an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
How Different Are Conservatives and Liberals? Consult the Philosophers (Hint: it comes down to money and sex)
Conservatives are feeling pretty cocky these days. And for good reason (notwithstanding recent and pending indictments). Let's face it: two Bush terms, Republican control of House and Senate, tax cuts for the rich, Roberts and Alito (likely) on the Supreme Court for decades, and a mostly impotent political opposition.
A recent NY Times Op-Ed piece by John Miller of the National Review, "The Very Foundation of Conservatism," was a self-congratulatory review of the success of the conservative movement, underwritten by hundreds of millions of dollars directed by corporate funded foundations to support the work of conservative intellectuals. Miller's closing remark was (snide) advice to the oppostion: "If liberals now want to create a counter-counterintelligentsia, it's going to take more than money; what they truly need is a set of really good ideas."
Ouch. That was a kick below the belt, albeit mildly administered. Are liberals out of good ideas? The right is convinced of this. The old big idea of the left--Marxism--is buried for good. Another old left favorite, labor unions, are in critical condition (and rank and file union folks don't have much sympathy for leftist intellectual stuff anyway). The moderate left position staked out by Rawls has become passe, rejected almost as much by left critics as by conservatives. What remains (at least according to the right) is political correctness, identity politics, and a hodge podge of special interest or extremist pleading by groups, including affirmative action, abortion rights, soak the rich taxation, and social welfare programs.
To evaluate whether the left is indeed intellectually bankrupt, it is useful to consider what the big ideas on the right are. The list is obvious enough: free market, low taxation, strong defense, tough on crime, pro-religion, anti-abortion, anti-affirmative action, anti-welfare. The intellectual foundation for these positions (a number of which are negative positions, against the left, rather than for something) can be found in a series of posts about conservatism on Right Reason, a serious weblog for "philosophical conservatives." Here's an excerpt from an interview with conservative icon Roger Scruton:
Scruton: The free market is a necessary part of any stable community, and the arguments for maintaining it as the core of economic life were unanswerably set out by Ludwig von Mises. Hayek developed the arguments further, in order to offer a general defence of "spontaneous order", as the means to produce and maintain socially necessary knowledge. As Hayek points out, there are many varieties of spontaneous order that exemplify the epistemic virtues that he values: the common law is one of them, so too is ordinary morality.
The problem for conservatism is to reconcile the many and often conflicting demands that these various forms of life impose on us. The free-market ideologues take one instance of spontaneous order, and erect it into a prescription for all the others. They ask us to believe that the free exchange of commodities is the model for all social interaction. But many of our most important forms of life involve withdrawing what we value from the market: sexual morality is an obvious instance, city planning another. (America has failed abysmally in both those respects, of course.)
Looked at from the anthropological point of view religion can be seen as an elaborate (and spontaneous) way in which communities remove what is most precious to them (i.e. all that concerns the creation and reproduction of community) from the erosion of the market. A cultural conservative, such as I am, supports that enterprise. I would put the point in terms that echo Burke and Chesterton: the free market provides the optimal solution to the competition among the living for scarce resources; but when applied to the goods in which the dead and the unborn have an interest (sex, for instance) it wastes what must be saved.
MG: Shifting gears, an important theme in your book is that the notion of a social contract, "a recent and now seemingly irrepressible political idea," cannot ground political life as we experience it. Can you say a little about the contrasting idea of the "transcendent bonds" that you say give rise to our social obligations?
Scruton: My point was simply to emphasize that the most important obligations governing our lives as social and political beings -- including those to family, country and state -- are non-contractual and precede the capacity for rational choice. By referring to them as "transcendent" I meant to emphasize that they transcend any capacity to rationalise them in contractual or negotiable terms. They have an absolute and immovable character that we must acknowledge if we are to understand our social and political condition. The refusal of people on the left to make this acknowledgement stems from their inability to accept external authority in any form, and from their deep down belief that all power is usurpation, unless wielded by themselves.
A quick point: none of this is necessarily at odds with what most liberals think. Liberals love their families as much as conservatives, and support community values (beyond an empty platitude), and many liberals are loyal to their country (though not necessarily its leaders or its policies). Both a liberal and a conservative can be for the "free market" but against laissez faire. In the Road to Serfdom, Hayek objected to the harm caused by a "wooden insistence on laissez faire." He advocated that the government provide social goods that the market fails to produce; he was for regulation to keep the market honest; and he even urged that the government provide social insurance for the poor. Liberals would go further, of course, but on this minimum we agree.
Here is an account of conservatism by another leading conservative thinker, John Kekes:
A tradition is a set of customary beliefs, practices, and actions that has endured and continued to attract the allegiance of people who wish to perpetuate it. Traditions may be religious, horticultural, scientific, athletic, political, stylistic, moral, aesthetic, legal, military, and so on and on. They permeate human lives. When individuals form their conceptions of a good life, what they are to a very large extent doing is deciding which traditions they should participate in. The decisions may reflect thoughtful choices, thoughtless conformity to familiar patterns, or something in between. The bulk of the activities of individuals concerned with living in ways that strike them as good is composed of participation in the various traditions of their society. As they participate in them, they of course exercise their autonomy. But they do so in the context of various traditions which authoritatively provide them with both the relevant choices and the standards that within the tradition determine what choices are or are not reasonable. Their exercise of autonomy is the personal aspect of their conformity to the authority of their traditions which is the social aspect of what they are doing. They act autonomously by following the authoritative patterns of the traditions to which they feel allegiance....
Traditionalism rests on this understanding, and is a political response to it. The response is to foster participation in the various traditions that have historically endured in a particular society for the simple reason that good lives depend on participation in a variety of traditions. Traditions do not stand alone: they overlap, and the problems of one are often resolved in terms of another. Most traditions have legal, moral, political, aesthetic, stylistic, managerial, and multitude of other aspects. Furthermore, people participating in a tradition bring with them beliefs, values, and practices from other traditions in which they also participate. Changes in one tradition, therefore, are likely to produce changes in others; they are like waves that reverberate throughout the other traditions of a society. Since many of these changes are complex and have consequences that grow more unpredictable the more distant they are, conservatives are cautious about changes. They want them to be incremental and no greater than necessary for correcting some specific defect. They are opposed to experimental, general, or large changes because of their uncertain effects on good lives.
Traditions, of course, may be defective. Conservatives need a way of distinguishing between defective and non-defective traditions. A non-defective tradition has stood the test of time. It has endured for a long period, measured in decades, rather than months; people adhere to it voluntarily; and it forms part of their conception of a good life. It may happen that a tradition has endured because of coercion, that people have adhered to it because of indoctrination, or that the lives of which it formed a part were bad rather than good. Those who suspect a tradition of these defects must provide a reason for it, and defenders of the tradition must consider this reason. If the reason is good, the tradition should be changed. But if there is no reason to change, then there is reason not to change. That reason is that the tradition has stood the test of time. Conservatism, therefore, is not the mindless and indiscriminate defense of all traditions, but only of those that have passed this test.
Again, there is nothing here that a liberal would necessarily reject. Traditions give meaning to our lives, although some (like spousal abuse and racial prejudice) are harmful and should be resisted, just as Kekes said. Kekes even objected that the pro-life position is the right's version of political correctness. In the comments to Kekes' two posts on conservatism (both of which should be read) a fellow conservative suggested critically that his view smacked of Rawls (which passes for an insult in the conservative community), but otherwise there was general support for what he wrote. [A side point: there appears to be a consensus on this website that "libertarians" are not true conservatives, a point which seems to be ignored or lost upon many of today's libertarians in the Republican camp.]
My point is that on a basic level conservatives and liberals have much in common (though there is much room for disagreement on what and where to draw lines). We arguably remain mired in what Daniel Bell in 1960 labeled The End of Ideology. He pointed out that the left and the right more or less agreed on the fundamental political and economic arrangement. The complex interconnected world of mass society--our lack of control over the conditions of our existence--has erected structural constraints (political, economic, and cultural) that impose a collective helplessness on us all, allowing only marginal adjustments to be made, mostly in relation to social issues.
I don't know whether this is correct, but there appears to be something to it. This does not suggest that the fights between the left and the right are unimportant--millions of real people are affected by school funding, welfare, the availability of jobs, the availability of abortion, law enforcement techniques, etc. But it helps put the disputes into a broader perspective.
It also suggests, contra Miller, that money has been the major factor in the recent successes of conservatives (after all, the above ideas are more than two centuries old, so it's not like the fruits of their recent intellectual efforts have carried the day). The right has always had the money advantage. What Miller failed to detail is that reams of money has been funneled by conservative foundations to economists and researchers to produce slanted studies. In a sophisticated effort to manipulate public opinion, moreover, one tactic utilized by conservative institutes was to pay people to write and place Op-ed pieces in major newspapers (much as the Bush Administration paid people to write in support of its education policies, and like the Pentagon's recently planted stories in Iraqi newspapers), without disclosing the payments. The left is also guilty of some of this stuff, of course, but the left has a lot less money to throw around.
So conservatives do have a reason to be smug, but it's about the money (and the use of money to engage in more skillful manipulation of public opinion), not the ideas.
Finally, here's a real difference between liberals and conservatives on the cultural level, as stated by another thoughtful conservative philosopher, Christopher Tollefson:
Third, it seems to me, at any rate, that at least some conservatives are tempted to, or naturally gravitate to, a fairly grim aesethic. Some religious conservatives put me in mind of Kierkegaard’s Knight of Infinite Resignation, as if in being right and on the right they had sacrificed the capacity to take joy in life. Perhaps this is related to some points I made in the "But Am I a Conservative?" thread about Christians not having worked out completely the relation between this life and the next, between being human and being God’s adopted children. The unreflective dualism of many of my Christian students probably inclines them to libertinism when young, but perhaps to repression (and depression) when older. I am told by a Protestant friend, recently married, that Protestant couples planning marriage are told to enjoy the sex when they can, because women won’t want it any more after the babies start coming.
You limit yourseslf to the current American definition of Liberal or Conservative, both predicated on self-definition. I know that in our current era where self-awareness is assumed and people or similarly self-designated intellectuals are seen to be what they say they are this should be enough, but it isn't.
Among the educated, conservatism and liberalism are philosophically opposed mostly concerning those things that affect the lives of others. There is no consistent critique of individualism in either the 'moderate' American left or right. Steven Bainbridge is an economic liberal (read: modernist conservative) and a moral (social) conservative who makes no attempt to reconcile his contradictions. Pretending they don't exist does nothing. This is often noted in discussion of conservative thought, but the same applies to his opponents.
I made a reference in another post to Burke and Blake, meaning to their similar views of history. The proper response to purblind economic modernism is to see precisely how it - and philosohical exceptionalism- underlie both contemporary liberal and conservtive thought. You can build logic on a foundation of mud, but if you don't see the mud for what it is, your logic will crumble.
Liberals are smarter than moral conservatives, but their arogance and overconfidence dooms them to failure in the arena of popularity and politics. Charming liars -always philosophically if not morally! conservative- are more popular than clueless pedants.
As far a philosophy is concerned knowing thyself is still the best -the only- way to start, and that is to ask the question of how it is possible, to interrogate the very idea of the individual. That it is assumed otherwise these days is a symptom of an old and well documented form of academic decadence. Look it up.
I would say that the chief difference between conservatives and liberals is that the latter try to maximize the best case outcome, while the former try to minimize the worst case outcome. But, of course, it has to be remembered that there are few liberals OR conservatives actually occupying public office, or positions of power within major parties. Mostly those people are pragmatic rent seekers for whom liberalism or conservatism are brand identities, not principled positions.