Why I still think of myself as a man of the left (Part 2 of 3)

I tend to think of conservatism when I think of the right and of Edmund Burke when I think of conservatism. There is of course more to the right than conservatism and more than one way to read Burke. This is neatly illustrated by an exchange between Corey Robin and Mark Lilla following Lillla's review of Robin's book The Reactionary Mind: Conservatism from Edmund Burke to Sarah Palin in the January 12, 2012, issue of The New York Review of Books.

"Conservatism," says Robin, making what he acknowledges is a revisionist claim, "is a moral vision in which excellence depends upon hierarchy. Inequality is the means, not the end—that is a belief...shared by everyone from Burke to Ayn Rand, the slaveholders to Ludwig von Mises."

To this Lilla replies that the point of his review was

"to distinguish conceptually between conservatism, which is informed by a view of human nature; reaction, which is informed by a view of history; and the right, which is a shifting, engaged ideological family that, in this country, includes a few genuine conservatives, radical libertarians, neoconservatives, social issues reactionaries, evangelicals, foreign policy hawks, e tutti quanti, who have disagreements among themselves."

Lilla takes figures like Sarah Palin, Glenn Beck, and Newt Gingrich at their word: when they "demonize educated elites and praise the wisdom of 'soccer moms' and plumbers, they mean it. And those on the bottom rung who cheer and vote for them know what they are cheering and voting for." This, he says, is "the most important and disturbing development in our politics today, the apotheosis of ugliness, brutishness, baseness, and ignorance as political ideals on the American right."

My take on Burke and conservatism is more in tune with Lilla than with Robin. There I find ideas that merit consideration wherever one falls on the political spectrum. I have in mind the role that tradition, habit, and custom in play human affairs, the importance of order in civil society, and a hearty skepticism about utopian schemes, however praiseworthy their aims.

Lilla's depiction of the right as a shifting, engaged ideological family captures it nicely and is also applicable to the left. It does not, however, explain the disconnect between Burkean conservatism and the libertarian bent of many Americans who identify themselves as conservative. It so happens that Vox recently published the transcript of a podcast discussion by Ezra Klein and George Will about Will's new book, The Conservative Sensibility, where Will "tries to rescue conservatism from the perversions of the Trumpist GOP."

For Will the divide between Burkean conservatism and the American flavor goes back to the American Revolution and is so great that we end up with one word naming two very different ideologies:

"Yes, the people who say conservatism wants to defend order have a good point but the wrong country. European conservatism evolved in defense of established institutions, orders and hierarchies, often nobility, often monarchy, often established churches. And it became self-conscious and articulate under Edmund Burke, who was of course in strong recoil against the French Revolution, and its turmoils...

"American conservatism is something of the reverse, which is to say, it celebrates and wants to reconcile people to the hazards and frictions granted, and the creative destruction, the exhilaration of a free society."

Will hitches the wagon of his "broadly libertarian" vision to "what [Friedrich] Hayek called the spontaneous order of the market society." The American constitution, in Will's view, is fundamentally concerned with the sovereignty of the individual. Government and the administrative state are highly suspect in the best of circumstances and inherently susceptible to tyranny, with the tyranny of the majority to be feared as much as any other. To the extent that provision is made for justice, domestic tranquility, and the general welfare in the free-market, lightly governed society Will envisages, this rests on the presupposition of a civil society with "a moral capital nurtured by religious and other institutions."

This presuppostion about civil society and moral capital is fine as an ideal but about as starry-eyed and utopian as anything on offer from the left. Social welfare programs, whether in the form of the modest and frazzled social safety net in the US or more extensive European models, came into being because religious and other institutions of civil society could not adequately respond to the misery and suffering that went hand in hand with the market society. Albert Camus put it in somewhat starker terms than I would use: "I don't think that charity is a useless emotion, but I think that sometimes its results are useless, and a constructive social policy is better." The problem is not that charity's results are sometimes useless but that they can never go far enough. Charity is a needed supplement to a good social policy, not a replacement for one.

Much the same goes for financial, business, environmental, and other government regulation. The spontaneous order of the market failed to provide for fair wages, workplace safety, an end to child labor, clean air and water, and much else that is requisite for individuals to have a shot at a good life. The Environmental Protection Act, signed into law on January 1, 1970, was inspired by the Cuyahoga River fire of 1969. Regulation to protect the rights of human subjects in biomedical and behavioral research came in response to German atrocities committed in the name of science during World War II, the thalidomide disaster of the 1950s, and numerous research improprieties in the US, perhaps the most chilling being the Tuskegee syphilis experiment of the 1930s, which was conducted without the informed consent of participants. This stuff does not come about just because some leftist thinks it's a nifty way to hamstring business and stick it to the wealthy bosses.

Conservatives are right when they point out that government intervention does not always have the desired effect. Government does not always get it right. Neither does the private sector. Businesses close stores, factories, warehouses, &c., downsize, and declare bankruptcy all the time in the creative destruction of capitalism that conservatives and, it should be added, neoliberals celebrate with not much regard for the many who suffer the fallout from it. This creative destruction may bring benefits of innovation and growth. It also comes at a cost for ordinary people who are not in a position to set up golden parachutes and cushioned landings for themselves.

In a better world we would find better ways to subject rules, regulations, and actions of the administrative state to periodic, rigorous review to remedy unintended, unanticipated, and undesired consequences by revising, replacing, or eliminating regulations as appropriate. Too often partisans of my persuasion get caught up in resistance to the assault on regulation by anti-regulatory, antitax zealots who see any restriction and accompanying taxation to fund enforcement as an attack on a sacred free market and the sacred liberty of sovereign individuals. Rules and regulations are ravaged willy-nilly or by rote formula, as with Trump's executive order requiring federal agencies to cut two existing regulations for every new one they implement. This is the stuff of sophomores. My side gets so caught up fending off wholesale demolition that we sometimes resist changes that arguably should be made.

George Will is on the mark when he points out that strong government depends at the end of the day on public confidence in government and we do not have a lot of that at the present moment. He remembers that in 1964 when he cast his first vote for president, for Barry Goldwater, 77 percent of the American people said they trusted government to do the right thing "just about always" or "most of the time." Today 21 percent of Republicans and Republican-leaning independents trust government, while for Democrats and Democrat-leaners it is 14 percent (Public Trust in Government: 1958–2019, Pew Research Center, April 11, 2019). It escapes Will's notice that this development owes something to the protracted, relentless, scorched-earth campaign to undermine public trust in government initiated in the late 1960s by putative think tanks funded by the Koch bros and fellow billionaire oligarchs and carried on by Newt Gingrich and other Republicans in the 1980s and afterward. From the Gingrich era on the Republican program has been not limited, effective government but rather the sabotage of government.

Will's libertarian conservatism holds that government is axiomatically, by its nature, incompetent and corrupt, while the free market axiomatically produces optimal outcomes. That view is, in Will's words, "very much informed by public choice theory, which reduced to its essence is that people in the private sector try to maximize their interest, often profit, [and] people in the public sector do exactly the same thing. They try to maximize their power."

The appeal to public choice theory calls for yet another of the digressions that habitually plague your oft humbled scribe. I will try to keep it relatively brief.

Public choice theory was the brainchild of radical libertarian economist James Buchanan and his colleague Gordon Tullock. Buchanan was chair of the economics department at the University of Virginia when Brown v. Board of Education came down in 1956. The decision miffed Buchanan mightily. Historian Nancy MacLean, my source for much of what follows, says there was no "explicit evidence that for a white southerner of his day, he was uniquely racist or insensitive to the concept of equal treatment." What chafed Buchanan was the requirement that he pay taxes to fund improvements in education mandated by the federal government. As MacLean puts it, "What about his rights? Where did the federal government get the authority to engineer society to its liking and send him and those like him the bill?"

Buchanan and the public choice economists who followed his lead make the assumption "that although people acting in the political marketplace have some concern for others, their main motive, whether they are voters, politicians, lobbyists, or bureaucrats, is self-interest," just as economists who study public behavior in the private sector assume that people primarily out of self-interest (Shaw, Public Choice Theory). Buchanan went on to hook up with the Koch bros et al. in an ongoing project to undo democratic governance, which in their eyes is always a tool for the corrupt self-interest of public officials and the tyranny of the majority, of which they as billionaires or, in Buchanan's case, oppressed Southerners looked down upon by liberal elites would never be part.

Majority decisions, in this view, are inherently coercive and a violation of the liberty of sovereign individuals unless they have unanimous consent. This may be strictly speaking, in an academic sense true. The problem is that unanimous consent never happens. The requirement would amount to the negation of the ability of humans to conduct public affairs of any sort, reducing life to a Hobbesian state of nature where the strongest and most ruthless prevail and life is nasty, brutish, and short.

Rather than attempt to protect minority rights from abuse, Buchanan advocated, and the Koch bunch worked to ensure, minority rule, the minority being their faction. They would change the rules to put in place legal and constitutional obstacles that would prevent public officials from responding

"to those who use their numbers to get the government to do their bidding.... The only way to ensure that the will of the majority could no longer influence representative government on core matters of political economy was through what he [Buchanan] called constitutional revolution." (MacLean).

That their minority might thereby trample the rights of those sovereign individuals who make up the majority is of no concern.

Will buys himself some wriggle-room from this extreme position by characterizing his doctrine as "sort of Living Originalism, in that it's the original intent [of the Constitution], which is broadly libertarian for our society, applied to today's circumstances." As an example, he holds that "the threshold question when evaluating any particular mode of construing the Constitution is whether the mode would dictate declaring public school segregation unconstitutional. No acceptable theory for construing the Constitution can invalidate the court’s conclusion in Brown; the conclusion invalidates any theory that rejects it."

No justification for this assertion is offered by Will in his discussion with Klein, and Klein fails to press him on it. Maybe it is covered in the book. Application of the doctrine to the Eighth Amendment's prohibition on cruel and unusual punishment provides a better example.

"If you simply take the original public meaning of the word cruelty, we would not be able to strike down a law today that allowed branding, cropping ears, flogging, pillorying, etc. But instead we say, 'Look what the founders intended, their original intent was to get rid of cruelty.' And we’ve changed our minds about cruelty, and that’s perfectly permissible. But the original intent was still there, that cruelty shall not be practiced in the United States."

This living originalism is an improvement over more dogmatic versions of originalist doctrine, but it does not help much when we get down to interpreting constitutional text and its implications in specific cases. I expect that strict originalists would object that Will's doctrine is not a kind of originalism at all but just a prettied-up version of the despised theory of the Constitution as a "living document."

Maybe not all Americans who identify as conservative buy into the radical Koch agenda or even Will's arguably less extreme "broadly libertarian" American conservatism, but a goodly number do, and they are prominent among Republicans who hold public office and among individuals of great wealth, power, and influence. They control the Senate and many governorships and state legislatures. They fund highly partisan think tanks and academic centers that push their agenda and give the ideology behind it a veneer of intellectual respectability. And they are quite willing to go along with the eccentricities and excesses of a rogue president as long as he pursues that agenda of tax cuts and radical deregulation. This is the alternative from the right.

to be continued

Part 1


David Matthews

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