Elizabeth Anderson needs a blog

Elizabeth Anderson’s post this morning at bleeding heart libertarians serves as a nice reminder of how naturally she takes to the genre. (Her posts were easily the best thing come out of David Velleman’s now defunct “left2right” group blog).  The occasion of the post is a symposium on John Tomasi’s new book, Free Market Fairness. I haven’t read the book, the BHL crowd has been pretty excited about it for a while.  Initial descriptions of the book have left me pretty skeptical, but I thought Tomasi’s first book was quite good, so I’m willing to give it a look at some point.

Assuming Anderson’s characterization is a fair one, though, my skepticism has increased today:

Tomasi reserves special opprobrium for labor regulations, as of maximum hours and minimum wages, and disparages workplace democracy.  Regulations of labor contracts, he claims, are forms of paternalistic domination.  They deny individuals’ rights to “personally negotiate” the terms and conditions of their employment, and deny their personal “independence” as self-authoring economic agents. He concedes that in the industrial age such regulations were warranted for vulnerable factory workers, but claims they are obsolete in today’s “personalized” capitalism, which offers work options tailor-made to each individual’s preferences.

It’s difficult to know where to start, but the obvious point, which Anderson makes well, is that this image of contemporary capitalism fails rather spectacularly to capture the employment experiences of most workers today.

But Anderson’t point about the way libertarians think about government is perhaps the most theoretically incisive part of the post:

Tomasi’s map of social possibilities confuses government with the state and the capitalist economy with the market.  A more illuminating map would identify government with any organization in which some people systematically issue authoritative commands, backed up by penalties, to others.  It would then distinguish liberal democratic from authoritarian governments, and public governments (states) from private governments such as firms.

Thinking about the state in terms of what makes it special and unique is an indispensable part of contemporary political theorizing, but so to is thinking about the state in more prosaic terms with a focus on what is not special/unique about it. Libertarians often attempt–incompletely and clumsily–to do just that when it comes to moral claims regarding the state, offering heightened scrutiny to the claim that is is morally permissible for the state to do X when no other actor could plausibly claim to do so. But they very rarely think about the state’s unspecialness in sociological terms, thus missing relevant similarities between, say, the state and the firm.

One of Tomasi’s arguments in the book is apparently that economic liberties ought to be constitutionalized:

Tomasi argues that rights to economic liberty should be constitutionalized, with economic regulations subject to a high level of judicial scrutiny.  Considerations of social justice may sometimes override economic freedom—but only if judges approve.

Anderson rightly observes “lack the expertise to assess economic regulations designed to stop such abuses.” I think there’s more to say here, though. I don’t know what, exactly, Tomasi’s hypothetical constitutional amendment(s) on economic liberty would look like, but I imagine, like most constitutionalized rights, they’d need to remain quite vague, thus leaving judges a great deal of latitude over their substance. Perhaps moreso than other kinds of rights, the conceptions of ‘economic liberty’ favored by the wealthy and those favored by the poor (and middle class more generally) are likely to look quite different indeed (even if they’re both potentially reconcilable with the vague constitutional language). Judges’ removal from any sort of popular/electoral pressure (not to mention their likely class identity) is creates conditions where they’re more likely to side with elite interpretations.

One common way to think about the question “Should this right be constitutionalized?” in a regime constitutional judicial review is to ask “Is this right fundamental and basic?”  and say if the answer is yes, then it should be. A better way, I think, is to ask “Is this the kind of right that’s likely to be better protected and advanced via constitutional judicial review based on what we’ve come to know about how constitutional courts generally function?” Even a well crafted statement of economic liberty not designed to tilt the scales toward the currently wealthy would fail the latter test, I’m afraid.