Balkinization  

Tuesday, June 12, 2018

Further reflections on "the common good"

Sandy Levinson

As noted yesterday both Patrick Deneen's and Steven Brill's new books, about which I am very enthusiastic, both ultimately turn on the belief that there is an ascertainable "common good" or "public interest" that is being ignored by feckless politicians, for whatever reasons, including, of course, the sheer power of the donor class.  I am not unsympathetic with this critique.  One of the reasons I have become so critical of the Constitution is that, as Mark Graber has pointed out, it is structured so as to assure that no national elected office-holder, including the President, truly has an incentive to think about the "national good."  Every member of Congress is beholden to local constituents.  The only difference between the House and Senate on this score, putting to one side the seven states with more senators than representatives, is that senators represent larger constituencies, but their incentive is to do what they believe these parochial constituencies desire.  Thus Mitch McConnell as the faithful ambassador from a dying coal industry.  Indeed, if one wants to understand why it's going to be so hard to win the "war on coal," one should begin with the fact that most of the largest coal producing states are small (in population) and, therefore, coal plays an exaggerated role in the consciousness of the representatives and senators.  (These states include Montana, Wyoming, Kentucky, and West Virginia, which have a total population of approximately eight million people (out of approximately 325 million people in the entire US), but who have, among them, 8% of the in the egregious and indefensible U.S Senate and, unlike the senators from, say, Illinois, they are not encumbered by in-state groups that might not be so completely committed to maintaining the supremacy of coal.  (Texas, a high coal-producing state, somewhat to my surprise, is now the leading center of wind-energy in the US.)

Although some (especially presidents themselves) claim that the President is the "tribune of the national people," the even more egregious and indefensible electoral college assures that most often the President is the faithful servant of the particular coalition that put him (so far) into power.  Thus, whatever FDR's "real views" might have been on civil rights, the New Deal, as Ira Katznelson has demonstrated, was shameful with regard to protecting the rights of Southern African Americans because racist Democrats were an essential part of the then-Democratic coalition.  (They have, of course, migrated to the Republican Party as a result of the Voting Rights Act of 1965.)  Similarly, the most shameful appointments to the federal courts in the past sixty years, prior to Donald Trump, were JFK's, who felt it "necessary" to pander to Mississippi Sen. James Eastland and others to provide "safe" judges.  Ohio, as a battleground state, has been the recipient of special solicitude from, especially, George W. Bush and now Donald Trump, though I suspect it wouldn't be that hard to find some similar examples from Bill Clinton and Barack Obama.  The only one of the three basic branches that might be free from this critique is, of course, the judiciary.  As Graber has also argued, one cannot possibly understand Dred Scott without realizing that there was a national desire that the Court, as the one remaining "national institution," given the almost total breakdown of Congress as a genuine governing institution, intervene and try to save the Union. Taney didn't do it, but, if one can accept Story's similarly-motivated opinion in Prigg v. Pennsylvania, it's not self-evident that Taney deserves all of the opprobrium visited upon him unless one takes the Garrisonian position, which I'm sympathetic to, that there might have been a more important value than maintaining the Union.   One might also try to defend the "Administrative State" in similarly national terms.

But these are all "political science" points, as important as they are (and which, perhaps, deserved more recognition particularly from Brill).  Far more fundamental, and quite explicit in Deneen's book, is the extent to which what political theorists call "modern" political theory, i.e., post-Machiavellian, basically rejects the notion of an ascertainable "public good" or "public interest."  I have written elsewhere that the most important single paragraph in "modern" political theory is from Hobbes's Leviathan, where he ruthlessly condenses Aristotle's six forms of government--monarchy, tyranny, aristocracy, oligarchy, constitutional government, and demagoguery, into only three.  (Some lists, incidentally, describe the last two as either a "polity" or a "democracy."  The point is that the second "contrast" terms, "tyranny," "oligarchy," and "demagoguery" or "democracy" Hobbes dismisses as merely the names for forms of government "misliked."  That is, there is no real "fact of the matter"; it's simply a matter of (arbitrary) opinion, so that we should analyze only three forms of government, based the sheer number of rulers:  Monarchy (one); aristocracy (the few); and then democracy (the many).

Madison was perhaps fatally schizoid about such matters,  reflected in the Constitution that he helped so much to design.  Many of the Federalist papers clearly presuppose the existence of "virtuous" dispositions that will lead leaders to prefer the common good to merely selfish "factional" interests.  On the other hand, he also seems to indicate, especially in Federalist 10, that it is basically futile to believe that selfishness can be tamed, that we need instead to construct a "machine" that will, with adequate bells and whistles, create a way of balancing out the various factional interests and, implausibly, perhaps, result in a public interest.  That way lies what came to be called "interest group liberalism," which triumphs especially in the 20th century.

When I entered graduate school 56 years ago, it was taken as a simple truth that normative political theory was basically dead, that "everyone" knew it was simply naive to use terms like "public interest" except in reference to a vector sum of bargaining among distinctly factional political interest groups.  Richard J. Daley and New Haven Mayor Richard Lee were the heroes of what came to be called the "pluralist" view of politics.

John Rawls is widely credited with reviving normative political theory with A Theory of Justice in 1971, but key to Rawls is that his approach was based ultimately on a model of "rational choice," in which entirely self-seeking individuals would realize that it was ultimately in their own interest to adopt "a theory of justice" that would maximize certain notions of "fairness" (because, after all, one could never know, in the original position behind a veil of ignorance, what slot one would inhabit when the veil was lifted).  Genuine commitment to a "public good" was not really central to the Rawlsian vision.  Moreover, as Michael Sandel argued, Rawls's ontology, as is true generally of "rational choice" models, was of completely isolated individuals concerned only with maximizing their own welfare.  (In this sense, there was less difference between Rawls and his chief libertarian critic, Robert Nozick, than one might think.)  Sandel, instead, emphasized (like Deneen), the extent to which we come into the world "embedded" and "encumbered" by community loyalties, norms, etc. Not only are they not easy to escape, but one can read Sandel (and certainly Deneen), more controversially, as suggesting that they ought not be escaped.  I dare say that most readers of this blog are "cosmopolitans" of one form or another who have long since left their original birthplace and, perhaps, family and religious traditions behind, and are not particularly taken with the pull of remaining loyal to initial "encumbrances" that in no sense are "chosen" or the product of any kind of "autonomy."  (It is clear that no libertarian can possibly be sympathetic with Sandel, or Deneen.)

But even with the revival of normative political theory and the rich array of books that are now being written, it is scarcely the case that there is anything close to agreement on what constitutes the public good or, even more to the point, on the epistemological tools by which we might ascertain it.  This is what makes arguments like Deneen's and Brill's (and, for that matter, your own favorite politician--both Brill and I are big admirers of Bill Bradley, who would have been a superb President) so genuinely problematic.  It is always tempting, and often correct, to claim that assertions of the public good are mere "ideology," i.e., gussied-up defenses of what are "in fact" merely selfish interests.  The main business of lawyers, after all, is to manufacture arguments favoring their clients in the name of impersonal interpretations of statues or the Constitution.  (Who would be so bold as to describe yesterday's voting rights decision about Ohio as five conservative Republicans making it easier for their party to remain in power rather than the good faith interpretation of two federal statutes?  It would be like describing the Court as the "running dogs of the capitalist empire.")  Going back to Plato and the Gorgias, Socrates distinguished between sophistry and true knowledge.  At best, many (though not all) of us believe that "true knowledge" is available with regard to a certain realm of "facts."  (The Flint water supply was contaminated with lead is not a matter of opinion; I also agree with Brill that it, like many other failures in our infrastructure, can be traced to fanatical Republican opposition to spending public money in a redistributive manner designed to help what Brill calls those who are "unprotected" by class or meritocratic privilege. ) But is it a matter of "fact" that poor people are "entitled" to decent water, public transportation, education, etc., etc., etc.?

I'm skilled at delineating the structure of legal and political debates, but I'm scarcely confident that I in fact know what the "public good" requires.  I remain enough a child of that aspect of my graduate education to be skeptical (just as I'm even more skeptical of claims to true and certain knowledge of what "the Constitution" requires of us).  My first book was "Constitutional Faith," and I have written subsequently of how and why I lost any real faith in the Constitution.  What Brill and Deneen are relying on, though, is perhaps a more important kind of faith, i.e., that we can in fact come to agree on what the "public good" requires and then identify leaders and groups who are committed to bringing it about.  Without some kind of such faith, I don't know how a democracy can ultimately function (unless, that is, one accepts the now generally discredited assumptions of interest-group-liberalism).  But requisite belief can't simply be summoned out of thin air.

More depressing thoughts for a late spring day (provoked by these two very interesting books).

Comments:

The constitution does not actually specify the constituencies for US representatives. Yes, they must be elected by state, but that does not mean they must be elected by district.
 

Perhaps we might try to define the "public good" by considering what was not done but should have been done by the Trump Administration with respect to the hurricane Maria's devastation of Puerto Rico. Then we might look comparatively at the voluntary steps taken by a famous chef to feed American citizens impacted by Maria.
 

Utilitarians can't even tell you if "utility" is vector or scalar, and these are summed in radically different ways. "The common good" may be a useful metaphor, but that's all it is, and if you forget it's just a metaphor, it ceases to even be useful, and becomes instead an excuse to override other people's preferences.

The basic problem here is that if I start making tradeoffs between Alan's good, and Shag's good, I have to make assumptions about their preference ordering, and I don't really have that data, even assuming I knew how to sum it. I'll be tempted to attribute to them orderings that they don't actually hold, perhaps even in the teeth of their insisting I'm wrong. "False consciousness" on their parts, of course, they'd agree with me if they really knew what was in their own interests! What IS the matter with Kansas, anyway?

From a libertarian perspective, the best you can ask for is a society free enough that people can pursue their own interests, with the side constraint that they not attack others. But a society that free doesn't give would-be do gooders many levers to pull. They'll always see improvements they could make if other people didn't get to make their own choices.


 

All democratic political systems are designed to deal with a simple issue- that different people and different groups have radically different conceptions of what is good policy. So, without a set of reasonably consistent rules, might would make right, and whoever gained power would need to brutally repress dissent in order to stay there.

I am not as skeptical of the Constitution as Professor Levinson is. The framers were slaveholding idiots who didn't really give a crap about anything other than forming some sort of union and making sure their friends on the plantations could continue to rape their slaves for the foreseeable future. But they still created a reasonable enough structure. Far from perfect- the electoral college and the composition of the Senate are particularly dumb- but good enough for government work.

If you want to change it, though, you can't appeal to some set of common values. We don't have a set of common values in this country. Some of us like the welfare state, some of us hate it. Some of us strongly favor legal prohibitions of discrimination against blacks, gays, and women, and some of us don't. Some of us want the US to be an interventionist military power that maintains an empire and dominates the world, and some of us want the US to be peaceful and disengaged from foreign conflicts. Some of us see the US as an explicitly Christian nation whose institutions, as Justice Douglas said, presuppose a Supreme Being, while others of us see the US as a secular nation that observes a strict separation between church and state. Some of us think hate speech should be unprotected, others of us think it should be protected. Same with pornography. Some of us think abortion rights are fundamental to ensure the equality of women, and some of us think abortion is the unjust taking of human life.

And given the lack of agreement on values, there's not going to be any agreement on process either, because process is a proxy for outcomes.

So we are going to have to make do with what we have. A written Constitution, a Supreme Court with common law-like powers to propagate doctrine that either tightly or loosely interprets it, and, hopefully, respect for process on all sides. Conservatives aren't going to get their utopia, and neither are liberals.
 

First, with regard to Alan's comment: It's certainly true that the Constitution doesn't require single-member districts, and I would welcome a change to multi-member districts elected by proportional representation. But that in no way assures a "deparochialization" of the House, for the representatives would still have every incentive to feel beholden to their particular local constituencies. There are ways to combine the genuine advantages of geographically based representation with truly national parties; thus I think the best formal election systems in the world are Germany's and New Zealand's. But the principal point is that there is no serious discussion among the governing class (or the punditry) in the US about significant reform of the electoral process. The Maine voters may lead the way in getting rid of first-past-the-post, but that, of course, is because Maine, unlike the US Constitution, allows direct democracy.

Now for Dilan's points: He is certainly correct that we are a badly fragmented society. But I continue to think, even given the fragmentation, that we are stuck with a truly defective Constitution that it is hard to believe that any sane person would choose in 2018 to structure the politics of the nation we have become since 1787. But it should also be obvious that if one fully accepts Dilan's sensible arguments, then it is simply fruitless to talk about a "politics of the common good" or "public interest." Instead, politics is basically a Hobbesian struggle among conflicting groups, with power going to the strongest. I'm not a particularly big fan of David Brooks, but his column in, I think, yesterday's New York Times about the importance of trust is worth reading and pondering. How can we have trust in groups we believe are inimical to our own welfare or own favored set of values?
 

Sandy: I'm scarcely confident that I in fact know what the "public good" requires.

The only common good is the freedom to live our lives as we please so long as we do not harm others. This good can only be achieved by a government which limits it's exercise of power to preventing people from harming one another.

Governments may also provide pubic goods to all, which the people cannot provide for themselves.

Everything beyond this is either tyranny or theft.
 

Dilan:

A common good is one shared by all. We all indeed have different ideas of how life should be lived. The only way to accomodrate this diversity is to allow all to lives their lives as they please and form a government to keep them from harming one another. This is the only common good which can be shared by all.
 

Here's a metaphor for Brett: Libertarianism, selfishness uber selflessness. This is exemplified by SPAM. Imagine what Brett and SPAM's libertarian coloring books look like.
 

Shag: Libertarianism, selfishness uber selflessness.

If you are not harming others, what parts of your life should the current GOP government direct?

How much of your money and property should the current GOP government give me?

After all, you would not want to be selfish.
 

SPAM's "How much of your money and property should the current GOP government give me?" suggests he may be having problems with the Trump/GOP Food Stamps programs. It's not clear that SPAM has benefited from the Trump/GOP tax act, even on a trickle down basis. As to not harming, we can be thankful that SPAM in his rural mountaintop community can't harm too many there, especially as they may share SPAMY's BUND-y qualities.

 

Shag:

I thought not.

Progressives and other totalitarians want the government directing other people's lives and taking other people's money. If the persecuted protest, they are selfish or evil.

This is the anti-thesis of a common good.
 

Prof. Eric Segall (Dorf on Law/Twitter) has a book coming out entitled "Originalism as Faith" and it reminded me of Prof. Levinson's book. His first book was "Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges" (think he takes that too far).

This public good stuff reminds me of Pontius Pilate asking what "truth" is. Seems to me the bare power has never worked well and various things are in place to restrain that. Even these days, these limits, a form of "public good" are in place. The basic rule of law stuff comes to mind. There is also the long attempt to formulate a governmental system to reflect the public good. There is no magical answer there and Madison's Rube Goldberg efforts are flawed.

Various aspects of the constitutional system still overall seem sensible though a more representative democracy would seem better in various ways in the 21st Century. Ditto certain basic public goods, such as health care and the like. I realize that like the word "rights," we will have esoteric debates on terms there.
 

There are different ideas about the common good, but what's truly silly is to say that any one different from yours equals 'tyranny' or 'theft.' To the anarchist the libertarian's state could be said to be 'tyranny' and/or 'theft,' so when the libertarian turns around and says that modern industrial social democratic societies are 'tyranny' we just know that that person has no sense of distinction or degrees.
 

SPAM seems to be claiming that he is being persecuted as a libertarian. SPAM sure gets Rand-y at times in his rural utopia while shooting blanks.
 

"There is no magical answer there and Madison's Rube Goldberg efforts are flawed."

What Madison actually wanted got bastardized along the way by compromise (most notably the Senate). I think that we have to say of him what Chesterton said of Christianity: it's not that it failed, it's that it was never tried.
 

"A common good is one shared by all. We all indeed have different ideas of how life should be lived. The only way to accomodrate this diversity is to allow all to lives their lives as they please and form a government to keep them from harming one another. This is the only common good which can be shared by all."

This doesn't work as a governing principle, Bart. For a couple of reasons.

First of all, part of the disagreements that liberals and conservatives have is over what constitutes "harm". For instance, was the baker in Masterpiece Cakeshop "harmed" if he is required to bake the cake? Many conservatives would say yes, many liberals would say no. Was a gay couple harmed if they couldn't marry each other? Many conservatives would have said no (although perhaps this is shifting), because they could still marry people of the opposite sex. Most liberals, at this point, would say yes.

So even if your definition of the common good is limited to "harm", you still have liberals and conservatives fighting it out over which harms count.

Second, there are other things governments do besides prevent harm. You actually mentioned one upthread, public goods. And again, there are disputes over what constitutes a public good. Most people accept things like the fire department and highways as public goods. But what about something like Amtrak? Again, liberals and conservatives disagree.

And then there are other governmental functions that are debated. Leaving aside stuff you probably would define as tyranny, there are Cass Sunstein's "nudges". For instance, anti-smoking advertisements don't strike me as tyrannical. But they aren't a public good and are about self-harm much more than they are about harm to other people. Same with running a suicide prevention hotline. On the other hand, there is great debate over something like the war on drugs.

You can't shortcut this. People don't agree on the basic aims of government, or on what constitutes a good society. The genius of good democratic systems is that they allow sides to take turns, which (we hope) increases the possibility that each side recognizes the other as legitimate when it is in power.
 

"What Madison actually wanted got bastardized along the way by compromise (most notably the Senate). I think that we have to say of him what Chesterton said of Christianity: it's not that it failed, it's that it was never tried."

Communists say the same thing, you know. "My system has never been tried" is usually translation for "I'm a failure but I want credit for my pure idea and not what was actually possible".

First, what Madison actually wanted was just as stupid as what we got. By diffusing and separating powers, you create a government where each political party has an incentive to make sure things don't work when they are out of power, so that the other side gets blamed. That is fundamental, it is baked into the American form of government, and it is idiotic. Unless, that is, your goal is not to make sure we have a functioning government but rather to make sure that we create some sort of government while ensuring your friends in Virginia get to keep raping their slaves. Which, of course, was Madison's actual goal.

Second, Madison cannot be let off the hook for any compromises. He had every right to dissent from the Constitutional convention. Say they got it wrong and refuse to sign the thing. Campaign against it.

He didn't-- because, in the end, he wanted power and the route to power was to keep the slaveholders happy and sign on to the creation of the government no matter how far it might have departed from his pure vision.

The comparison with Chesterton's quote on Christianity is, in some sense, illuminating, though. Because the reason these debates come out the way they do has everything to do with worship. Just like a Christian wants to highlight the positive aspects of Christianity's history and minimize its role in slavery, tyrannical government, corruption, and the oppression of women and gays and religious minorities and heretics, a lot of Americans worship the framers and want them to be good people, so they refuse to believe that what actually happened (a really grubby compromise which was far from any vision of good government and which was full of checks and balances whose main purpose was to appease and protect slaveholders) happened. It's a religious belief, not history.
 

The sane and realistic people, be it religion or politics, realize the complications involved and do not rest on mere "belief," though the term has a certain character (including some sort of emotional weight that makes "justice" not just a passion-less mental exercise) that applies to some degree. Some here don't "worship" the framers or whatever (pick any given role model), but do respect them to some degree for what they did.
 

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BD: The only common good is the freedom to live our lives as we please so long as we do not harm others. This good can only be achieved by a government which limits it's exercise of power to preventing people from harming one another. Governments may also provide pubic goods to all, which the people cannot provide for themselves. Everything beyond this is either tyranny or theft.

Mr. W: There are different ideas about the common good, but what's truly silly is to say that any one different from yours equals 'tyranny' or 'theft.' To the anarchist the libertarian's state could be said to be 'tyranny' and/or 'theft,' so when the libertarian turns around and says that modern industrial social democratic societies are 'tyranny' we just know that that person has no sense of distinction or degrees.


A government which prevents people from harming one another and provides public goods to all is hardly an example of anarchy.

You are operating a business which harms no one. If I threatened you with armed force if you continued to stock a product of which I disapprove or failed to pay your employees what I desired, I have committed felony menacing and extortion. When the government does the same thing, why is this not tyranny?

If I took your money under the threat of armed force and gave it to my friend, I have committed felony robbery. When the government does the same thing, why is this not theft?

The only distinction is a government can legalize its malum in se crimes.
 

You totally misunderstood my comment which was that if you can charge a 'progressive' government with 'tyranny' and 'theft' an anarchist could charge you with the same (because even your minimal state will do more than they would think just and they wouldn't do it with bake sales).

The anarchist can say to you 'when you come to my business and take money from me to pay for your army and navy which I want no part of, then you have committed theft against me.'

Your answer will point to something you think is a public good which justifies this behavior (which would otherwise be 'theft') but of course the progressive does the same.
 

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BD: "A common good is one shared by all. We all indeed have different ideas of how life should be lived. The only way to accomodrate this diversity is to allow all to lives their lives as they please and form a government to keep them from harming one another. This is the only common good which can be shared by all."

Dilan: This doesn't work as a governing principle, Bart. For a couple of reasons. First of all, part of the disagreements that liberals and conservatives have is over what constitutes "harm".


In order to turn the harm rule into a viable governing principle, say a constitutional amendment, the principle needs to define the harms which government may prevent. For example:

A general police power limited to preventing a person from performing or threatening to perform an act causing substantial and demonstrable harm to the body, property or liberty of another shall be vested in the Congress.

For instance, was the baker in Masterpiece Cakeshop "harmed" if he is required to bake the cake? Many conservatives would say yes, many liberals would say no.

Your examples refer to various exercises of government power punishing an individual. I am discussing a general police power allowing goverment to prevent one person from harming another.

The cake maker did not harm the body, property or liberty of the homosexual couple by declining to make their requested cake. Thus, the government may not exercise its power to coerce the cake maker to do so.

Was a gay couple harmed if they couldn't marry each other?

The homosexual couple is harming no one by claiming to be married. Thus, the government may not punish the couple for doing so.

Government recognition and subsidy of marriage is not a public good available to all. Thus, the government should not be engaged in this act.

Second, there are other things governments do besides prevent harm. You actually mentioned one upthread, public goods. And again, there are disputes over what constitutes a public good. Most people accept things like the fire department and highways as public goods. But what about something like Amtrak? Again, liberals and conservatives disagree.

In order to turn the public good rule into a viable governing principle, say a constitutional amendment, the principle needs to define a public good. For example:

All benefits provided by Congress, the several States and their subdivisions shall be public goods for the general welfare of the citizenry and available to all citizens within their jurisdiction without regard to income, wealth, or act of the recipient...

Now, I admit that this rule in its purest form will not be enacted because nearly all of our people expect the government to care for those who cannot care for themselves, so I would add an exception:

...except benefits may be provided exclusively for the support of children, the elderly, and the mentally or physically disabled.

How I live my life and any harms I cause myself along the way are none of the government's business. When placed in these personal terms, I believe this is a principle upon which the vast majority of Americans can agree.
 

Mr. W: The anarchist can say to you 'when you come to my business and take money from me to pay for your army and navy which I want no part of, then you have committed theft against me.'

Once again, I am laying out the moral foundation for the classical liberal political economy and could give a rat's ass what an anarchist believes.

A public good is something for which everyone pays, whose benefits everyone enjoys and is not something which people can reasonably provide for themselves.
 

Joe:

The worship comes in making excuses for bad conduct.

Look, it isn't all bad. The First Amendment, for instance, is Madison's and is marvelous. Indeed, I bet everyone here agrees about that.

But the main project of the Constitution was to create a governing structure that preserves slavery. And likw any original sin, all sorts of bad flows from that. Hence the desire to pretend they had more noble motives.
 

'I am laying out the moral foundation for the classical liberal political economy and could give a rat's ass what an anarchist believes."

Of course most people, myself included, could give a rat's ass what a libertarian believes. My point though was still missed, it seems.

"A public good is something for which everyone pays, whose benefits everyone enjoys and is not something which people can reasonably provide for themselves."

This is exactly what the supporters of, say, the ACA or most any progressive legislation thought they were doing by enacting it. It would solve collective action problems in the insurance market (the third part of your definition), provide a better insurance system that would benefit all society (the second part) and be paid for via taxation (the first).

Now, you may argue as an empirical matter it doesn't really achieve this or that, (I'm no fan of the ACA myself so I might join in) but there's no doubt that what it's supporters thought they were doing is exactly what you just said is the proper role for government.
 

An account of the common good can't be put forward abstracted from history and isolated from debates regarding substantive justice in the manner of Rawlsian political theory. It's also can't be given determinate content in advance of deliberation in light of appropriate history and with due regard to substantive justice. But that takes painstaking work which entails a raft dispositions, habits, practices, and institutions intended to carryout that kind of work. Rawlsian political theory, guided by the mistaken belief that debates over substantive justice and the good will only lead to interminable conflict, removes substantive concerns from the debate. Most folks educated in that tradition, i.e., most people who attended elite colleges from the 70s onward, take this for granted in theory. But as Joseph William Singer elucidates in his unjustly neglected article "Normative Methods For Lawyers," in practice, lawyers and judges argue over substantive justice and goods often. The result is messy and not as intellectually satisfying as ideal theory. The common good, then, can be said to be the goal of political life, but it's continually being reconceptualized as we renegotiate our norms and values. In this, it's no different than most of the norms, values, and ideals worth caring about.
 

"But the main project of the Constitution was to create a governing structure that preserves slavery."

This level of myopism might require vision correction.
 

BD: A public good is something for which everyone pays, whose benefits everyone enjoys and is not something which people can reasonably provide for themselves."

Mr. W: This is exactly what the supporters of, say, the ACA or most any progressive legislation thought they were doing by enacting it.


In their rare honest moments, Obamacare proponents admitted their program was a massive transfer of wealth program.

https://www.washingtonexaminer.com/obamacare-was-mainly-aimed-at-redistributing-wealth/article/15448
 

Joe:

NO Constitution would pass that did not protect slavery.

Whereas tons of different givernmental structures were on the table.

By that definition, slavery was the central purpose of the Constitution. ait was an absolute dealbreaker and nothing else was. And the only reason you can't accept it is you cannot bring yourself to confront the evil origins of the flag you pledge allegiance to.
 

One would expect you to follow Byron York and make a silly generalization fallacy based on cherry picked quotes from 3 of the hundreds (if not thousands) of people that had a hand in putting together and passing the ACA (I like how York then admits a fourth person he asked denied his claim, but he just mindread that the denial wasn't real), but even were your claim warranted it wouldn't help you one bit because many people think income inequality itself is a collective action problem deleterious to the common good, amelioration of which benefits everyone.
 

I also love York's 'reasoning,' the same guy who often cries that liberals are quick to engage in 'class warfare' concludes that selling the ACA as redistributing income to the middle and lower class is something its proponents would only do as a Kinseyian mistake.

It's much more likely they hoped it would operate exactly like your definition of a public good but felt that they *had* to sell it as a boon to the middle and lower class!
 

Mr. W:

Go Google "Affordable Care Act redistribution of wealth" Obamacare's redistribution of wealth was widely discussed, although the Democrats actively avoided using the term.

Anyone with an IQ above room temperature knows progressive or targeted taxes paying for an array of means tested or targeted subsidies is per se redistribution of wealth.
 

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1. "In their rare honest moments, Obamacare proponents admitted their program was a massive transfer of wealth program."

"Obamacare's redistribution of wealth was widely discussed"

Rare(ly) or widely discussed, make up your mind! This is how a partisan thinks, they are so busy flinging the poo it escapes them that the thing they just said contradicts the thing they said before it (both wish such earnestness too!).

2. When you get to the point of 'they all said X, though of course they didn't use the term x' it's just an exercise in people seeing what they want in other people's words.

3. Even if the ACA has *an* effect of redistribution, it doesn't mean it was the *only* or *primary* or, more importantly for this discussion, *primarily intended* effect. That could have been the one I supplied (and which the York article you yourself referred to says was the proponents main message).

4. Again, even were all the above wrong, a reasonable person could think redistribution itself could meet your definition.
 

I don't think the argument 'the only dealbreaker was slavery so therefore the Constitution's central purpose was slavery' works.

In the most recent CBA NFL Commissioner Goodell had as a dealbreaker that he be able to discipline players who were hurting the public image of the NFL. That was non-negotiable it was reported. But that hardly means the central purpose of the CBA was to discipline players who were hurting the public image of the NFL, it was about coming to a labor agreement to operate a football league.

That doesn't mean we should ever forget or dismiss the stain of slavery that is so evident on our founding document. It just means that it wasn't the central purpose of it.
 

Mr. W:

Obamacare proponents lied comprehensively about nearly every aspect of Obamacare. So, yes, proponents discussion of Obamacare's redistribution of wealth can be both one of their "rare honest moments" and" widely discussed."

You originally claimed Obamacare designers intended their creature to fit my definition of a public good: "something for which everyone pays, whose benefits everyone enjoys and is not something which people can reasonably provide for themselves." Obviously, this in untrue, so you are changing the subject.
 

The proponents of the ACA cannot both have 'rarely' and 'widely' discussed the intent of it as the redistribution of wealth as the two terms are *antonyms.*

And I am not changing the point, simply talking about the many levels at which your argument fails. In addition to the above, your 'evidence' hardly proves that redistribution was *the* or even *the primary* intended result of the proponents of the bill, instead it could have been what I (and your own source York) said it was. And again, even if all the preceding were incorrect, redistribution itself could fit your definition.
 

Mr. W:

Propnents can lie about Obamacare mandates, taxes, your plans, your taxes, your savings, Medicare rationing, Medicaid expansion, and subsidies for illegal aliens, then sort of tell the truth about redistribution, and be fairly characterized as rarely telling the truth about Obamacare.

As for how widely the massive Obamacare redistribution of wealth was discussed, google is your friend.
 

"I don't think the argument 'the only dealbreaker was slavery so therefore the Constitution's central purpose was slavery' works."

It's a juvenile argument. Three things can be, and in fact are, true:

1. Protecting slavery was a critical goal for many of the Framers.

2. Most of the clauses in the Constitution can stand on their own merits or fall on their own flaws, independent of the motivations of individual Framers. Just to pick an easy example, setting the minimum age for the President at 35 has nothing to do with slavery. It's a judgment call that anyone could make. The same is true for many other features such as separation of powers.

3. The slavery provisions had trade-offs. For example, Congressional power to regulate commerce was something negotiated in exchange for the slavery provisions. It would be silly to dismiss those clauses because of the slavery provisions.
 

If the Constitution were exclusively to protect slavery, how to explain the clause permitting Congress to ban the further importation of slaves after 1808? This claim is just part of the left’s effort to delegitimize the Constitution because it stands in the left’s way.
 

Joe and I are right-wingers now? Man, Brett's political parallax displacement is verging on light years.
 

The ban on slavery was about protecting the interests of the great Virginia planters who bred slaves for export to other states,
 

Correction, the ban on importing slaves.
 

Importation of slaves was deemed necessary for a limited number of slave states because others if anything had more than they needed and benefited from the intrastate slave trade.

But, that isn't the only reason for the ban. It was seen as a particularly distasteful aspect of slavery. The distaste probably would have been pushed aside if it was deemed essential to protect the enterprise, but it wasn't even in the lower South. And, the ban was weakly enforced at any rate though some effort, including criminals laws, were in place.
 

"Joe and I are right-wingers now? Man, Brett's political parallax displacement is verging on light years."

And, by Dilan's lights, we are slavery apologists. Like Walt Whitman, I contain multitudes, getting criticism from all sides.
 

The redistributive effects of the ACA cannot have been both 'widely' and 'rarely' discussed *by its proponents.* If you're saying that people other than its proponents charged it, as a criticism, with that, then that's irrelevant to my point, which was that *to the proponents of the ACA what they could have been seeking was something that would fit your definition of a proper government aim.* That being the case, all you have is York's sloppy generalization fallacy to argue otherwise.

In addition to the above, your 'evidence' hardly proves that redistribution was *the* or even *the primary* intended result of the proponents of the bill, instead it could have been what I (and your own source York) said it was. And again, even if all the preceding were incorrect, redistribution itself could fit your definition.

 

The slave owners benefitted from not only the "intrastate slave trade" but also from the interstate slave trade and looking forward to expansion into the territories as well. As Alan noted, breeding was a significant factor. As to the distasteful aspect of slavery, consider how long it took for the abolition movement to gear up after 1808 and then consider the reaction of the slave states with the 1850 compromises, including the the new Fugitive Slave Act.
 

A minimal and partial definition of the public good is Pareto optimality: the set of states of society in which an improvement in the welfare of any one person involves a reduction in the welfare of another. Pareto was not exactly a good guy, and his concept has, not accidentally, served to shunt the problem of distribution and inequality to the sidelines. Notoriously, you get a different Pareto-optimal market equilibrium for each different initial allocation of resources.

But the approach still has value. Pareto suboptimal states of society allow improvements in which nobody loses. We can therefore identify some proposed policies as Paretian (in technical language, sensible) and others as failing to achieve attainable Paretian improvements (in technical language, stupid). Trump's trade and energy policies are clearly stupid in this defined sense.
 

James:

Pareto optimality is an economy where resources cannot be allocated in a more efficient manner and one party's situation cannot be improved without making another party's situation worse.

This theoretical optimal state can only be achieved in a free market where all transactions of resources are voluntary and all parties to a transaction believe they have improved their position.

A government cannot achieve this optimal state because it takes resources by force and distributes them at best through supermajority rule in a form which only part of the population will consume.

The best the government can do is to limit public goods to those a free market cannot reasonably produce, ensure that as many people as possible pays for the goods and make the good is available for as many people as possible to consume.

As Parento correctly observed, theft from one person to give to another is the opposite of economic optimality.
 

"Mr. W: The redistributive effects of the ACA cannot have been both 'widely' and 'rarely' discussed *by its proponents.*

Agreed.

I never stated the former. I said proponents comprehensively lied about Obamacare, not the subcategory of how Obamacare redistributes wealth.
 

Libertarians' concept of "liberty" permits them to find a way that their "liberty" is infringed on just about anything that is proposed as a public good. SPAM as a Zero Sum Game libertarian portrays this with his personal concept of "theft."

By the Bybee [expletives deleted, despite Gina], has there been a "free market" since The Gilded Age of the late 19th century?
 

Shag:

Theft is a malum in se wrong regardless of whether the law prohibits the act.

Theft is defined as taking the property of one and converting it to the use of another.

If the government takes your savings and gives it to me, how is this not theft?
 

"But the approach still has value. Pareto suboptimal states of society allow improvements in which nobody loses."

But is usually used to justify situations in which somebody absolutely loses, but that's alright because the winner might hypothetically compensate them from their winnings. But doesn't actually do so, so they just lose, period.

That's the problem with using Parento optimality as an excuse for coercive actions. With voluntary transactions, both sides end up winning because the compensation has to actually take place, or the transaction doesn't happen. With coercion permitted, the person with access to it can force the transaction through without compensating the involuntary participant.
 

So, for our dynamic dyslexic libertarian dup of Bert and Brat, if just one person out of 330 million is a "loser," then it's not a public good?

SPAM's concept of "theft" in his 9:24 AM comment:

"If the government takes your savings and gives it to me, how is this not theft?"

makes the government guilty of theft or SPAM as a government recipient, or both? If the government singles me out and takes my savings, that would be malum in se. But the government "takes" by way of taxes from many and some individuals with special needs may benefit with government social programs funded with those taxes. May we assume that SPAM is of the view that theft is involved in the preceding sentence?
 

Mista:

Even by your terms, slavwry was still the central purpose. Not only was it a dsalbreaker, but the framers went to great lengths to discuss and negotiate the several specific provisions protecting it. That's not true in your NFL example.

Additionally, I would argue the framers' refusal to actually say "slavery" proves this as well. One of the great indicators the Nazis knew the Holocaust was wrong was that they went to great lengths to never admit what they wers doing.

The same is true with the Slavery Holocaust perpetrated by our Nazis.
 

Mark:

I don't think murderers and rapists saying "OK we will impose some slight limits on our depravity while absolutely demanding we can still do it" constitutes compromise.
 

More generally, remember my point is about civil religion. Why do guys like Mark CONSTANTLY tell us how great the people who perpetrated one of the most evil Holocausts were? Why can't they just say "Madison was evil, but we can rescue the handful of good ideas he had in the same way that we can drive the Autobahn in a VW". Why do we excuse people who murdered and raped millions?
 

(And by the way, the answer to my last question is racism. White people who worship the framers simply do not care what the founding of this country actually meant for blacks in the slave cabins. Not admitting they admire a country founded to protect evil is simply a more important value than what blacks went through.)
 


""Mr. W: The redistributive effects of the ACA cannot have been both 'widely' and 'rarely' discussed *by its proponents.*

Agreed.

I never stated the former."

You said exactly: "proponents discussion of Obamacare's redistribution of wealth can be both one of their "rare honest moments" and" widely discussed."

Look, what you've backed yourself into is this, I described how the ACA proponents could be said, in backing that measure, to have fit your definition of proper government action. You cited an article by York to make the argument that they did not intend to solve a collective action problem where everyone pays to benefit everyone, but instead they wanted redistribution. But, as mentioned, the York article only cites three quotes from three of the thousands of officials and staff that proposed that bill, so at best you've got a massive generalization fallacy on your hands (even York admits that the Democrats usually extolled the bill on the grounds I described!), compounded with the fact that even if that were *a* intention it's not proven that it's *the* or *a primary* one. Therefore my point stands, the proponents of the ACA could easily be said to have been thinking they were doing something that would fit exactly under your definition of proper government action. Your rule just wouldn't work to stop the kind of 'legislation' you want it to prevent.
 

"If the government takes your savings and gives it to me, how is this not theft?"

It's theft (or not) in the same way that if the government takes my savings (in the form of taxing the interest on it) and gives it to you as soldiers pay for serving in Iraq.

Your line is a silly one that could be used just as easily on the 'classical liberal' as the progressive.
 

As to Pareto optimality, one thing governments might can do to help with this is to address things like asymmetry of information (regulations forcing disclosures from sellers, manufacturers, etc.).
 

Dilan, the Founders could (and should) have been ashamed to, in a document purportedly setting up a nation devoted to liberal including several provisions which dealt with the preservation of chattel slavery, and yet that wouldn't be the 'central purpose' of the document. To keep with my analogy, Goodell working to get language to mask the fact that the provision in question essentially left discipline matters up to his mere whim doesn't make the entire CBA about that. Nor would the fact that the NFLPA negotiated very hard on the final language, while ultimately granting the power, make it the 'central purpose' of the CBA.

I mean, come on. Just as a numerical matter the slavery provisions are dwarfed by all the other topics, it was a sub-purpose of the overall purpose of setting up a more centralized confederation of states, just as the discipline provision of the CBA was a sub-purpose of the CBA. Doesn't mean that the inclusion of both weren't shameful (the slavery one of course light years moreso!).
 

Mr. W:

The government taking money from Shag and giving it to me us not analogous to, say, a flat tax on everyone’s income paying for national security of all.
 

SPAM IN HIS 11:02 AM response to Mr. W presents a straw man argument with a flat tax on all for national security of all. Note that SPAM avoid my 10:35 AM question on SPAM's quote that Mr. W commented on.
 

"The government taking money from Shag and giving it to me us not analogous to, say, a flat tax on everyone’s income paying for national security of all."

You're just trying to wiggle out by changing the level of generality. You can say you take my money by force 'for national security for all' but what really happens at a lower level of generality is you take my money by force and put it into a payment for defense contractor Brett and into soldier Bart's paycheck (and all to fight a way I opposed and concluded would effect me in no way, save having my money taken from me to fight it!).

But likewise Shag could say that the money taken from you is not taken to 'give to him' but to 'provide social insurance that all can benefit from if the need arises.'

Perhaps you can see the answer to the silly line about 'theft.' It's not theft if its taken for a proper governmental function decided upon in a more or less fair and democratic way, and that's true for the things you want the government to do and Shag wants the government to do, it's just you differ on what's a proper governmental function (taking us back to square one). But the answer to anyone hearing that line from you is simple: it's not theft because it's for something I think is an allowable government function, and *you* think the same.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

Shag: If the government singles me out and takes my savings, that would be malum in se.

We are making progress.

But the government "takes" by way of taxes from many and some individuals with special needs may benefit with government social programs funded with those taxes. May we assume that SPAM is of the view that theft is involved in the preceding sentence?

I discussed this in detail above with Dilan and Mr. W. To recap...

Theft is taking the property of one and converting it to the use of another.

Our current hybrid of progressive taxation placing 70% of the burden on 20% of the people and means tested welfare benefits limiting benefits to about half of the people is by definition theft.

A public good is something for which everyone pays, whose benefits everyone enjoys and is not something which people can reasonably provide for themselves.

Consumption taxes which everyone pays funding a public road available for everyone's use is a good example of a public good.

In between these two lie programs like Social Security disability, where a broad based flat income tax which the recipients do not pay nominally goes to support the truly disabled who cannot support themselves.

Government caring for those unable by age or disability to care for themselves is the exception I and nearly everyone else would make to the general public good rule.
 

"Theft is taking the property of one and converting it to the use of another."

And when you take my money via taxes and put it in soldier Bart's paycheck then that is theft. Does it not go into your paycheck?

"taxation placing 70% of the burden on 20% of the people and means tested welfare benefits limiting benefits to about half of the people is by definition theft."

The distribution of who it's taken from shouldn't matter according to your reasoning. If in a town of ten I take from the one rich guy in town to pay the policeman or if I take from all ten people in town to do the same it's still 'taking the property of one and converting it to the use of another.'

"Government caring for those unable by age or disability to care for themselves is the exception I and nearly everyone else would make to the general public good rule."

BS, the vast amount of federal non-defense spending *already* falls into this category.
 

"Consumption taxes which everyone pays funding a public road available for everyone's use is a good example of a public good."

Ah, there's the rub. We can say, anyone who does have a car can ride on the highway, but the person without a car is still taxed.

Likewise, with welfare, or any social insurance program, we can say anyone who falls into poverty can use the program and therefore it is 'available for everyone's use' in the same way the road is!
 

Mr. W:

There is no perfect public good. As I noted above to James: The best the government can do is to limit public goods to those a free market cannot reasonably produce, ensure that as many people as possible pays for the goods and make the good is available for as many people as possible to consume.

However, under its own terms, my public road hypo is very close. Your hypothetical person without a car benefits from the people and goods transported along that road.
 

My social insurance program does even better by your criteria, for while there are many possible indirect benefits to all to point to as you do for the road, it provides the direct benefit of freeing everyone from worry should they fall into the circumstances that make the benefits necessary.
 

Mr. W:

Stealing from the economically productive to pay others to remain under and unemployed does not "free everyone from worry should they fall into the circumstances that make the benefits necessary." Instead, this immoral system pays people to remain in those circumstances and punishes them with taxes and lost benefits if they seek to escape.
 

"Stealing from the economically productive to pay others to remain under and unemployed"

It's not stealing any more than taking my money to put in soldier Bart's pocket is stealing, as we've discussed. And it doesn't 'pay others to remain under and unemployed,' rather it gives relief to those who for various reasons cannot make enough money to take care of themselves and to everyone who, but for the grace of God, could find themselves in a similar position.
 

Mr. W: And it doesn't 'pay others to remain under and unemployed,'

When the system pays you when you are under/unemployed and imposes more in costs (lost payments and increased taxes) than you gain in earnings by becoming fully employed, it is paying you to remain under/unemployed.
 

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