The Condition of Material Adequacy Classical Liberals

CONSTITUTIONAL CAPITALISM: Economic Freedom, Social Justice and the Myth of Modern Liberalism John Tomasi

Working draft: please do not quote.

Chapter 4: The Condition of Material Adequacy

Classical liberals should accept social justice as concept. But what particular conception of social justice should classical liberals affirm? In this chapter, I gather materials to answer this question.

With varying degrees of self-consciousness, most every major thinker in the classical liberal tradition affirms some version of what I call the condition of material adequacy. According to this condition, a liberals can advocate the classical liberal institutions of limited government and wide economic liberty only if, in light of a broad-gauged evaluation of the historical and economic realities of the society in question, they believe those institutions are likely to generate an adequate material and social outcome for all citizens.

Towards what state of affairs must the provision of the material goods be adequate if, according to classical liberals, the condition

of material adequacy is to be satisfied? There are probably as many ways to answer that question as there are classical liberals. I shall suggest, though, that one way is morally most attractive when we consider that question at the level of regime-advocacy that I call political theory. It is this: classical liberal institutions can be advocated only if those institutions are deemed likely to generate social conditions within which citizens might develop the powers they have as free and equal citizens. That is, classical liberal institutions should be advocated only if they are deemed likely to help secure a thickly substantive conception of liberal social justice. 1

Of course, showing that classical liberals care about the material well-being of citizens is different from showing that classical liberals are committed to social justice. After all, classical liberals can have some concern about material well-being without agreeing with modern liberals about what the precise shape of those desired outcomes should be. Further, even if classical liberals did share with modern liberals a common understanding of what material outcomes were desired, this would not mean that classical liberals have the same reasons as modern liberals for caring about those outcomes.

These are important points and we will need to address them anon. For now, though, I emphasize that my purposes in chapter are not primarily historical or exegetical. By describing the expressions of concern in the classical liberal tradition about the material well- being of citizens, I am not attempting to show that classical liberal thinkers ever actually did or do now, secretly, affirm social justice. [I am not seeking with this book to do for classical liberalism what Dan Brown sought to do for/to Catholicism with The DaVinci Code.] Many of the historical figures I discuss were writing before social or distributive justice, at least in its modern sense, had been developed as a concept. Further, as we saw in the previous chapter, recent classical liberals who are aware of social justice strongly reject that ideal.

So, as I have said, I am here merely assembling some raw materials. In the next chapter, I shall then use those materials to develop a particular conception of social justice that I say classical liberals should affirm.

1. Material Egalitarians Here…

Modern liberals affirm a substantive conception of equality.2 A concern for substantive equality is not only a standard feature of

modern “democratic” liberalism. More, modern liberals claim that a concern for substantive equality is the defining feature of their view, the feature that distinguishes the modern, social democratic tradition from that of liberalism in its classical, capitalistic form.3

However, within the texts of thinkers in the classical liberal tradition, we consistently find expressions of concern about patterns of material outcomes. Sometimes classical liberals express their concern for citizen’s material holdings in relational terms, as when they say members of a society based on the liberal principles they recommend will have greater material wealth than will members of non-liberal societies. Other times, they express their concern for citizen’s level of material holdings in absolute terms, as when they claim that their preferred system of governance will result in citizens having sufficient material holdings to make their liberties valuable at all. Still other times, they express their concern for material well-being in relative terms, as when they say that the outcome of the instantiation of the political principles they recommend will be some desirable boundary of inequality in the holdings of the least and the most well off members of society.

Thinkers in the classical liberal tradition often do not make clear what role they see these expressions of concern about material

well-being playing. Sometimes we find expressions of concern about material well-being peeking out of the interstices of the theories of writers in this tradition. In this mode, these expressions of concern are presented in an off-hand, by-the-way manner. If these hoped-for positive material outcomes are mentioned, they seem to play the role of buttresses to the main arguments being laid out in support of classical liberal institutions. Other times, we find classical liberals invoking these considerations about citizen’s material holdings in ways that are straightforwardly justificatory. That is, they rely on the claims they make about the material consequences of their preferred institutional regime as a way to justify that sort of regime itself. Despite these variations, though, thinkers in the classical liberal tradition show a consistent and manifest concern for the material well being of all citizens. This is true of recent defenders of classical liberalism. It is true of some of liberalism’s earliest defenders too.

For John Locke, famously, the great end of government was the securing of people’s right to property. Locke also believed that inequalities in material holdings could be justified by the different degrees of industry of self-owning persons. But from the earliest stages of his argument, Locke demonstrates his commitment to the principle that material inequalities should not be unbounded.

Before the state, the prohibition on spoilage and the requirement of labor, provided caps on the degrees of material inequality that are morally permissible in Locke’s theory. These are natural, god- given constraints that could have been abscent: if God had created fruit so that it never spoiled, for example, the spoilage condition would not limit inequalities. But Locke’s discussion does more than merely present the inequality-limiting spoilage condition as a fact. He describes the effect of the operation of the spoilage condition as in an approving way, as though it seemed obvious to him that patterns of unequal material holdings, however they were arrived at, stood in need of some additional form of justification.

After the formation of the state, Locke’s interest in patterns of holdings, and not just procedures, becomes even more apparent. Locke says that the state’s protection of property rights encourages the productive possibilities of human creativity, since “labor puts the difference of value of on everything.”4 Locke says that an effect of the operation of his property-protecting political scheme is that, because of it, even the poorest will do well. Thus, “a day labourer in England,” Locke tells us, “feeds, lodges and is clad” better than a king in a America—that is, a (naturally bountiful) place where this system is not fully in place (II, s.41).

But this is proto-Rawls. The “day labourer” in 17 Century England was indeed “the representative member of the least well-off class.” Locke is taking care to point out that even the least well off will fare better in this system than in other systems. The system of formal equality, with primacy given to the protection of individual rights to property, is the rational outcome of reasoning under maximin. After all, what if the class of day labourers were not made better off under Locke’s preferred scheme? What if they grew steadily and precipitously worse off? Would Locke just say too bad—natural rights are natural rights and issues of material equality are mere sidebar niceties? In a world where the facts on the ground were such that that growing inequality (rather than growing wealth) was the likely outcome of the state protection of property rights, would Locke expect his argument about the importance of property rights to convince anybody? I don’t think so.

Locke’s sense of the importance of a positive material outcome for all citizens explains his need to carve out moral permissions in the cases where the expectation of well being is not realized. Thus, Locke writes, “common Charity teaches, that those should be most taken care of by the Law, who are least capable of taking care for

themselves.”5 Locke returns to this theme in an often quoted line from the First Treatise: “As Justice gives every Man a Title to the Product of his honest industry and the Fair acquisitions of his Ancestors…, so Charity gives every Man a Title to so much out of another’s Plenty, as will keep him from Extream want, were he has no means to subsist otherwise” (I, s.42).6

These concerns are all expressed in the natural law terms in which Locke seems to be recognizing something like an adequacy condition on the form of liberalism he advocates. This condition limns the commitment to social justice that we would later see in modern liberals. How much material inequality is too much, according to this adequacy condition? Locke’s early formulation leaves this ambiguous (though in this he is not so different even from many modern liberals). The crucial bit is that Locke, like our contemporary democratic liberals, affirms that when it comes to material inequality in the setting of a free society, there is indeed such as thing as too much. That dimension of too-muchness can only be captured in substantive rather than formal terms.

Locke is not unique among the early liberals in his concern about the material effects of his preferred political program on the poor. Bernard Mandeville is infamous for his disquieting suggestion that

even the most vicious forms of vice and greed could result in positive cooperative outcomes, if only those vices would be properly channeled. In his early satirical poem, “The Grumbling Hive” (1705)—which would later provide the core for The Fable of the Bees---Mandeville suggested that private vices could lead to pubic benefits, at least when vice is by justice “lopt and bound.”7 Yet Mandeville took pains to point out that the commercial system he favored not only worked to the material benefit of the least fortunate. More, that system provided greater benefits to the least fortunate than any other possible system. After describing how greed and competitiveness, when shaped and channeled by appropriately crafted institutions, produced riches in a society, Mandeville wrote: “THUS Vice nurs’d Ingenuity,/Which join’d with Time and Industry,/Had carry’d Life’s Conveniencies,/It’s real Pleasures, Comforts, Ease,/To such a Height, the very Poor/Liv’d better than the Rich before,/And nothing could be added more.”8

These are claims of political advocacy, based on predictive empirical assertions, made at the argumentative level of what I call political theory. But we find similar claims being made again and again within the classical liberal tradition.

Adam Smith, famously, advocated the capitalistic “system of natural liberty” because Smith predicted that, within the incentives-structure of the classical liberal political order, certain forms of self-interested behavior of individuals could make that nation wealthy: markets provide allocative efficiency. 9 But Smith repeatedly emphasizes that his system generates of wealth in a way that potentially benefits all citizens---including the least well off workers. Indeed, Smith was so concerned to demonstrate the positive material affects of commercial society on the poor that contemporary critics such as Robert Malthus criticized him for not differentiating between the wealth of nations and “the happiness and comfort of the lower orders of society.”10

Smith’s key reason for objecting to the system of mercantalism and for favoring the open market system of “natural liberty” was that the former exploited the poor and fixed people in their classes while the latter system benefited the least well off and allowed for more social mobility. Under mercantalism, wealthy individuals and groups were able to craft highly specific rules and regulations --- such as the Statute of Apprentices, which limited the ability of workers to choose when and were to work, or the Settlement Act, which limited the mobility of poor people----which enabled the wealthy to maintain or even extend their relative affluence. As

Smith put it, “It is the industry which is carried on for the benefit of the rich and the powerful, that is principally encouraged by our mercantile system. That which is carried on for the benefit of the poor and indigent, is too often, either neglected, or oppressed.”11

[In some places, it is possible to read Smith as expressing a concern for the material well-being of the poor out of simple prudential grounds. After all, as Smith notes, “Servants, labourers and workman of different kinds, make up the greater part of every great political society” and thus it makes sense to give special consideration to their condition with evaluating a society as a whole (quoted in by Rassmussen, who cites WN I.viii.36, 96). But Smith makes clear that his devotes so much attention to the question of how the system of natural liberty will affect people’s material holdings for moral reasons. Society is a cooperative venture. The wealth enjoyed by any is in part made possible by the actions of all the others. This gives every citizen a moral claim to consideration when questions of material distributions arise. As Smith puts it: “It is but equity, besides, that those who feed, cloath and lodge the whole body of the people, should have such share of the produce of their own labor as to be themselves tolerably well fed, cloathed and lodged.”12

[Smith is a material egalitarian and his defense of the system of natural liberty rests heavily on his claims about the material benefits to all members of society that will be the likely consequence of the adoption of that system. As Dennis Rasmussen puts it: “The ‘wealth of nations’ that Smith refers to in the title of his most famous work, then, refer’s not to a nations GDP or any such aggregate sum, but rather to the prospects of every individual in the society, including (and especially) the poor” (quoted from email 1 march 07: get now-published citations to The Problems and Promise of Commercial Society).13 Expressing these material egalitarian concerns, Smith writes, “That state is properly opulent in which opulence is easily come at, or in which a little labour, properly and judiciously employed, is capable of procuring any man a great abundance of all the necessaries and conveniences of life….National opulence is the opulence of the whole people.”14]

[[build in: from Sam Fleischacker: Fleischacker notes Smith’s Roussean worries about effects of capitalism on workers, then writes: “Smith goes on to say, as did Hume, that the apparently unfair division of goods he describes still leaves poor workers better off than the richest people in more egalitarian societies. It is at this point that we get Locke’s Amerindian king, who is materially worse off than the poorest day laborer in England. Smith

thus gives us essentially the same justification for inequalities that John Rawls was to propose two centuries later: they are acceptable if and only if the worst-off people under a system of inequality are better off than they would be under an egalitarian distribution of goods.” A Short History of Distributive Justice, 38- 9, emphases mine.]]

We see a similar concern about patterns of material outcomes in the work of James Madison. American’s on the political left typically see a concern for material egalitarianism as a recent development in American history. On this view, founders such as Madison had a quaint but simple faith in property rights as bulwarks against tyranny. The naïve and unscientific application of the Lockean ideas of the founders, however, rendered America an increasingly class-riven and undemocratic society---a error of navigation that was at last identified by Progressive thinkers and then acted upon by FDR’s New Dealers and later progressives (now with a small P). But Madison’s views were more Lockean, and thus more materially egalitarian, than this story suggests.

Madison, far from being praised for his concern for the material well being of all, is often criticized for his acquiescence to a particularly rigid and fixed form material inegalitarianism. In some

places, for example, Madison apparently accepts the idea that there will always be two great classes in America, one wealthy and one poor.15 Madison’s acquiescence to inegalitarianism is often said to be revealed most clearly in his account of how liberal property rights can be reinforcing of democracy. By accepting secure, government-enforcement of property rights, Madison argued, the poor can reassure the wealthy that the core of their wealth will not be confiscated through majoritarian measures. The wealthy, with their elite status thus secured, will be more likely to participate in popular government of the sort demanded by the less well off— rather than using their economic power to subvert democratic self- government. And with members of the wealthy class participating in democratic processes, the poor in turn have reason to participate as well—rather than breaking off into open class warfare. Secure rights to property are thus justified in terms of their tendency to support democratic self-governance, an argument run against a background acceptance of a society divided in to classes.

How strange, therefore, to find Madison defending the original U.S. Constitution on material egalitarian terms. Madison thought the Constitution, with its system of dual and divided sovereigny and wide economic liberties protected by the state constitutions, would make possible a strongly commercial society. Commercial

society, unlike a mercantalist one, would encourage a great dispersion of property ownership across the entire population. So Madison defended strong rights to private productive property not only because of the ameliorative effects of rights with respect to class-based threats to democratic processes. Just as important, Madison defended property rights in terms of the direct material benefits of such rights to all members of society, rich and poor alike. As Stephen Holmes says, on Madison’s view, property rights “are productive not merely protective; they contribute to overall prosperity, enhancing the well-being of the poorest members of the community; with economic growth, the proportion of property owners in the population will increase.”16

Of course, these are empirical claims about the effects of property rights in a commercially based society in a particular set of historical, sociological and technological conditions. Those claims can turn out to be true or turn out to be false. But its crucial to notice that Madison makes these claims and relies upon them when securing the normative base of his argument.17

Madison’s argument about the productive, material egalitarian effects of property rights is no mere aside or throw-away. Taken by itself, the strategic, class-based argument for property rights that

Madison gives on the basis of the tendency of such rights to bring opposed class interests in democratic equipoise would make little sense. Democracy assumes equal moral standing of participants. The great language of the founding documents all advert to that deep ideal. It is no accident that Madison combines the productive with the protective justifications for property rights the way he does—rather than simply setting forth the protective, class- balancing considerations. Madison sees himself as working out the political and institutional implications of the grand phrases of equality that framed the Declaration and the Constitution. For Madison, it was obvious that a concern for political equality within the classical liberal tradition required a concern for the material condition of all members of society, rich and poor alike.18

If classical liberal luminaries such as Locke, Smith, and Madison accept the material adequacy condition, why do classical liberals get such a bad rap with respect to their concerns for the material well-being of all citizens? It is probably Herbert Spencer’s fault. In Social Statics, Spencer spoke with contempt of louts who hang about tavern doors, who fight with and seek to cheat one another, refuse to take work of any kind, instead stealing the wages of their own wives for drink.

Regarding such people, Spencer asks: “Is it natural that happiness should be the lot of such? Or is it natural that they should bring unhappiness on themselves and those connected with them? Is it not manifest that there must exist in our midst an immense amount of misery which is a normal result of misconduct, and ought not be dissociated from it?” 19

It is true that Spencer thought that in every type of society there would be dishonest, violent people who refused to work or care even for themselves. When dealing with such people, Spencer thought there could be no social remedy but prison, or slow dissolute death. But in this point Spencer’s position is much like that of mainstream modern liberals---even if Spencer’s language is more colorful. Rawls, for example, accepts that even a “well- ordered” liberal democratic society will include people who he calls “politically unreasonable.” Among the politically unreasonable, presumably, will be people who we might call “economically unreasonable.” Such people make economic demands on their fellow citizens the force of which they would refuse to recognize if made by their fellow citizens against them. Thus modern liberals typically deny that surfers (or other less romantic, chronically nonproductive people---say, adult, full-time surfers of the world-wide web) have a right to be clothed, housed,

provided bandwidth and fed. Such people, like Spencer’s tavern lout, effectively deny the equality of their fellow citizens. Instead, they seek to use the state to harness the talents and efforts of their fellow citizens for their own ends, while refusing to allow their own talents to be made use of in any socially meaningful way. In effect, the full time web-surfers treat their fellow citizens the way Spencer’s lout treats his wife. In Rawls-speak, they reject the principle of reciprocity. Modern liberals, correctly, treat such people much the same way that classical liberals do.20

Like Locke, Spencer also thought that even among the vaster ranks of normal industrious people, there would be degrees of industry and talent and that material inequality would be a natural result. Intriguingly, though, Spencer does not justify the classical liberal society in terms of benefits to the supposedly deserving wealthy. Instead, Spencer advocates liberal institutions in terms of the material benefits that he predicts that system will provide to all the members of the society---at least all those who were nonviolent and willing to work.

In a fascinating exchange with the socialist H.M. Hyndman, Spencer says his theory is justified because of its benefits to the poorest workers—agreeing with the moral aims of the socialists

while dissenting only regarding the means. Regarding Hyndman, Spencer wrote: “Many things he reprobates I reprobate just as much; but I dissent from his remedy.”21 Spencer stood against calls to nationalize the English economy, just as he stood against “Progressive liberal” attempts to regulate private labor agreements. But even Herbert Spencer accepts some version the condition of material adequacy.22 [[strengthen this: in “The Coming Slavery”, Spencer explicitly says that his main objection to socialism is founded on his concern for the workers, not the owners.]]

[ [[build in from from Gaus “Why All Welfare States…Are Unreasonable” 1-2: Gaus writes: “J.R. McCullough, one of the great nineteenth century laaissez-faire political economists, was adamant that ‘freedom is not, as some appear to think, the end of government: the advancement of public prosperity and happiness is its end.’ [citing Principles of Political Economy, 5th ed. (Edinburgh: Charles Black, 1864) PP.187-88.]..the optimal welfare-maximizing economic policy?: that the welfarist ideal would best be advanced by provision of a legal and institutional framework---most important, laws of property, contract, and the criminal code---that allows individuals to pursue their own interests in the market and, by doing so, promote public welfare. In general, what might be called the “classical liberal welfare state”

claims to advance welfare by providing the framework for individuals to seek wealth for themselves, while welfarist such as Goodin instniat that the market order is seriously flawed as a mechanism for advancing human welfare and that in addition that the government has the competency to do better providing the good of welfare….” [jt: note these are political theory level arguments; note also that Gaus himself is critical of this welfarist tradition].

The list goes on. During the progressive era, Ludwig von Mises complained that advocates of the New Liberalism “arrogate to themselves the exclusive right to call their own program the program of welfare.” Mises calls this “a cheap logical trick.” Just because classical liberals do not rely upon direct, state-based programs and agencies to secure the material well-being of citizens, this does not mean that classical liberals are any less concerned for the poor. 23

Mises can be read as advocating classical liberal institutions on the simple consequentialist ground that such institutions maximize overall productivity. Consequentialism is only problematically related to liberalism, not least because consequentialism has difficulty guaranteeing that rights will be treated as inalienable.

But Mises’ actual argument is more subtle. In defending his preferred regime of wide economic liberty and strictly limited governmental power, Mises writes: “Any increase in total capital raises the income of capitalists and landowners absolutely and that of workers both absolutely and relatively…The interests of entrepreneurs can never diverge from those of the consumers.”24

Notice: Mises does not say “Classical liberal institutions generate the greatest aggregate wealth and so, even though they predictably deposit 20% of the population in a position of hereditary class inferiority, this of OK.” Instead, Mises think capitalist institutions are justified, at least in part, because he believes the likely outcome of human activity under those institutions will be materially beneficial for all citizens. Inequalities are justified, Mises seems to be saying, because they work to the benefit of the least well of members of society. Of course, this is an empirical claim. It might be turn out to be true. It might turn out to be false. But to understand the nature of the moral case Mises makes for the regime of wide economic liberty, it is vital to consider the fact that Mises makes that claim. Von Mises too accepts some version of the condition of material adequacy.25 In this, von Mises is much like Spencer, Smith, Mandeville and Locke…and Rawls, Dewey, Green and Mill too.26

What about Friedrich Hayek?27 Hayek too is committed to the substantive equality of citizens. Hayek argues that, in a free society, state-enforced rules should generally take the form of prohibitions rather than of specific positive commands. Unlike commands to perform specific actions, negative rules define a domain within which individuals are free to act as they think best. In a society structured this way, individuals are enabled to make the best use of their local knowledge—that is, the detailed knowledge each possesses about the particular circumstances of her or his immediate surroundings. A society that harnesses this local knowledge will be more productive than any society that adopts a system where the economy is centrally directed.

The justification of such policies, however, is not efficiency for the sake of efficiency. Hayek defends what he calls the Great Society on the basis of his concern for the equal freedom of all citizens. In particular, Hayek seems concerned that all citizens possess the material bases that make freedoms valuable. Thus, Hayek says of the market-based conception of liberalism he prefers that “its justification consists in its increasing the chances of all.”28 The “chances of all” Hayek is referring to are the chance for every citizens to for possess the material goods necessary to make their

politically protected freedoms valuable. Thus for Hayek, the deep justification of the institutions of constitutional liberalism is their ability “to enhance the probability that the means needed for the purposes pursued by the different individuals would be available.”29 Like the democratic liberals Freeman describes, Hayek defends the version of liberalism he prefers because he thinks this system best assures that everyone’s liberties and opportunities will be of significant value.

Notice again that Hayek’s advocacy of market-based institutions relies an empirical claim: the claim that, as a matter of fact, those institutions will in fact have the effect of most greatly improving the chances of all to have the material means needed to pursue their purposes. Why does Hayek bother to make that empirical assertion? He makes it because he senses that any satisfactory justification for a proposed set of institutional arrangements will be inadequate unless that justification includes a plausible predictive claim that those arrangements will secure for all citizens the material means needed to make their liberties valuable.30

Thus, in instances where Hayek fears that market mechanisms may NOT reliably act to satisfy his preferred material egalitarian standard, Hayek advocates governmental “correctives” to the

spontaneous order. 31 For example, Hayek thinks a liberal government should provide a uniform minimum income to all citizens who cannot attain this income through their own efforts: “There is no reason why in a free society government should not assure to all protection against severe deprivation in the form of an assured minimum income, or a floor below which no one need descend.”32

Similarly, Hayek recognizes that the self-respect of citizens often depends upon their having opportunities to develop their talents that they think are at least roughly like those available to their fellow citizens. “Perhaps the acutest sense of grievance about injustice inflicted on one, not by particular persons but by the ‘system,’ is that about being deprived of opportunities for developing one’s abilities which others enjoy.”33 Hayek therefore advocates public support of schooling: “There is much to be said in favor of the government providing on an equal basis the means for the schooling of minors who are not yet fully responsible citizens….”34

Hayek sees the family as an essential mechanism for the transmission of cultural values. Those values make possible the development of one’s abilities and talents--- including perhaps

even the capacity to benefit from schooling. Here again, he advocates a governmental corrective in cases where he thinks spontaneous processes will prove unable provide all children with a secure family environment. Regarding a secure family environment, Hayek says: “There can be no doubt that those who are either wholly deprived of this benefit, or grew up in unfavourable conditions are gravely handicapped; and few will question that it will be desirable that some public institution should so far as possible assist such unfortunate children when relatives and neighbors fail.”35

In all these cases, Hayek is quick to point out that such correctives will not provide people with what he calls “real equality of opportunity.” People differ in many attributes----physical, dispositional, and intellectual—which government cannot alter. To seek equality of opportunity in the literal sense of erasing these differences would produce a nightmare.36 Still, with respect to each of these goods---income, schooling, and the transmission of cultural values---Hayek is advocating an equalizing standard. In this, Hayek’s concern is for equality is substantive, rather than purely formal or procedural.

The correctives Hayek advocates are clearly governmental correctives. These services are to be provided outside the economic market, and outside even the markets of charity or good neighborliness. These policies and programs, by their very nature, cannot be enacted or enforced via the rules of just individual conduct that Hayek insists will normally be the proper basis of law within a liberal society. Laws directing that people be provided a minimum income or that children of broken families receive special support are paradigm instances of what Hayek calls taxis, not of nomoi. Further, and crucially, Hayek insists that such correctives are fully compatible with the deep principles that undergird the Great Society. Regarding the levying of tax monies to support the guarantee of a uniform minimum income, for example, Hayek insists that “this need not lead to a restriction of freedom, or conflict with the rule of law.”37 38

Milton Friedman? Notes that a capitalist society, where people are free to make payments according to product, will be marked by considerable material inequalities. At any given time, in such a society, some people will be far more successful materially than others. However, Friedman claims: “capitalism leads to less inequality than other systems” (Cap and Freedom 169). And for Friedman this is not just a by-the-way comment: the claim is

offered as a foundational justification for his view. Like many historical figures in the classical liberal tradition, Freidman too accepts a condition of material adequacy.

2. Material Egalitarians There…...

Contemporary scholars who advocate classical liberal political institutions are often thought of as moral (and/or technical) dinosaurs.39 Because these scholars advocate forms of liberalism that are enthusiastically capitalistic, it may appear that they affirm a narrowly formal conception of equality like the one Rawls made antique. However, many contemporary classical liberals seem to be committed to some substantive material egalitarian as well.

[[JT: OR: transition by way of Nozick’s introduction of libertarianism, taken as the philosophically cleaned up version of the more nuanced, “messier” classical liberal view (quotation to that effect by Fleischacker)…?].

Loren Lomasky, for example, advocates a state whose main activities are constitutionally limited to the protection of individual rights, including, notably the rights of property and contract that undergird commercial society. Yet Lomasky also thinks the state

should be empowered to secure the collective provision of genuinely public goods (“those for which features of nonexcludability and nonrivalry of consumption render market provision awkward”). Lomasky also advocates a safety net for citizens who fall into difficulties that neither their own efforts nor the voluntary efforts of others on their behalf can remedy. But on what grounds does Lomasky advocate the safety net? Is it a purely strategic concession? Does he advocate it because he has calculated that a safety net is the least support needed to keep the lowest classes alive and quite so that they can later be more effectively exploited by the denizens of the higher classes?

Intriguingly, this is not what Lomasky says. This safety net, Lomasky tells us, can be thought of as being required to lessen “strains of commitment” that hold the society together. Without the planned governmental interventions such as the safety net, those strains might make the libertarian principles of justice (jt: meaning: the regime of wide economic freedom) too difficult for the poorest people to accept. Lomasky’s inclusion of a safety net provision is a substantial expression of concern for the material well being of the least well off citizens.

Is it significant that Lomasky chooses to justify the safety net in terms of lessening the strains of commitment? Could Lomasky’s text be altered, without loss of meaning or plausibility, to say that those measures needed to maintain social peace so that the members of the advantaged classes can more effectively go about their business of exploiting the members of the lower classes? On the contrary, a concern to lessen the strains of commitment would seem to signal some sort of moral concern for the actual life prospects of every citizen. Such a concern could not be readily captured by a purely formal or procedural interpretation of liberal equality, far less by tactical terminology of class exploitation.

Lomasky goes further. He emphasizes that, his preferred set of classical liberal institutions in place, “the positive-sum character of the remainder of economic transacting will lessen [the strains of commitment] on all.”40 If the system of market exchange were set up so as to be zero-sum, this would mean that benefits accruing to some from transacting would be mirrored by losses borne by others. By describing transactions under classical liberalism as positive-sum, Lomasky does not necessarily mean that all parties will benefit equally from the market transactions in which they voluntarily engage. Presumably, some will benefit more than others. But Lomasky’s claim is that even if transactions provide

greater benefits to some than others, these transactions work to the benefit of all the participants, including those they benefit least. He is eager to claim, that is, that the effects of the operation of the system of political morality he recommends will be materially beneficial for all participants. Why does Lomasky find it important to claim that his preferred political system satisfies that condition? Lomasky finds it important because he too---whether wittingly or not----accepts and therefore is tracking some egalitarian-looking principle of material adequacy.

So too Erick Mack. Mack advocates free-market institutions on the basis of what Mack calls “SOP”----the self-ownership principle.41 Self-ownership is often thought to provide a philosophical starting place for classical liberalism that generates the moral divide between liberalism in modern and classical forms. Mack puts an interesting twist on this idea. According to Mack, the advocate of “SOP” can say: “’I am a friend of markets,’ he says, ‘partially because I expect markets to work as well as friends of markets expect them to…..[But] If markets do fail conspicuously vis-à-vis a given individual in ways that worsen her position by blocking her from bringing her self-owned powers to bear in the world that person will have a just complaint under the SOP.” 42 Mack too appears to accept the principle of material adequacy. Indeed, Mack

might even be read as affirming the idea, supposedly unique to modern liberals, that the function of the state is to secure conditions necessary to the development and exercise of the moral powers people have as citizens. He certainly tempts that interpretation. [If Mack could be read that way, then even accounts of classical liberalism that are founded philosophically on the principle of self-ownership may turn out to be compatible with a Rawls-style create-the-conditions-needed-to-exercise-moral- powers understanding of the role of the liberal state….].

Thinkers in the “Arizona School” also often advocate classical liberal institutions out a concern for the effects of those institutions on the poorest members of society. David Schmidtz: “It was suggested at a workshop that Thomas Aquinas needed little material wealth to flourish in the ways that matter, and my “fetish” with living in a developed economy ignores this fact. It is a curious example: Let us agree that Aquinas’s life (1225 – 1274) was short but sweet. Still, Aquinas was among the most advantaged in that society, not the least. It is one thing to say the high priest lives well enough in a materially poor society, and another to say the least advantaged live well enough.”43

[[Add section on Gerry Gaus: “Although today classical liberalism is often associated with extreme forms of libertarianism, the classical liberal tradition was centrally concerned with bettering the lot of the working class. The aim, as Bentham put it, was to make the poor richer, not the rich poorer (Bentham, 1952 [1795]: vol. 1, 226n). Consequently, classical liberals reject the redistribution of wealth as a legitimate aim of government.”]].44

So too: Jason Brennan: “Modern egalitarian liberals often correctly identify the test of a flourishing society: the end or minimizing of of domination, poverty, and medical want, and the spread of education, opportunity, peace, and full political autonomy.” Brennan implicitly accepts some version of what I call the condition of material adequacy. He emphasizes the importance of attending to empirical questions when doing the advocacy work of what I call political theory (and perhaps also when engaged in the purely identificatory work of political philosophy). Brennan worries that modern liberals often do not attend to these issues: “they quickly move from identifying the criteria of flourishing to concluding that a just society will enshrine these criteria of flourishing as the immediate, direct goals by which it constructs its policy. Unfortunately, little effort is made to determine whether

enshrining such goals is an aid, rather than an impediment, to achieving them. Living by the difference principle via Rawls’ favored institutions, e.g., is a way of enshrining concern for the poor, but it is not a way of helping them.” Brennan concludes: “ That a society flourishes while living by a set of principles is a test of those principles. That a society has principles that directly aim at flourishing is a different matter. If we have to choose between success and a symbolic concern for success, there is little argument to made in favor of the latter.”45

3. Material Egalitarians Everywhere?46

It is not only among professional political philosophers that we find expressions of concern for something like material egalitarianism. We also find such expressions, for example, among classical liberal legal scholars. Richard Epstein, for example, argues that the United States Constitution is a classical liberal document. “Although inconsistent on several points, the Framers of the original Constitution, the Bill of Rights, and the Civil War Amendments did start with some strong preference in favor of protecting liberty, property, and the social institutions they foster--- competition and free trade in all areas of human endeavor.” Epstein says the Progressive Court had to re-write the Constitution

to make it support the very different modern liberal ideal of governance they preferred: “A good theory of constitutional interpretation is not one that starts and stops with some rote meaning of text, but this charge could not be lodged against the Old Court whose understanding of the need to introduce the non- textual element of the police power shows a sensitivity to structure and function as well as text. Nor can it be said that the interpretation that the justices of the Old Court gave to liberty or property is at variance with ordinary usage or with the larger mission of strong individual protections under a regime of limited government.” Epstein, though, says that the Progressives were far less concerned with fidelity to the law: “They saw in constitutional interpretation the opportunity to rewrite a Constitution that showed in every turn the influence of John Locke and James Madison into a different Constitution, which reflected the wisdom of the leading intellectual reformers of their own time.”47

While rejecting the expanded economic powers that Progressive era jurisprudence placed in the hands of the state, Epstein also objects to libertarianism. Jurisprudentially, he says, libertarianism is alien to the legal history of the United States: “the Constitution is unambiguously in the classical liberal tradition.”48 Epstein says that “pure libertarianism” would have the state treat economic

freedoms as legal absolutes. Libertarianism has much in common with the classical liberal tradition Epstein defends. Both have a high regard for individual freedom, and so give great weight to the economic freedoms of citizens. Still, unlike libertarianism, the classical liberal tradition affirmed by the Founders holds “that some form of state power is needed to preserve the liberties that both groups believe should be protected.”49

Thus, Epstein says, the Constitution implicitly recognizes a police power. This power allows the state to enforce criminal laws against force and fraud, to prevent nuisances, and to guard against other rights violations. The Constitution also makes room for eminent domain, at least under strictly limited conditions. Further it allows for taxation to provide public goods, and calls for regulations to limit the monopoly powers of businesses. It also allows the government to act to protect the natural environment. Of course, under classical liberalism, there is a presumption against coercive state action in any of the areas. Legislative measures or executive actions in pursuit of these goals must prove themselves “well adapted to the end.”50 The classical liberal tradition provides greater protection to people’s economic freedoms than does the modern liberal, “New Court” tradition. Still, the classical liberal

tradition rejects the libertarian idea that economic liberties must be treated as moral absolutes.

Epstein is a constitutional scholar rather than a political philosopher. He does not always seek to make clear the moral commitments that support his jurisprudential views. However, when Epstein does offer moral arguments for the classical liberal regime, those arguments often reveal a concern for the substantive effects of classical liberal institutions on all the different classes of citizenry. Epstein suggests that libertarianism could be attractive because it seeks to bring about a broadly Paretian idea of efficiency. Since individuals have the best knowledge of their preferences, a system that allows them to make exchanges freely is that such exchanges can reasonably be expected to improve the situation of at least one person.51 He thinks that exchanges under the classical liberal regime of wide-but-not-absolute economic freedom, though, will be even more robustly positive sum. According to Epstein: “Competition enhances social welfare.” Thus: “For that social reason, and not for any fascination with the ‘possessive individualism’ that the Progressives denounced, the [system of competition] should be favored and protected while the [system of aggression] is deplored and restricted.”52

While objecting to libertarianism, Epstein’s reserves his strongest criticisms for the New Court jurisprudence that sees as having been pursued in the attempt to change the public philosophy of America from a classical to a modern interpretation of liberalism.53 Thus Epstein argues that “the standard interferences with employment contracts, such as minimum wage laws, antidiscrimination laws (in competitive markets only), collective bargaining laws, and Social Security requirements” are unconstitutional. In every case, the modern liberal state seeks to say that political office holders know and will protect the true interests of the citizens better than the citizens themselves. However, Epstein emphasizes, “the invalidation of those [social democratic] programs rests not on some narrowly egotistical view of private property….” Instead, Epstein says that his advocacy of classical liberal institutions rests on “…the social ground that this view does us more good in the long run than the endless creation of various ‘unfair’ practices, such as those under modern labor law, that introduce various forms of state monopolies, each of which further saps the productive juices from American society.”54

[add section on Randy Barnett]

We find a similar pattern of justification among defenses economic freedom in the genres of popular literature. Ayn Rand, for example, famously claims to care only about herself. And she says that if you want to be like her you should care only about yourself too.55 How strange therefore that Rand thought it necessary to pen the following lines: “The skyline of New York is a monument of a splendor that no pyramids or palaces will ever equal or approach. But America’s skyscrapers were not built by public funds nor for a public purpose: they were built by the energy, initiative and wealth of private individuals for personal profit. And, instead of impoverishing the people, these skyscrapers, as they rose higher and higher, kept raising the people’s standard of living – including the inhabitants of the slums, who lead a life of luxury compared to the life of an ancient Egyptian slave or of a modern Soviet Socialist worker.”56

Lest any of Rand’s close readers be led to think that her concerns about the material well being of her fellow citizens was merely a concern that they be better off than Egyptian slaves or modern socialist (or that she might think that capitalism benefits only people, such as Howard Roark, who are so talented that they can design sky-scrapers without even the benefit a B.A.), Rand took pains to point out that capitalism is a positive benefit to all who are

willing to engage in productive work: “Capitalism, by its nature, entails a constant process of motion, growth and progress. It creates the optimum social conditions for man to respond to the challenges of nature in such a way as best to further his life. It operates to the benefit of all those who choose to be active in the productive process, whatever their level of ability.”57

[add similar bits from Robert Heinlien: The Moon is a Harsh Mistress.]

[pure pop culture: that t-shirts of Che Guavara vastly outsell those sporting images of F.A. Hayek-----and, from a purely artistic perspective, who could complain? So too pop music: something like: “Advocates of social democracy have John Lennon and Yoko One; classical libs have, alas, only Rush.” Still, even most hard- charging Rush songs we find: (check “Red Barchetta,” or other Rush songs, for material egalitarian lines).

4. Caring When Advocating vs. Caring When Identifying

Of course, none of these classical liberal thinkers uses the language of justice in describing their commitments to material equality of their citizens. [quotation from Milton Friedman making precisely

this point]. So showing that classical liberals care about the material well-being of citizens is different from showing that they think all citizens are owed that concern as a matter of social justice.58 This is a striking difference between the democratic liberals and constitutional liberals with respect to the value of material eqalitarianism. Why do constitutional liberals repeatedly acknowledge the importance of material well being for equal citizenship within liberal societies but then just as consistently--- and sometimes, as with Hayek, even adamantly---deny that their evident concern for the material well being of all citizens should be expressed in the language of social justice?

I believe that this is an error on the part of constitutional liberals. This error that has had a distorting effect on not just on the self- understanding of constitutional liberals, but on the self- understanding of thinkers in the democratic liberal tradition as well. It has encouraged democratic liberals in the false belief that they distinctively carry the banner of concern for substantive equality. That idea, as we have seen, is the beating heart of the myth of modern liberalism.

Readers for Brown Workshop: the following few paragraphs are REALLY REALLY REALLY ROUGH…any help much appreciated…]]

[[Different thinkers in the market-liberal school present different patterns of material holdings a providing the needed justificatory support for their view. Occasionally, as with Rand, these thinkers express their concern for citizen’s material holdings only in weakly relational, cross-societal terms. Rand’s concern for material well being seems merely to be that the worst off members of a society based on the market-liberal principles she recommends will have greater material wealth than will the worst-off members of non- liberal societies. More often, though, we find thinkers in this tradition defending their view on the basis of its production of patterns of material holding that are more robustly egalitarian. Smith and Hayek, for example, express their concern for citizen’s level of material holdings in what we might call absolute egalitarian terms: they claim that their preferred system of governance will result in all citizens having sufficient material holdings to make their liberties valuable at all. Others, such as Madison and Mises, express their concern for material well-being simultaneously in absolute and relative egalitarian terms. They say that the outcome of the instantiation of the political principles they

recommend will greater material wealth for all and the realization some desirable boundary of inequality in the holdings of the least and the most well off members of society. So while all these constitutional liberals are material egalitarians, we find different authors presenting different material egalitarian patterns as providing the needed justificatory support for their political views.59

However, in the variation of their formulations, the constitutional liberals are again much like the contemporary democratic liberals, who hitch their wagons to different specific patters of material egalitarianism. Indeed, many of the central debates in academic political philosophy over the past twenty-five years have centered on disputes as to precisely which of the many rival high liberal conceptions of material egalitarians is the right one. Dworkin, for example, seems to think that the liberal commitment to equal freedom can allow a greater range of material inequalities between citizens than does Rawls. Some close followers of Rawls, notably Norman Daniels and Thomas Pogge, argue that Rawls’s own preferred principles allow too much material inequality.60 So too, Will Kymlicka: “The ideals of liberal equality are compelling, but they require reforms that are more extensive than Rawls or Dworkin have explicitly allowed.”61 Other high liberals, Erin Kelly

and Samuel Freeman for example, appear to believe that that degrees of material inequality Rawls’s formulation of justice as fairness would allow gets it just about right.

The key point, though, is this: a moral concern for material equality, or the alleged failure to be sensitive to material egalitarian issues, cannot in itself usefully distinguish the constitutional from the democratic liberal tradition. Democratic liberals are indeed committed—in their various preferred specific formulations---to the ideal of material equality. But, as a constraint at the level of regime advocacy at least, constitutional liberals seem also to be committed—in their various preferred formulations--- to some material egalitarian ideal too.

But so far I have only shown that constitutional liberals seem to have some as-yet under-theorized commitment to substantive equality at the level of regime advocacy.(peering into the pool, trying to make out the shifting, broken images we see in classical liberal regime adovacy arguments). Can these amorphous commitments be described as somehow reflecting a higher level commitment to an egalitarian conception of social justice, a commitment affirmed at the identificatory level of political philosophy?? In this chapter, I have merely attempted to gather

some materials for that project.62 To fully exposit constitutional capitalism on the identificatory of political philosophy, we must accomplish to further tasks. One is to work these materials into a conception of social justice that captures all the main features of the modern liberal view of justice (roughly: justice as fairness); the other is to demonstrate that the classical liberal institutional regime includes institutional “arrangements” that might realize that conception of justice, at least as a matter of ideal theory analysis. Let’s turn now to those tasks.

Endotes:

1 That is, all these classical liberals could be read as implicitly affirming the Master Value I mentioned in The Great Divider chapter. In Freeman’s formulation: “The primary role of democratic government is to maintain the conditions for realizing “a moral ideal of persons as free and equal self-governing agents who have an essential interest in maintaining their freedom, equality, and independence” FREEMAN 51. 2 Here’s a beginning of such a list, though I can quintuplicate it: Thomas Nagel, Will Kymlicka,, Joshua Cohen, Norman Daniels, Amy Gutmann, Stephen Macedo, Samuel Freeman, Martha Nussbaum, William Galston, Cass Sunstein, David Estlund, Jeremy Waldron, Charles Larmore, Donald Moon, Dennis Thompson, Corey Brettschnieder, Kent Greenawalt, Mariah Zeissberg etc etc etc etc 3 Quotation from Kymlicka…. 4 Get cite, clean up quotation. 5 “Some Considerations of the Consequences of the Lowering of Interest and the Raising the Value of Money” (1691). http://socserv.mcmaster.ca/econ/ugcm/3113/locke/consid.txt. I thank Dennis Rasmussen for bringing this passage to my attention. 6 Locke: “Charity gives every Man a Title to so much out of another’s plenty, as will keep him from extreme want, where he has no means to subsist otherwise…” (First Treatise, I.4. sect. 42)

7 [Liberty Fund edition p. 37 --fill out]. 8 “The Grumbling Hive” (1705), in *The Fable of the Bees*, Indianapolis, Indiana: Liberty Classics, 1988 (1732 edition). 9 Dennis R. conversation: suggests that, like Rawls, Smith could be interpreted as being concerned to address inequalities ex ante rather than merely seeking ex post “repairs.” Thus, DR says, Smith’s advocaty of programs of education, esp for children of laborers…. 10 Check with Dennis Rasmussen re proper citations to him and other for all these smith paragraphs, and this line about Malthus in particular. In this draft, I am simply quoting D.R. quoting Malthus. Get citations from Malthus, and Rasmussen. 11 (from Rasmussen email message of 1 march 07, who cites WN IV.viii.4, 644; see also IV.viii.49 660). 12 (Rasmussen cites WN I.viii.36, 96).] also get citations to that recent Vanderbilt law prof article on rationale for Smith’s plan for proportional taxation---sent to be by Dave E summer ’08. 13 Rasmussen writes: “His concern for the lot of the poor in an atmosphere that discouraged such concern led Gertrude Himmelfarb to claim that even if the Wealth of Nations was not novel in its economic policy recommendations, ‘it was genuinely revolutionary in its view of poverty and its attitude toward the poor’” (email of 1 march 07).

14 (Rasmussen cites ED, 567; see also LJ, 83, 343; WN I.viii.27, 91.)] 15 Get citations to all. Also check new book on Madisonian jurisprudence by George Thomas…. 16 Stephen Holmes, Passions and Constraint: On the Liberal Theory of Democracy, University of Chicago Press, Chicago: 1995, 29-30, emphasis mine. 17 18 “James Madison (FED 5), like Hayek, feared all attempts to politicize the distributional struggle of the market place” (socialists from Canadian conference: Democratic Equality: What Went Wrong?, intro, around page 10-13ish). Jt perhaps use this when return to the question of means? After all, my aim here is just to demonstrate the Madison et al. share the material egalitarian ideal with the high liberals…. 19 The lines before the quoted passage read: “On hailing a cab in a London street, it is surprising how frequently the door is officiously opened by one who expects to get something for his trouble. The surprise lessens after counting so many loungers about tavern doors, or after observing the quickness with which a street-performance, or procession, draws from the neighboring slums and stable-yards a group of idlers. Seeing how numerous they are in every small area, it becomes manifest that tens of thousands of such swarm through London. ‘They have no work,’ you say. Say rather that they either refuse to work or quickly turn themselves out of it. They are simply good-for-nothings---vagrants and sots, criminals and those on the way to crime, youths who are burdens on hard-worked parents, men who appropriate the wages of their wives, fellows who share the gains of prostitutes; and then, less visible and less numerous, there is a corresponding class of women.”Spencer The Man versus the State Liberty Fund “The Coming Slavery” p.32. 20 [[JT: Perhaps add bit about how people on the left are eager to tie spencer’s advocacy of capitalism with literal social Darwnism----eg capitalism as a program of cultural eugenics (eg Flieschacker’s strange argument to this effect). Exegitically, not at all clear that Spencer was a social Darwinist in this sense. But even if so: eugenicism is not unique to classical liberalism: G.H. Meade’s seminal proposal for “property- owning democracy” includes eugenicists elements, and more explicitly than Spencer. (Common among Progressives, Carrie Buck case, etc.)]]. 21 Man vs the State, 69-70). Jt cross-check this citation with my copy of the pamphlet exchange between Spencer and Hyndman. 22 Perhaps build in section on Spencer’s advocacy of radical land reform---check research folder on Spencer for materials. 23 Human Action, p. 834.

24 (Liberalism: In the Classical Tradition. 164-5----citation here is from JT old paperback---get page citation to new Liberty Fund edition. 25 Further, its clear that Mises thinks his acceptance of this condition has a JUSTIFICATORY role in his defense of classical liberal institutions. Thus: “In seeking to demonstrate the social function and necessity of private ownership of the means of production and of the concomitant inequality in the distribution of income and wealth, we are at the same time providing proof of the moral justification for private property and for the capitalist social order based upon it” (Liberalism: The Classical Tradition, Liberty Fund, 2005: p.14. 26 jt note: I’m accepting the idea that dem liberals accept the condition of material adequacy. But note that, ironically, it is not entirely clear that they. This is because democratic liberals, more than constitutional libs, have followed Rawls’ lead into the exposition of their view on the purely ideal/philosophical/identificatory level…Jay’s paper on the possible paradox this generates for them… 27 tid bit from wikipedia: “Hayek also rejected the label "laissez faire" as originating from the French tradition and alien to the beliefs of Hume, Smith and Burke.” 28 (“Liberalism” 5 of 15, reprinted chapt 9 New Studies, update citations to that source). 29 (2 of 15). 30 F.A. Hayek noted, "The proletariat which capitalism can be said to have 'created' was thus not a proportion of the population which would have existed without it and which it had degraded to a lower level; it was an additional population which was enabled to grow up by the new opportunities for employment which capitalism provided."[40] CONSTITUTION OF LIBERTY (NO PAGE GIVEN!) 31 In The Road to Serfdom, Hayek suggests his openness to regulations concerning the “use of certain poisonous substances” or to “limit working hours”---indeed, according to Hayek, the “only question here is whether in the particular instance the advantages gained are greater than the social costs they impose” (Road 43), quoted in Gaus “Why All Welfare States…Are Unreasonable” p. 31. 32 Mirage 87. For a similar position, see Milton Friedman…. 33 Mirage 87 34 Mirage 84. Again, for a similar position, see Milton Friedman…. 35 Mirage 87 36 Kurt Vonnegut’s short story, Harrison Bergeron. 37 Mirage 87. A puzzle for JT, the next sentence in the text reads: “The problems with which we are here concerned arise only when the remuneration for services rendered is determined wholly by authority, and the impersonal mechanism of the market which guides the direction of individual efforts is thus suspended.” {I don’t yet understand how this claim coheres with the sentence I quote in the main text above.} 38 [[perhaps hayeks commitment to evolutionary rationalism explains why/requires that he reject the idea of social justice. That is, perhaps evolutionary rationalism goes all the way down for him,

such that all values are evolutionarily selected (jt: see notes from discussion of this in ps217, file named: “PS217 chpt4,5.doc”). See also Keith hankins paper on Oakeshot’s critique of Hayek---Rationalism in Politics: page 10)38. what should the minimum income be? Or better: what should the distribution of basic rights and good be? Perhaps hayeks commitment to evolutionary rationalism requires that he say that we cannot know in advance: a discovery procedure: the question about basic goods and liberties is thus just like the question, how many nikes should their be? Call this Pure Discovery View: …all questions regarding the distribution of material goods, including questions about what the lowest income in society should be, are mere objects of discovery. Adam Tebble defends an exegetical reading along these lines: get latest version from him. Often attributed to Hayek. But does not square with the text----most notably with passages when he affirms social justice as concept….

39 (what do I do with Nozick? Does he accept the condition of material adequacy? Is he a “classical/lowliberal in my sense? Does he work at level of nonideal theory, like all these others, or is he (Erik Mack) the only ideal theory advocate?)

40 Loren Lomasky, “Libertarianism at Twin Harvard” Social Philosophy & Policy 2005, 192. Lomasky is here expositing the conception of libertarianism he prefers through the mouth of a character he calls Twin Rawls---thus his employment of the Rawlsian technical phrase ‘strains of commitment.’ 41 [[JT NOTE: Jay Brennan recently called my attention to this line by Mack. I need to read the article in full and fix this paragraph accordingly. Till then, every exegetical claim made here about Mack’s position should be taken as provisional.]]

42 Erick Mack “Self-ownership, Marxism, and Egalitarianism: Part II: Challenges to the Self-Ownership Thesis” PP&E 2002; 1; 237, emphasis mine. 43 (Elements of Justice, 177—emphasis in original? Jt check.) JT: do more with schmidtz---LOTS of good material for me here---bits about all boats rising, implicitly suggesting that if all boats did NOT rise this would count as mark against. Those passages also make clear that he’s operating at the level of ADVOCACY--- though need to sort out how Schmidtz’s consequentialism seems to blur my political theory vs political philosophy distinction….. 44 So too, Gerry Gaus: “Although today classical liberalism is often associated with extreme forms of libertarianism, the classical liberal tradition was centrally concerned with bettering the lot of the working class. The aim, as Bentham put it, was to make the poor richer, not the rich poorer (Bentham, 1952 [1795]: vol. 1, 226n). Consequently, classical liberals reject the redistribution of wealth as a legitimate aim of government.” (quotation in text is from Stanford Encyclopedia of Philosophy, get primary source quotations from Gaus). Gerald Gaus, The Modern Liberal Theory of Man. New York: St. Martin's Press, 1983. ‘Public and Private Interests in Liberal Political Economy, Old and New’ in Public and Private in Social Life, S.I. Benn and G.F. Gaus, eds. New York: St. Martin's Press, 1983: 183-221. ‘Property, Rights, and Freedom,1994, 11 Social Philosophy and Policy: 209-40. Justificatory Liberalism: An Essay on Epistemology and Political Theory. New York: Oxford University Press, 1996; Political Concepts and Political Theories. Boulder, CO: Westview, 2000. [GREAT BITS FROM JERRY GAUS: “Why All Welfare states (includidng laissez-faire ones) are Unreasonable” SP&P 1998, 30-31: Gaus offers survey of classical liberals who justify the state in terms of its propensity to

deliver welfare. His discussion inclues a useful list of nonmarket regulations that classical libs advocate. Most important, though, Gaus also give an argument, about why classical libs should NOT rely on these sort of “instrumentalist” arguments….Need to study this: on a quick read I did not find it persuasive, but lots of good materials here to help me elucidate my pol phil vs pol theory distinction…].

45 “Rawls’ Paradox, Constitutional Political Economy (2007) 18:287-299, p. 288. Intriguingly, in the conclusion of his article Brennan writes: “Rawls’ assumption that one can do ideal theory first, and then look at compliance issues and how institutions actually work second, may be what leads him to problems mentioned in this paper. Further empirical investigation may show us that the solution is to abandon some of Rawls’ favored institutions even if we should keep his theory of justice” p. 298, emphasis mine. 46 47 134-5. Epstein comments: “The manifest irony here is that the same intellectuals who attacked the members of the Old Court because of their narrow and prescientific point of view were guilty of a massive disregard of the basic established principles of economics there were well known to Adam Smith and David Ricardo. Those principles were trampled by the mercantilist impulses of the day. No judgement about social welfare can be made simply by celebrating the gains to one preferred group….The only programs that should survive are those that produce some net social improvement.” (73). 48 16. 134-5. 49 16. 50 17 51 14. 52 16. Also: “The private voluntary contracts that may result [under classical liberal institutions] are positive-sum games for the parties to them, and whatever harm ordinary contracts of sale and hire wreak upon competitors (and it is real harm, no doubt) is more than offset by the gains to the parties and to consumers. We are all systematically better off, therefore, in a regime in which all can enter and exit markets at will than in a social situation in which one person armed with the monopoly power of government, ca license or proscribe the actions of others.” (15). See also 74. 53 Add general citation here to Epstein Takings, (1985?). 54 How the Progressives Rewrote the Constitution Washington, DC: Cato Institute, 2006, p. x-xi, emphasis in original. 55 (see, eg, The Virtue of Selfishness). 56 “The Monument Builders” from The Virtue of Selfishness 57 “The Divine Right of Stagnation.” 5858 Freeman: “The major historical representatives of the liberal tradition (Locke, Adam Smith, Kant, Mill, and so on) also accepted that one of the roles of government is to provide for the poorest

members of society when they are unable to provide for themselves. But only a few of them saw this as a duty of justice (not simply public charity), the benefits of which the poor could claim as a right. Different still is the idea of distributive justice, in the modern sense of a just or fair distribution of income and wealth. Rawls suggests that unlike society’s duty of assistance, its duty of distributive justice has no ‘target’ or ‘cut-off’ point….This idea of distributive justice is relatively recent….” RAWLS 86-7. See also Fleischacker. 59 From conversation w/ keith hankins 12 July 2008: Jt: distinguish three positions: 1. Formal egalitarians: care about everyone but formal/legal/procedural only[that is, say the JUSTICE requires this]; 2. Material egalitarians: have substantive concerns about the worth of everyone’s liberties---ie express concern re how those at the bottom will do ok [that is, JUSTICE requires this]; 3. Material equalitarians: that inequalities in the worth of liberties experienced by different classes of citizens should be limited [again, JUSTICE]. These three different view think about “class” in different ways: 1.: no legal disabilities, but if system operates so that classes emerge that is ok; 2.: system must operate so that no underclass develops; 3.: system must operate so that no non-talentbased classes emerge. (positively: so that the only social striations that emerge are those based on talent- groupings).

60 Daniels “Equal Liberty and the Unequal Worth of Liberty” in Reading Rawls: Critical Studies on Rawls’ ‘A Theory of Justice’ Stanford, CA: Stanford University Press, 1975: 253-281; Pogge Realizing Rawls Ithica, NY: Cornell University Press 1989: 127-148. 61 Kymlicka Contemporary Political Thought, p. 87. 62 Still, even the bare materials assembled here are enough to make unsteady the suggestion that libertarianism should be thought of as a cleaned up version of the traditional classical liberal view. More important, these materials will help us see the shape of the theory of social justice that might be affirmed by classical liberals. Compared to libertarianism, this theory coheres more closely with the arguments of actual thinkers in this rich tradition. This theory also is more attractive than libertarianism on purely moral grounds. Both exegetically and morally, therefore, constitutional capitalism will prove itself as the superior interpretation of the classical liberal view.