all existing political and social traditions—the prevailing political views or particular social hierarchies of the day. Much more, the commercial ideal challenged the notion of tradition itself. No longer would the social world be structured according to legally enforced patterns passed down from one generation to the next, or indeed according to any predetermined patterns at all. Henceforth, order would be the ever-changing product of the exercise of human freedom under conditions of formal legal equality.

19

The system of natural liberty proved to be a potent solvent against the gummed up social hierarchies of 17th and 18th century Europe. The historian T.S. Ashton describes the effects of this liberal program in England during the late 18th and early 19th centuries: “Many old privileges and monopolies were swept away, and legislative impediments to enterprise removed. The State came to play a less active, the individual and the voluntary association a more active, part in affairs. Ideas of innovation and progress undermined traditional sanctions: men began to look forward, rather than backward, and their thoughts as to the nature and purpose of social life were transformed.”23

However, almost from the beginning of the liberal revolution, concerns were being expressed about the liberal, commercial order---and these concerns were expressed from the perspective of the value of liberty. The early liberals emphasized private property, commercial exchange, and guarantees of formal legal equality as way to free people from state-imposed hierarchies based on hereditary class. [[yet, adam smith’s worries about negative effects of commercial order, yet he still advocates24.]]

But what if the commercial society of the liberals did more than cause the social disruptions and personal challenges to workers that Smith described? What if, as a practical empirical matter, the political regime of the liberals turned out to generate a hereditary class structure of its own, one based upon the apparently unlimited right of individuals to accumulate property? Granted, the equal freedoms guaranteed by Smith’s commercial order were

20 acid to the feudal practices of status-based economic preferment. Yet the system of private rights to productive property the underlay that system also made possible the amassing of great new fortunes. That same system of property rights protected wealthy families who wished to pass their wealth on from one generation to the next. Locke had argued that the essential role of the state is to protect property rights. But what if a political regime based on property rights predictably---even if not intentionally---generated a society divided by hereditary class distinctions? In this case, the so-called “system of natural liberty” turns out to be yet another device by which inequalities of status are coercively imposed on the social order.

This line of worry about the system of economic freedom extends at least back to Rousseau. In his Discourse on the Origins of Inequality, Rousseau suggested the Locke and the other state-of-nature theorists had not gone back far enough to gain a true picture of man’s natural condition. On Rousseau’s mytho-poetic telling, the real starting place of human history was not merely pre-political, as Locke had claimed, but was pre-social and pre-linguistic and even pre-pyschological as well. Human history proper antedates people’s gaining an awareness of self, or even an awareness of time. In this, their true natural state, people lived spontaneously and thus were perfectly free and happy.

For Rousseau, the gradual but perhaps inevitable emergence of human culture progressively corrupted people and fastened ever heavier chains upon their freedom. Political society must be seen in this light. Hobbes, a

21 proto-liberal, had argued that the state and laws were necessary to save people from the war of all against all that Hobbes said raged in the state of nature; Locke, more gently, saw the state as required to remedy certain “inconveniencies” that people faced in that natural pre-political condition. But both these thinkers saw the arrival of the state as an unambiguous moral improvement. Rousseau, by contrast, did not see civil society or its laws as simple correctives. Instead, Rousseau argued that laws often caused the very disorders they are then meant to restrain.25 Rousseau saw this unhappy cycle as swirling with most dangerously around laws that secured rights to the private ownership of property. Laws protecting property, far from protecting people’s equal freedom, forced people into relations of bondage and inequality regarding one another. According to Rousseau, “inequality, being almost nonexistent in the state of Nature, owes its force and growth to the development of our faculties and the progress of the human Mind, and finally becomes stable and legitimate by the establishment of property and Laws.”26 Thus we see in Rousseau the beginnings of the worry that market- based liberalism, far from providing an antidote to class-based society, may be yet another means of generating and fixing in place a social world that is essentially vertical and adversarial.

Closely connected, Rousseau is also a seminal figure in what would become the continental school of liberalism. Where liberalism in the British tradition focused on economic freedoms, the continental school concentrated from the start on issues of democracy and public deliberation. This reflected a different turn of mind between British and Continental thinkers---one more practical, the other more theoretical---and rested ultimately on different

22 conceptions of reason itself. 27 The British tradition of liberalism was based in an evolutionary conception of reason. On this approach, rules have their authority in large measure because they have proven themselves effective at advancing human purposes over time.

Continental liberals shared with the British liberals such as Locke, Hume and Smith a special concern for protecting the civil and political freedoms of individuals. But, unlike the British liberals, thinkers of the French enlightenment such as Rousseau and Voltaire proceeded from a rationalist perspective. That perspective insisted that, in principle, the whole of the social world should made to accord with principles that are themselves the product of self-conscious human deliberation. Where British liberalism was based on an evolutionary conception of reason, continental liberalism was founded on a constructivist view. [[supplement: Hayek suggests that European absolutism had swept away many of the liberties that had been preserved in England, giving the constructivist approach a clearer field on the continent.]] Those methodological differences were reflected in subtly different understandings the idea of freedom itself. Thinkers in the British tradition tended to think of freedom as requiring a legally guaranteed absence of restraints. By contrast, the Continental tradition saw freedom as centrally involving the political self-determination of a group by means of public deliberation.

The hammer of Rousseau’s critique of commercial society would soon be picked up swung more boldly by the young Karl Marx. In 1844, Marx wrote “On the Jewish Question,” an essay that outlined a powerful critique of the

23 prevailing liberal political ideal. Marx’s critique led not only to the launching of communism---a revolutionary ideological rival potent enough simultaneously to challenge liberalism on its evolutionary and its constructivist formulations. Marx’s critique also led, we are told, to the massive recasting of liberal theory into its modern, egalitarian form.

Like Rousseau, Marx focused his critique on the liberal ideal of equality. Locke says that people should be recognized as equal holders of rights. Because people are all equally children of God, Locke argued, they should have equal standing on this world of God’s creation. But, in actual practice Marx suggested, a commercial society based on the ideal of formal equality will be a society marked by fixed and enduring class divisions, divisions based on people’s standing in the economic order. People’s material holdings---the money and goods they have---affect their life-prospects at least as much as their political status. It is a farce, Marx claimed, to call people in such a society “equally free” merely because of the legal equality of status granted to them by courts. The liberal ideal was internally inconsistent: the formal equality of liberalism was a mask behind which hid a society as unequal, as hierarchical, as corruptly exploitative, as any other in the history of mankind. Indeed, Marx described liberalism as but the latest in the long historical line of status-based social orders.28 This commercial ideal of the early liberals was not feudalism. But the effects of each system on the lives of real people were effectively identical.29

24 [[We can put the Marxian point in familiar, contemporary terms. Bill Gates and the lowest paid janitorial worker charged with cleaning any Microsoft office enjoy exactly the same legal standing with respect to their right to hold and use productive property. But guess what? You, the reader of this book, have exactly the same right to express and publicize your political opinions as Rupert Murdoch or the CEO of Time/Warner communications. But guess what? Similarly, I myself have exactly the same right to run for elected office, or to seek a position of power as a political appointee, as anyone born a Rockefeller, a Kennedy, a Clinton or a Bush. But guess what? As a matter of law, children in Palo Alto, California are exactly as free—and no more free---to seek a quality education as children from the adjacent town of East Palo Alto, one of the most blighted and violent communities in America. But guess what? Liberal societies, even if they fully realize the liberal ideal of formal equality, will be societies of massive and enduring inequality. Indeed, the more purely committed a society is to the liberal ideal of commercial society, the more massive and enduring the inequalities in that society will be. But liberalism, on any of its classical formulations at least, has no resources even to recognize these unequal outcomes as a problem.]]

Toward the close of the 19th century a shift began to occur in the liberal self- consciousness. Intellectuals who affirmed the primacy that liberals traditionally accorded to the personal and political liberties of individual citizens nonetheless became increasingly concerned about the economic fairness of the classical liberal social order. George Bernard Shaw satirized the traditional liberal understanding of liberty as “the right to have tea at the

25 Ritz---for anyone who could afford it.”30 Progressive literary figures such as Upton Sinclair drew the attention of people to the negative effects of industrialization on workers at the bottom of the economic hierarchy. During this same period, there was also a rapidly growing confidence in the ability of government officials, economists, and other “social scientists” to shape the social world according to their plans. Intellectuals in Britain and America increasingly called upon government agencies to take a more active and direct role in the organization of social life.

In response to concerns about the old liberal paradigm expressed by Shaw and others, liberal philosophers such as T.H. Green and L.T. Hobhouse began defending a new conception of liberal justice: social justice. (rooted in the French revolution---add bits from Fleischacker, who locates the first demands for social or distributive justice in that continental tradition). Rather than seeing justice as a property of individual actions, Green and Hobhouse argued that social outcomes, and even the shape of distributions over a society as a whole, could properly be described as just or unjust. By 1920, John Dewey was calling himself a “new liberal.” These new or modern liberals affirmed the Lockean idea that government institutions should be designed so as to respect the moral character of persons as free and equal citizens. Like the earlier liberals, they also affirmed the importance of people’s civil and political liberties toward this end. Yet, in an important break with the British liberals such as Smith and Spencer, these new liberals did not assign any foundational importance to people’s economic liberties. Instead, they thought economic matters should be brought under more conscious political control. In particular, these

26 progressive thinkers thought that government agencies should be free to create programs and enact regulations that would ensure that the distribution of goods and opportunities in society would be fair. The waste and instability of “flux” would be replaced with the efficiency and rationality of planning. The new liberal program was not the protection of people’s negative liberties or the pursuit of economic efficiency. Instead, the new task of liberal government was the realization of social justice.

[add bit: controversy over the very name liberalism begins here: Spencer: “The New Toryism” (1890ish): where “liberal” once referred to a specific regime orientation---that of strong property rights and limited government--- an orientation that Spencer says actually had greatly improved the condition of all members of society, in England the term “liberal” was increasingly used to describe any political program that merely announced an intention of bringing about benefits to all citizens----including programs that violated the very principles of government that had originally made those benefits possible; later: J. A. Schumpeter: “as a supreme but unintended compliment, the enemies of the system of private enterprise have thought it was to appropriate the label”; and/or similar idea as expressed by Mises [1935ish.]31

For some, the idea of economic and social planning proved so attractive that they abandoned liberalism altogether---joining into the lively debates among socialists about how best to hasten the arrival of the society of real material equality which Marx had described as an historical inevitability. But for the many intellectuals who remained committed---however now vaguely and

27 uncertainly---to the liberal paradigm, these were decades of just limping along. With the rise of analytic philosophy in the early decades of the 20th century, philosophy took a long detour into problems concerning the philosophy of language. While the state centric program of the new liberals gained increasing support among the general populations of liberal societies, normative political philosophy in the liberal tradition lay dormant. Liberal thinkers in the middle part of the 20th century could perhaps argue with sophistication against the extreme remedy of socialism. But they were much less willing or able to explain the moral foundations of the political and jurisprudential regime-type that America was fast becoming. If no one could quite say what fundamental moral principles could justify FDR’s famous “second bill of rights” or exactly how that view related to the liberal view which guided American of the Founding Period, it was clear enough what this fundamental view was not: it was neither---and with equal vehemence— Marxist socialism nor the cruel and bankrupted doctrine of laissez-faire.32 This new liberalism was a child of the old. But exactly who its parents were, and what their exact relations were to each other, no one could say and polite people found it better not to ask.33

Liberalismus Sapiens Sapiens

Early in the summer of 1971, John Rawls published A Theory of Justice and everything changed. Political philosophy in the liberal tradition was jolted like a patient hit with electric shocks.34 A Theory of Justice was 587 pages of technical virtuousity---detailed and intricate enough to satisfy even the most querulous analytic philosopher. Most remarkable about the work, however,

28 was the fearless way Rawls confronted the Marxian critique of the old version of liberalism and adopted many socialist worries about Smith’s “system of natural liberty” as his own.

Rawls demonstrated that liberals should become sensitive to the concerns of liberalism’s critics regarding material inequality, but could do so without abandoning the primary place liberals had traditionally accorded to individual freedoms (at least, those concerning personal, civil and political freedoms). Rawls argued that liberalism---against its classical formulations-- -carries within itself coercively backed guarantees for the correction of material inequalities such as those Marx feared.35 The liberal commitment to equal freedom requires more than mere equality of status. A commitment to equal freedom also allows, indeed requires, that the liberal state act to rectify inequalities in the worth of people’s liberties---at least where those inequalities become great enough to threaten people’s status as political equals. Rawls acknowledged that the worth of liberties is importantly connected to each person’s material resources. The main thrust of A Theory of Justice was to show that concerns about inequalities in the worth of liberties can be built into liberal theory at the level of justice. In addition to mandating full formal equality for all citizens, liberal theory was now said to generate far more ambitious principles. These principles require that the state seek to rectify an array of inequalities in people’s actual life prospects.

Crucial to these principles was a distinction between inequalities that result from peoples choices and inequalities that result from peoples unchosen

29 circumstances---such as differences in people’s holdings that result from differences in their natural talents or their social starting places. While the former sort of inequalities might be morally permissible, the latter inequalities were unjust—based as they were on traits or social facts that are “arbitrary from the moral point of view.” Rawls’s famous Difference Principle, which sees liberal justice as requiring that social inequalities be arranged so as to benefit the least well-off members of society, became the flagship feature of modern liberalism.

Of course, the story continues, in beginning the tradition of modern liberal political philosophy, Rawls also gave birth to a version of that modern view with a unique genetic-coding from Rawls’s himself. There are technical features of Rawls’s unique version of modern liberalism---his apparently sweeping rejection of desert, for example, and his preference for socialism over the wage-oriented redistributive schemes of the welfare-state---that separate Rawls’s particular formulation from that of other major modern liberal figures such as Ronald Dworkin .36 It is the motivating idea behind Rawls’s account of modern liberalism, rather than any technical feature of the particular theory of liberal justice that Rawls worked out, that has transformed not only the profession of political philosophy but the path of liberal thinking itself. That motivating idea, the bottle of champagne that A Theory of Justice cracked against the side of the modern liberal ship, is that liberals, while still being liberals, must concern themselves not merely with the formal equality of citizens but with the substantive equality of citizens as well.37 The institutional features of the modern liberal state are not merely

30 requirements of political expediency. They are requirements of liberal justice.

Along with the many important technical innovations they developed, the main contribution of scholars such as Rawls and Dworkin was to clarify the shape and moral grounding of what had become known as modern liberalism. For the myth of modern liberalism to be fully formed, however, a similar clarification was needed regarding the shape and moral grounding of the rival liberal view against which modern liberalism defined itself. The emergence of libertarianism, especially as defended by Robert Nozick in Anarchy, State and Utopia, is widely taken to have provided just the sort of clarification of earlier classical liberal thinking. As one commentator puts it, “…Nozick is to the libertarianism that preceded him somewhat as Rawls is to the advocates of distributive justice who preceded him: the first person to provide a clear articulation of the position at stake and its implications.”38

[thinkers such as Smith/Hayek/Friedman held nuanced and conceptually messy understandings of classical liberalism: their detailed institutional recommendations (eg state support for educational opportunity; guaranteed income, etc) are left unclearly connected to self-professed moral foundations (society as private; self-ownership; economic efficiency; or some uneasy mix of the three).]

[BUT THEN: quick summary of the libertarian position associated with Nozick: key points: claims to be heir of Locke; self-ownership; principles of justice should be “historical” rather than “patterned”; that questions about the justice of distributions are reducible to questions about the justice of

31 prior appropriations, exchanges, transfers; thus formal conception of equality, according to which economic freedoms are moral absolutes.]

With libertarianism in place as the philosophically clarified classical liberal rival to modern liberalism, all the pieces are arranged for the myth of modern liberalism to be locked into place. The moral commitment of modern liberals to the substantive equality of citizens can now plausibly be said to be not merely a standard feature of the modern liberal view. Instead, a commitment to substantive equality can now be said to be the defining feature of modern view. A commitment to substantive equality is the trait that morally differentiates the modern and the classical species of liberal thought. Thus, according to the story we are considering, the difference between modern, egalitarian forms of liberalism and classical, “libertarian” forms is at base a moral difference. Liberals in the classical tradition advocate an institutional regime that emphasizes the economic freedoms of citizens---typically by entrenching those economic freedoms at the constitutional level. In this way, they seek to minimize the direct control of legislative bodies on economic affairs. Classical liberals may advocate this institutional form because of their awareness of practical concerns about corruption. But the deep reason they affirm the commercial institutional form is that they have a moral commitment only to formal equality. Liberals in the modern tradition, by contrast, are more comfortable placing economic decision-making power in the hands of elected officials. As an institutional matter, they treat people’s civil and political liberties as having a fundamentally different status than their economic liberties. This is because

32 they recognize that liberals must be committed to substantive equality as well.

Will Kymlicka, in a popular introductory text, spells out this basic lesson: “The standard left-wing critique of liberal justice is that it endorses formal equality, in the form of equal opportunity or equal civil and political liberty, while ignoring material inequalities, in the form of unequal access to resources. This is a valid criticism of libertarianism, given its commitment to formal rights of self-ownership at the expense of substantive self- determination. But contemporary liberal egalitarian theories, like those of Rawls and Dworkin, do not seem vulnerable to that same criticism”.39

Works written for professional audiences—graduate students and the professoriate---routinely distinguish modern liberalism from earlier forms of liberalism on this same moral basis. The most enthusiastic adherents of modern liberalism, such as Samuel Freeman, see the line of liberal thought leading to Rawls not merely as an advance but as something close to a culmination of liberal thought. Accordingly, Freeman suggests that we adopt the term “high liberalism” to refer to the modern view that Rawls clarified so brilliantly. 40 As always, however, the main story line is the same. As Freeman puts it, “A basic tenet of high liberalism is that all citizens, as a matter of right and justice, are to have an adequate share of material means so that they are suitably independent, capable of governing and controlling their lives and taking advantage of their basic liberties and fair opportunities” (117). And yet: “Classical liberals by contrast do not envision

33 a nonmarket mechanism that ensures each person a right to income and wealth adequate to provide individual independence” (118).

Freeman is careful to point out that classical liberals sometimes accept the idea that the government should provide a social safety net, at least in cases where the actual operations of market society leave some people in severe poverty. But they accept such policies merely to maintain the market system itself (for example, by preventing social strife or as a requirement for the realization of economic efficiency) rather than out of a concern for any value that requires them to track the levels of material well-being experienced by all citizens---poor and rich alike. High Liberals, by contrast, are manifestly committed to tracking the levels of material well-being experienced by the general citizenry.41 Further, High Liberals, uniquely, are able to tie their commitment to material egalitarianism into the foundation of recognizably liberal values. After all, as Freeman tells us: “Without sufficient income and wealth, one’s liberties and opportunities are worth little” (117). Thus: “To ensure that everyone’s liberties and opportunities are of significant value, the high liberal tradition envisions nonmarket transfers of income and wealth of some degree, to be arranged by political institutions” (117-8).42

Thomas Nagel speaks for the mainstream of the profession when he describes modern liberalism as representing something more than a mere alternative to classical liberalism. Instead, the fairness-based conception of justice Rawls inspired is liberalism in a morally evolved form. As Nagel puts it, “Rawls’s theory is the latest stage in a long evolution in the content

34 of liberalism that starts from a narrower notion, exemplified by Locke, which focused on personal freedom and political equality.” Nagel continues, “That evolution has been due above all to a recognition of the importance of social and economic structures, equally with political and legal institutions in shaping people’s lives and a gradual acceptance of social responsibility for their effects.”43 Liberal societies should retain their constitutional pursuit of justice by means of “negative liberties” in areas of speech, association, and religion. They might also continue to provide some constitutional protection for rights of property and freedom of contract, at least in some suitably qualified form. But, Nagel tells us, the pursuit of social justice in liberals societies henceforth will need also to be conducted by a thick array of legislative measures designed to ensure fair social outcomes: “tax policies and various approaches to social security, employment, disability compensation, child support, education, medical care and so forth.”44

This, then, is the master story among liberal political philosophers and theorists in our time. According to this story, liberal thought has passed through two great moral evolutionary stages: a classical, formal-egalitarian stage and a modern, material-egalitarian stage. Early liberals pursued justice primarily by means of constitutional measures protecting negative liberties and securing the conditions for the development of commercial society. They advocated this institutional form because, on their conception, justice was a purely formal, or “procedural” concept. Modern liberals likewise rely upon constitutional protection for the traditional liberal civil freedoms--- freedom of speech, association and religious liberty prominent among them. But these liberals seek a fuller realization of justice by means of political

35 bodies empowered to bring about distributions of wealth and power that would be fair. They advocate this more expansive role for the state because they conceive of justice in substantive, distributive terms. The deep motivational difference between the two evolutionary stages is that, while the new paradigm allows liberals to express a concern for substantive equality, the old paradigm did not. The mission of theorists working in the liberal tradition henceforth will be to elucidate and better understand the modern, egalitarian view. They will extend the implications of this more fully egalitarian paradigm to new domains and issue areas---justice within the household or between cultural groups; rights to health care, wage floors and educational opportunities; questions of justice between nations, global material distribution and more.45

[[Of course, the authority figures of modern political philosophy will cheerfully undertake the task of transmitting this tale about the history and moral genesis of modern liberalism to their students and to the rising generations of academic professionals. When teaching courses on “Liberal Theories of Justice”, for example, the more intellectually responsible among them may include several weeklong slices of Nozick’s libertarianism (perhaps salted with an article or two by a libertarian such Loren Lomasky), sandwiched between many weeks devoted to Rawls, Dworkin and the other big slices of the modern liberal. In this way, students receive a carefully scripted chance to evaluate for themselves the range of candidate liberal views: modern liberalism or libertarianism.]]

36 [[There is something odd about this state of affairs. Or at least there is something odd about if from the perspective of anyone who studies political philosophy with the hope of achieving normative clarity regarding the political choices facing actual liberal societies such as the United States, Canada, England, or any of the Western European states. For while the welfare state and social democratic institutional regimes of modern liberalism find ready representatives in all of those countries, the highly stylized property-absolutism of libertarianism finds significant representatives in none.46 At the same time the actual rival to social democratic parties in most of these countries---the ideal of commercial society long associated with classical liberalism ---is provided no representative on the philosophical menu. ]]

[[These asymmetries are striking in themselves. But they take on an amber color when one notices that the institutional regime orientation that is put in the most advantageous position by this lopsided description of the philosophical candidates happens to be the favored orientation of most of the academics themselves. At the same time, the institutional regime orientation that is left off the menu----the capitalistic orientation of the political right--- is one that tends to be unpopular among the members of academic class. I do not believe that advocates of modern liberalism intentionally present the options in ways that advantage their own preferred ideology. I believe that most political philosophers are perfectly sincere when they present Nozickian libertarianism as the philosophically cleaned up version of the more nuanced, and messy, classical liberal view defended by scholars since Smith. Similarly, I believe that modern liberals are perfectly sincere when

37 they tell their students that normative political philosophy in the liberal tradition was dead before Rawls published A Theory of Justice---even though F.A. Hayek, arguably the most important thinker in the classical liberal thinker since Smith, was publishing his main works of normative political thought during precisely those supposedly barren decades.47]]

[[not intentional, effects are intellectually numbing and thus pernicious]] For the graduate students especially, the transmission of the myth of modern liberalism has already become a normal part of welcoming each to the profession. It must be inculcated first (except in cases where its truth can simply be assumed) so that each can be assigned to research projects appropriate to role she or he will play as members of the profession. The intellectual problems students will face in developing various aspects of the modern liberal paradigm will not be easy. But at least they can take comfort in knowing that the problems being laid before them are the important ones.48

I remember how sad I felt when my children learned that there was no Santa Claus. Something inside them died that day. Perhaps it was the capacity to believe the unlikely with all their hearts, a simplifying ability to “make- believe” that is in some ways the essence of childhood. In the coming chapters, I intend to dismantle the myth of modern liberalism. I undertake this task with no heaviness of heart, however. For despite the many similarities between my children and their myths and my students and theirs, I have also observed a dramatic asymmetry in the effect that myth-busting

38 has on each. When my students escape the easy clutches of the myth of modern liberalism, something essential inside them—far from dying--- comes suddenly alive. What comes alive is their sense of themselves as scholars---as truly independent thinkers standing on the edge of great and urgent adventure about the nature of liberalism.

A moral commitment to social justice does not require an institutional commitment to social democracy. Likewise, a rejection of the institutional forms of social democracy does not imply a rejection of social justice. [[People who are foundationally committed to social justice, may well choose not to support political parties of the left. People who support political parties of the right may do so out of an absolutely foundational concern for social justice.]]49 The future of liberal theory, like its past, is far more complex and hopeful than the myth of modern liberalism would lead us to believe.

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1 Consider the following exchange between me and my son Peter late one night when he was ten years old. Me: “Zzzzzzzzzzzzz.” Peter: “John, John, wake up!” Me: “Groan, Argh. What th…?” He: “I just figured something out.” Me: “Peter, it is flipping 3.00AM!” Peter: “Listen: Recess is the illusion of freedom.” Me: “Do you want your spanking now or in the morning?” 2 JT: these latter claims about which parties to support occur at the campaign level of what I call public policy. I like the bracketed bits because it tracks what people actually think; but there is danger this it confuses the conceptual points I am making…I should prob either cut or say more…. 3 Add brief data (esp that recent Chronicle article that, seeking to diminish, highlights the imbalance). 4 (Within the academy, it is truth we care about. To advocate a lowering of selection standards out of concern for some other value—for example, the value of intellectual diversity---would be intellectually irresponsible, or worse.) 5 The feudal legal system gave the lords unbridled power over the serfs, with most of these powers designed to ensure that the rigid differentiations between hereditary classes would be preserved. For example, every serf was required to spend his life working on the manor where he had been born, unless his lord should send him to work elsewhere. To prevent any ambitions of social mobility within the manor, and for other reasons of control as well, serfs wishing to marry were legally bound first to seek approval of the match from their lord.The classic account of feudalism, with emphasis on feudalism as a social order, is Marc Bloch Feudal Society (1939). Tr. L.A. Manyon. Chicago: University of Chicago Press, 1961. For a discussion of feudalism from a critical theory perspective, see Elizabeth A.R. Brown (1974) “The Tyranny of Construct: Feudalism and Historians of Medieval Europe,” American Historical Review, 79. 6 JT: several charters were called Magna Carta---perhaps adjust text to show this, and get cites where appropriate. 7 Some of the legal particulars of the feudal system----primogeniture, entailment---had an evolutionary justification of their own: by holding together large estates, they provided bulwarks against invasion and thus provided stability. JT learn more about this----article by that GMU prof? 8 SUPPLEMENTAL NOTES ON LOCKE FROM PS82O SEMINAR: FOR USE HERE AND ALSO IN SECTION WHEN TALKING ABOUT LOCKES CONCERN FOR THE COMMON GOOD AND NOT JUST FORMAL EQUALITY/EFFICIENCY… Locke emphasis the moral status of people as being FREE and EQUAL (Laslett:269), or as he sometimes says, “equal and indendent” (273), or “free, equal and independent” (330) . by “equal” he mains OF EQUAL POLITICAL STATUS: equal “in respect of

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Jurisdiction or Dominion one over another” (304!). Natural liberty: 283-4 POLITICAL POWER essentiall involve making laws for the regulating and preserving of property..” 268 and 361and all this only for the Publick Good” 268. RULE OF LAW; 284; better: 363. Pol Power as public: 276. Propery increases the common stock of all mankind: eg, 294. The amazingly complex, cooperative nature of bread production: Foreshadowing of Smith’s famous pin-making example: 298. Capital/$ magnifies the productivity of labor 299. The people accept the idea of material inequality: 302. Types of equality: 304. The LAW directs the free agent toward his proper interest; aims at the common good (305). Property rights are “subject to the Government and Dominion of that Commonwealth” 348. But govt cannot take people’s property arbitrarily: 360-1, esp 362. The people unite in society “for the mutual Preservation of the Lives, Liberties and Estates, which I call by the general name, Property” (350)—Dennis suggests, Locke seems to slip between two uses of the term Property: sometime a narrow ownership of things, sometimes this wider category. Note on this wider reading, if aim of state is to preserve property in this wider sense, then aim of state is not merely economic efficiency? “The great and chief end, therefore, of Mens uniting into commonwealths, and putting themselves under government, is the Preservation of their Property..” 350-1.

9 Get citatation from Locke’s First Treatise, critique of sir Robert filmer. Jt: ask Jeremy Waldron for his new paper on this. 10 See II.2.sect. 4: Locke Two Treatises of Government, tr Peter Laslett, Cambridge University Press, New York, 2005. For discussion, see eg Karen Vaughn John Locke’s Theory of Property Literature of Liberty: A Review of Contemporary Liberal Thought Spring 1980 5-37, p. 6. 11 12 Acorn quotation…. 13 Significantly, Locke adds: “he who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind” II.37. [[[Citations here to articles by David Schmidtz, Jeremy Waldron and JT re Locke’s “Proviso”….]] 14 Locke writes: “…it is plain, that Men have agreed to disproportionate and unequal Possession of the Earth, they having by a tacit and voluntary consent found out a way, how a man may fairly possess more land than he himself can use the product of, by receiving in exchange for the overplus, Gold and Silver, which may be hoarded up without injury to any one….” II.50 15 get original citation, from Stanford Encyclopedia of Philosophy, entry on Locke. 16 The idea that political power should be understood as public in nature was a significant departure from the understanding of political power held by Engishmen during the feudal period. English kings often claimed to derive the legitimacy of their rule directly from God. On this model, political power was something the king held privately, though the will of God, rather than something entrusted to him directly by the people. See Sir Robert Filmer’s Patriarcha. 17 Locke consistenly emphasized that political power must never be exercised to advance the interest of any particular group of society. The legal order must seek only to advance the good of all, or what Locke called the public good: “Political Power then I take to be a Right of making laws with Penalties of Death, and consequently all less Penalties, for the

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Regulating and Preserving of Property, and of employing the force of the Community, in the Execution of such Laws, and in the defense of the Common-wealth from Foreign Injury, and all this only for the Publick Good.” II.3. 18 The Wealth of Nations 687-688. 19 Theory of the Moral Sentiments, II.ii.1.10, Liberty Fund p. 82. Further: “In the race for wealth, and honours, and preferments, he may run as hard as he can, and strain every nerve and muscle, in order to outstrip his competitors. But if he should jostle, or throw down any of them, the indulgence of the spectators is entirely at an end. It is a violation of fair play, which they cannot admit of.” II.ii.2.2 LF 83. 20 Adam Smith spoke of ‘the liberal plan of equality, liberty and justice.’ [[get primary citation, quoted in Hayek “Liberalism” p. 2—online, reprinted as chapt 9 of New Studies]].

21 JT THINK THIS THROUGH: WHATS THE BASIC IDEA HERE?: THAT THE INEQUALITIES THAT RESULT FROM FORMAL LEGAL EQUALITY WILL BE SMALLER (OR LESS PERMANENT?) THAN THOSE, EG, THAT WRE ENFORCED BY THE OLD FEUDAL STATUS-BASED SYSTEM? OR, IS THE IDEA THAT THE BASIS OF SOCIAL INEQUALITIES WILL NOW BE DIFFERENT?: INSTEAD OF HEREDITARY FEATURES, WEALTH/POWER WILL BE THE RESULT OF TALENT/HARD WORK/EDUCATION/?LUCK……NEED TO SORT THIS OUT IN LIGHT OF THE RAWLSIAN REJECTION OF THE SYSTEM OF NATURAL LIBERTY AS UNJUST…. MY IDEA: THE RAWLSY DEBATE ABOUT WHETHER OR NOT INEQUALITES THAT ARISE UNDER RIVAL POLITICAL REGIME TYPES ARE “MORALLY ARBITRARY” IS A MERE EPIPHENOMENON (IF NOT A RED HERRING). WHAT MATTERS IS BRINGING ABOUT THE SOCIAL CONDITIONS THAT WILL ALLOW CITIZENS TO ENCOUNTER ONE ANOTHER AS BEINGS WHO ARE EQUALLY FREE…..CLEARLY, I NEED TO DO MORE WORK TO SET OUT PRECISELY WHAT THOSE CONDITIONS MIGHT BE, AND THEN ANALYSIS THE LIKELIHOOD OF RIVAL LIBERAL REGIME TYPES BEING ABLE TO BRING SUCH CONDITIONS ABOUT…..(NOTE: NONIDEAL THEORY CONSIDERATIONS). 22 Tomasi, “Individual Rights and Community Virtues”, Ethics, 1991. 23 *THE INDUSTRIAL REVOLUTION: 1760-1830 T. S. ASHTON. (p. 4). See generally essays in Hayek ed. Capitalism and the Historians.

24 Add bits from Rasmussen, The Problems and Promise of Commercial Society: Adam Smith’s Response to Rousseau. 25 “It has to be granted from the first that the more violent the passions, the more necessary are the Laws to contain them; but…it would still be worth enquiring whether these disorders did not arise together with the Laws themselves; for then, even if they could repress them, it is surely the very least to expect of them that they put a stop to an evil that would not exist without them.” Discourse on the Origins of Inequality, Part 1, sect 41, p. 155. Gourevitch.

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26 Second Discourse Part II, sect. 58 ed Gourevitch p. 188. 27 On this distinction between British liberalism with its evolutionary conception of rationality and continental liberalism with its emphasis on constructivist reason, see Hayek “Liberalism” Chapter 9 in New Studies in Philosophy, Politics and Economics and the History of Ideas (Routledge). 119-151. Regarding tendency of continental liberals to that of liberty in terms of the political self-determination of groups, Hayek writes: “This led to an early association and almost identification of the Continental movement with a movement for democracy, which is concerned with a different problem from that which was the chief concern of the liberal tradition of the British type” (2of3). Also, it is interesting to note that Hayek describes Locke as a mixed figure, showing elements of both traditions. The preceding two paragraphs borrow from Hayek’s superb discussion of these issues. 28 Jt: insert quotation from Manifesto: that instead of many classes, the structure of status- hierarchy was now simplified into two great contending classes, property-owners and wage-laborers…. 29 quotation from manifesto: that instead of many classes, the structure of status-hierarchy was now simplified into two great contending classes, owners and workers…. 30 1888ish. Get original cite. (I found in book review in the Guardian of a book on TH Green’s Theory of Positive Freedom). 31 [[In the eyes of many citizens in England and the United States, the economic depression of the early 20th century provided a practical demonstration of the inadequacy of the original liberal program of limited government. A cornerstone of the old system was a reading of the United States Constitution, and its relation to state constitutions, that effectively gave great protection to the economic freedoms of individuals. This tradition understood American law as requiring the recognition of entrenched rights of property ownership and wide individual freedom of contract. (Epstein: How Progressive Rewrote the Constitution] It required that the court apply a high level of scrutiny to legislative actions that might limit or curtail the economic liberties of individual citizens.

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For many, however, the Wall Street crash of 1929 and its aftermath demonstrated the moral and economic untenability of the commercial interpretation of liberal society. [Holmes’s shot at Spencer in his Lochner dissent]. Under the influence of Franklin Roosevelt and his advisors, a new understanding of the American regime itself was being born. [Sunstein: The Second Bill of Rights]. The changed economic and social conditions wrought by industrialization required an equally great change in our understanding of the Constitution, and so in our understanding of the proper range and purpose of governmental activity itself. The disorder and waste of “flux” would be replaced with the efficiency and rationality of planning. A concern for substantive equality required that the state in general---and legislative bodies in particular---be allowed a more direct and active role in managing the economy, and social life as a whole, in pursuit of the common good. [[something like this (but more balanced re the debate): Economic historians continue to debate the effects of many New Deal measures. The strategy of destroying crops and livestock as a price support, and the decision to impose wage floors during a period of high unemployment, are particular controversial. Whether the New Deal measures---taken as a whole---sped up the recovery, or slowed it, those measures clearly responded to the demand of citizens that somebody do something.]] The commercial republic was increasingly supplanted by a progressive regime, a regime that called for direct governmental planning in pursuit of social justice.]]

32 For discussion of Roosevelt, see Sunstein The Second Bill of Rights. 33 An important point from Sam Freeman to fit in somewhere (later perhaps?): “The combination of liberalism and democratic government is a nineteenth-century

44 accomplishment. It is not found in Locke or Kant, in the classical liberalism of Hume, or Smith, or Constant; Bentham and the classical utilitarians only gradually came to accept it” (Sam Freeman, “Illiberal Libertarians”, p. 123. I can use this to make my diagnostic point about how democratic theory has come come to eclipse the whole of status quo liberal thought in our time…eg remarks by Dave Estlund and Corey Brettschneider to me that, roughly, “liberal theory is democratic theory”….an assertion that assumes the Myth- generated ascendancy of High Liberalism…. 34 This claim that normative political thinking in the liberal tradition was dead before Rawls is a standard feature of the myth of modern liberalism (see Pettit formulation). It is an embarrassing, though telling fact, however that Hayek, arguably the greatest thinker in the classical liberal tradition since Smith, was producing his greatest work in exactly those “dead” decades. 35 Rawls notes that while the institutional regime he most prefers---property-owning democracy is quite distinct from Marx’s ideal of a fully communist society, nonetheless “the idea of property-owning democracy tries to meet legitimate expectations of the socialist tradition” (Justice as Fairness, 177). 36 RE critics of desert, get citations to old P&PA article by George Sher, and recent PT article by Schmidtz; re welfare-state capitalism, search out citations from Josh Cohen and Bill Galston (?). 37 As Rawls says, “the idea of property-owning democracy tries to meet the legitimate objections of the socialist tradition….” (JasF 177). {what are those “legitimate objections in Rawls’s view?: that lib is purely formal, more on 177}. 38 Samuel Fleischacker A Short History of Distributive Justice (Harvard: Cambridge MA, 2004) 121. Similarly, Jeffrey Paul describes Nozickian libertarianism as the “recent successor of Lockean liberalism,” Reading Nozick, ed. Jeffrey Paul (Totowa, NJ: Rowman and Littlefield, 1981), p. 4. 39 (Contemporary Political Philosophy1990, 160) “Classical liberalism” is sometimes distinguished from “libertarianism” on the basis of the uncompromising priority given to property rights on the latter, but not the former view. Kymlicka does not make this distinction here. By “libertarianism”, he means to include the “classical liberal” view that we call Low Liberalism. Samuel Freeman carefully distinguishes between classical liberalism and libertarianism. According to Freeman, major proponents of classical liberalism include Adam Smith and other members of what some call the Scottish Enlightenment, as well as more recent thinkers such as James Buchanan and Freidrich Hayek. Classical liberals advocate the doctrine of laissez-faire. They think any redistributive role for the state should be strictly limited to occasions when such actions are required to preserve the market system itself. Freeman describes libertarianism, exemplified for example in the writings of Robert Nozick, as a more extreme view. It allows for the full alienability of peoples rights and liberties—so that, on Nozicks view, citizens have rights even to sell themselves into slavery with one another. (So absolute and uncompromising is the libertarian commitment to rights of private ownership and contract, argues Freeman, that is it does not even count as a liberal view.)

40 Get original citation to Freeman’s P&PA piece. Note also that Freeman, at least, carefully distinguishes libertarians from classical liberals (Note, my schema sees the

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Smith-Hayek-Friedman line as one interpretation of classical liberalism, and Nozick- Mack libertarianism as a rival interpretation of classical liberalism). 41 Jt: sharpen this formulation: not clear that “material well-being” is the value being tracked here…. 42 Note here or in next chapter: Freeman distinguishes between “classical liberalism” and “libertarianism”—perhaps save this point till I discuss my typology, according to which libertarianism is one interpretation of classical liberalism, and jt’s constitutional capitalism is a rival interpretation…. 43 “Rawls and Liberalism” Cambridge Companion to Rawls, ed. Samuel Freeman, p.63. 44 Nagel 66. 45 Get cites. Ask Keith and/or Carlos to help fill in here: LOTS of citations, to major figures in high liberal paradigm over past thirty years. 46 E.g., even the Libertarian Party in US rejects the idea that economic freedoms should be treated as moral absolutes. 47 Plug in dates----esp. Constitution of Liberty (1960), and Law, Legislation and Liberty v. 1 (1973). Perhaps quote line from Newsweek about the 20th century being “Hayek’s century.” But also set up my later critique: that Hayek, unlike Rawls, worked out his normative view in a way that unfortunately mixed the identificatory level of pol philosophy with the advocacy level of pol theory. 48 In 1990, while I was a graduate student, I remember what a hot topic soviet studies was (get data: research projects on soviet arms industry and domestic policies by junior faculty at Harvard winning big grants---check with jeff Anderson). The academic fields of comparative politics, international political economy and security studies had become cozy, self-reinforcing professional fiefdoms, almost wholly disconnected from empirical reality. As the myth of modern liberalism tightens its grip on the profession, has scholarship in the fields of political philosophy and political theory similarly become disconnected from normative reality? 49 JT, again: the former set of claims is made at the level of regime advocacy that I call political theory; the bracketed set occurs at the campaign level that I call public policy. Probably need to clarify or cut.

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