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Who Gets to Define and Impose the “Common Good”?
George Will’s column, When American Conservatism Becomes Un-American, talks about Senator Marco Rubio’s offer of “common-good capitalism,” which is capitalism minus respect for individuals’ right to freely express their preferences and values in the marketplace, and about Harvard Law Professor Adrian Vermeule’s offer of “common-good constitutionalism,” which is the Constitution minus respect for “individuals’ diverse notions of the life worth living.”
Both the Senator and the professor want the power to define and impose a “common good” that doesn’t respect the common man’s freedom. Neither specifies how they will identify the common good, nor do they provide a plan for preventing the power they demand from being abused.
Both see very real problems in the American economy, and they place the blame on “unfettered capitalism,” ignoring Washington’s countless fetter factories, including:
- Bureau of Alcohol, Tobacco, and Firearms (ATF)
- Commodity Futures Trading Commission (CFTC)
- Consumer Financial Protection Bureau (CFPB)
- Consumer Product Safety Commission
- Drug Enforcement Administration (DEA)
- Employment and Training Administration (ETA)
- Environmental Protection Agency (EPA)
- Equal Employment Opportunity Commission (EEOC)
- Farm Credit Administration (FCA)
- Federal Aviation Administration (FAA)
- Federal Communications Commission (FCC)
- Federal Deposit Insurance Commission (FDIC)
- Federal Election Commission (FEC)
- Federal Energy Regulatory Commission (FERC)
- Federal Highway Administration (FHA)
- Federal Maritime Commission (FMC)
- Federal Railroad Administration (FRA)
- Federal Reserve Bank
- Federal Trade Commission (FTC)
- Food and Drug Administration (FDA)
- Occupational Safety & Health Administration (OSHA)
- Office of Energy & Renewable Energy
- United States Nuclear Regulatory Commission (NRC)
- United States Securities & Exchange Commission (SEC)
Their solution? More fetters.
They see the inequities caused by crony capitalism, codified by government-created cartels in industries such as banking, consumer products, pharmaceuticals, healthcare, and shipping. Their solution? More cartels – more special privileges for favored companies and organizations and even, in the case of Vermeule, favored religious institutions.
Before giving up more of our freedom and imposing the new government controls that Rubio and Vermeule want, let’s try eliminating existing government programs that coercively create and sustain poverty and inequality. For example, let’s stop:
- Penalizing companies for hiring low-skilled workers. Minimum wage laws make it more expensive to hire such workers and make it that much harder for the least employable (i.e., the least educated, the least experienced, and the most discriminated against) to get and retain jobs.
- Proliferating job licensing.
- Creating new regulatory hoops for would-be business owners to jump through.
- Restricting school choice. Parents should be able to get their children out of failing schools and into schools in which they can actually learn to read and write.
- Imposing rent controls, which create shortages of low-cost housing.
- Imposing zoning restrictions, which also create low-cost housing shortages.
I disagree that that’s what it means to be conservative today, that Rubio’s (or mine) notion of conservatism is illiberal, and that what you describe was the view of the Founders in general. Liberty involved government, even an active (by modern standards) government: confirm thy soul in self control, thy liberty in law. They went hand in hand. The Founders were not libertarians.
Entirely? I don’t see evidence of that.
I think Richard Epstein would say that the tort law of nuisance could handle this.
This would be my understanding, too.
“Are you kidding? Are you kidding?”
Isn’t that what Speaker Pelosi said when someone questioned the constitutionality of the Affordable Care Act?
Yes. It’s one of the reasons I hate her with the heat of 1,000 suns.
You shouldn’t hate stupid people.
I’m not going to respond to this in detail at this time.
I dissent from the radical libertarianism expressed in the OP. I do not think that legislating for the common good, or the general welfare, is anti-American. To the contrary, I think that radical libertarianism is anti-American, if by “American” we mean in accordance with our founding values.
There is an unfortunate tendency for radical libertarians to view any legitimate legislation of public health, safety, welfare, or morals as the equivalent of fascism or communism. It is not. It is actually the American system.
On the question of “who decides,” the answer is generally “the legislature.” There is an important role to be played by the other branches, of course, including judicial limitations on legislation that runs afoul of Constitutional rights. However, people do not have the Constitutional right to do whatever they please, and rhetorically referring to the people as “the common man” doesn’t change this.
With which of my “radical libertarian” suggestions do you disagree and why?
We’re all flawed.
I’m not so sure. There were real clean air and clean water problems that weren’t handled by the tort law of nuisance. Besides, interstate effects like this is precisely the kind of thing the federal level was designed to regulate.
During America’s industrial revolution, pollution was worse than it needed to have been because the courts refused to enforce property rights. When people sued factories for polluting their air and water, for example, judges decided in favor of the factories on the utilitarian basis of “the greatest good for the greatest number.” Judges reasoned that more people – employees and customers – benefitted from the factories’ activities than were harmed by their pollution.
Had property rights been enforced, the factory owners would have been required to pay restitution for the harm they were doing, giving them an incentive to find ways to reduce that harm. Settling ponds, for example, could have been used to eliminate the heavy solids released into streams and rivers. Perhaps, the companies could have even found uses for those waste solids.
Standard Oil, for example, found ways to use gasoline, which, before, had been considered a waste product and dumped into the nearest river.
Given the proper incentives, people find ways to turn problems into opportunities.
Capitalism means that people get to keep most of the money they earn from their work. As defined that way, it has uplifted more people out of poverty than any other economic system that has ever existed.
It’s like government of the people, by the people, and for the people. It’s hard work, there are risks, and it doesn’t always succeed, but it is better than anything else any country has ever tried.
This is engaging a bit of historicism when it comes to understanding what is meant by “property rights”. You’re using a very modern definition, one that in the 18th and 19th centuries would have been foreign. Historically there has been (and still exists today here and there under various guises like “squatters’ rights”) that the best use of something is use, and by not using something (land, for instance), or if you are not using something as well as someone else might (basically the argument in the Kelo case), then you forfeit any claim to that land. This was the driving mentality for removing Native Americans from their land – they weren’t using their land “correctly” or “to its greatest good”. This was also why courts sided with polluting factories too – they sure as hell were enforcing property rights, but by a very different definition.
This was also emblematic with the problems with land squatters – you might have “owned” a claim, but if you didn’t get out there to stake it and build a house on it before someone else, you lost the claim. This too survives into modern law over property line disputes. If you do not mark your borders and go out every so often to police them, and a neighbor moves a fenceline or squatters build a house, after a period of time the property becomes both defacto and de jure theirs.
The notion that property rights are absolute, inviolable, and eternal is rather recent. The notion that someone else’s pollution could be penalized for ruining your land, even if you were not “using” your land, is also recent, it took legislative and judicial work (cases and laws) to advance, and those advances included using the EPA to deal with matters that cross state lines and affect things nationally.
None of your suggestions are exactly radical, and most are goals shared (albeit at different levels of priority) across the right spectrum, from Rob Long squishes all the way to the anarcho types. Some (like licensing and school choice) are increasingly vocalized by the moderate Left too.
Conservatism is NOT libertarianism.
To be fair, the two overlap in a lot of areas, depending on your definitions of each.
Personally I’ve gotten to the point where I don’t know what in hell “conservatism” actually means of late, practically speaking, because there are so many out there proclaiming that various things are somehow not “real” conservatism. It’s all taken on a “one true Scotsman!” kind of vibe. And frankly, any given person is conservative where they are conservative, liberal where they are liberal, libertarian where they are libertarian, and impossibly self-contradictory the rest of the time. And all of that is before before breakfast…
My operating definition of conservatism for quite some has been: not collectivist and not libertarian, not authoritarian and not anarchic. Ot maybe more accurate, all of the above as there are truths about human nature and human structures represented by all of those spectrum point, despite the obvious tensions. In addition, conserving of a specific system and approach to governing: the Constitution and a Judeo-Christian outlook.
If your definition rules out grassroots collecting and asserting common values, then perhaps you are more libertarian.
Traditional conservatism doesn’t rule out common good, commonwealth, or common space. If your idea conflicts with those, you’re less conservative and more libertarian.
I disagree. There were court cases in the 19th Century in which private individuals sued factories for fouling the air around their homes or the streams and rivers that flowed through their land. There were also cases in which farmers sued railroads for the embers that blew out of coal-fired steam engines and set their crops ablaze. The courts acknowledged that private property was being damaged, but they found for the defendants based on their belief that the benefits to the public of the factory or railroad in question outweighed the costs to the individuals. There was no dispute over what the term “property rights” meant.
My point is, that had the courts upheld property rights rather than deal in utilitarian calculations, the companies in question would have had incentive to reduce the harm they were causing. Settling ponds and ember screens are hardly high-tech innovations that had to await the 20th Century.
The problem is that most of “We The People” are rationally ignorant about politics. Rationally, because our votes have an infinitesimal chance of changing anything. Moreover, the time needed to become knowledgeable about government is growing exponentially as government grows and it touches ever more aspects of our lives. Even the government itself cannot say with any certainty how many agencies and departments it has.
Exactly. That’s why people who are atheists say they don’t need a religious system because it’s “obvious” what morality is. They are unable or unwilling to acknowledge that they have effectively been brainwashed (in the best possible way) to accept a system that is already embedded in the culture.
Exactly, and the way to form this base is to destroy the divergent element, and thereby bring things in to conformity once again. I propose we destroy that section that Vermuele and Rubio are apart of, because that will amuse me the most, and cause my political enemies the most pain. All for the greater good, that is what is important.
Progressives condemn Western Civilization from the vantage point of the system of morality that Western Civilization created – a system of morality, by the way, that Progressives claim to reject.
We all have our target lists, I suppose. At the moment mine is filled with people who see racism lurking in everything, cannot bring themselves to actually condemn the looters and rioters, then shout me down for not agreeing with them.
But isn’t forcing someone to use an ember screen or settling pond infringing on their property rights?
And between the farmer whose field was lost, and the nutter with the embers, who likely had more money to hire lawyers? A bankrupt farmer is a farmer a lot less likely to sue.
Refutations to those utilitarian arguments did not arise a vacuum, they arose because the justice system of the time needed correcting, and tort laws and case histories were not catching up quickly enough.
I think it’s been tough for conservatives (like me) who generally believe in business and markets to admit that The Great Invisible Guiding Hand of Capitalism doesn’t always solve every problem. This is where Trump has been an improvement over traditional GOP rhetoric straight out of the Wall Street Journal. “Your town will die. But on the other hand, the great thing is, wages will fall!”
Sure, I get pissed off at headlines like “US Govt Makes Refrigerators More Efficient”. No, Whirlpool, Norge and GE made them more efficient. The Feds just forced them to work harder at it. Private enterprise did the work. But…
…pure market forces didn’t do the job. Detroit didn’t make cars safer out of competitive pressure. Electric utilities didn’t clean up their smokestacks because it made business sense.
Well, that’s one way of trying to set boundaries to what Conservatism is or is not. Russel Kirk had his 10 point list, meanwhile, which seems to describe more of a mindset of maintaining tradition and continuity with the past, resisting change except where necessary.
I would posit that my original statement is still true, about where people are conservative, liberal, and everything else all at once, in different mixes.
Case in point: Trans-humanism is radically individualistic in its gnostic assertions that we are all sovereign Wills trapped in bodies, and that we therefore have a right, and indeed a duty, to remake our physical selves so as to reflect our “real” selves, until such time as we can be liberated into machines… or whatever. And yet… they also scream bloody murder that everyone else is collectively obligated to coddle their fantasies (and pay for their individualistic surgeries). Transhumanism is a walking (or hobbling – for the amputation fetishists) hot mess of self-contradictions that, on its surface sounds very libertarian (radical personal autonomy), but from which most libertarians I know run away.
No, the courts wouldn’t have forced any technology on the companies. Presumably, they would have had them pay damages, e.g., reimburse the farmers for their burned crops. The companies could then decide whether they wanted to continue paying damages or figure out some way to keep the embers from flying out of the cab.
You’re right, the utilitarian arguments didn’t come out of nowhere, but they weren’t the result of a lack of tort law. We inherited our tort law from England, which had a very rich history of court cases. However, Utilitarianism was quite the fashion in the 19th Century. It’s germs were started in the 18th Century, and came into it’s own with Jeremy Bentham (circa 1840) and John Stuart Mill (circa 1860).