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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Occupy Wall Street has continued to hold Liberty Plaza, and has inspired hundreds of other protests. It's usually interpreted as a leftish populist complement to the Tea Party, ala this diagram:
Some have praised OWS and the Tea Party for challenging ossified and corrupt institutions. Others dismiss the two groups as mere "primal screams," uninformed by a realistic sense of policy.
I'd like to step beyond the rival narratives of "what does OWS do for the left" and "how does OWS relate to the Tea Party." These are important questions, but I think they miss a deeper feature of the movement: its conservatism. Sure, Bill O'Reilly and Rush Limbaugh are portraying the protesters as druggies, socialists, and hippies. But millionaire media moguls do not define modern conservatism; principles do. Some of the most appealing ideals of modern conservatism have found a home in the OWS movement. Gregory Djerejian has put it well:
While I will readily confess I find it odd as something of a Burkean that I am sympathetic to these protesters, they are not looking to trot out the guillotines, in the main (although I did spot a "Behead the Fed" sign!), but rather, they have smelled the radicalism of the blows dealt the integrity of a representative democratic system poised by the almost unfettered oligarch-like behavior among too many elites wholly disconnected from, yes, the 99% they speak of. They are acting to secure conservative aims of re-balancing a society that is becoming dangerously unmoored and increasingly bent asunder.
In the rest of the post, I'll explain the conservative values behind OWS and the larger wave of economic discontent it reflects. 1) Belief in Free Enterprise
Bruce Judson says that "the kids camping on Wall Street are the capitalists, not the people in the buildings." Sure, you'll find a few signs for Socialist Workers at OWS, just as you'll find Ron Paul supporters. Between those extremes, there is a broadly centrist sentiment. Government shouldn't be bailing out megabanks. Corporations should play by the rules and avoid destroying the natural environment. We need to live within our means, both as households and as a nation. Everyone deserves a shot at success.
These may sound like uncontroversial bromides. But they lead to some strong conclusions about the worth of various enterprises. As Frida Ghitis writes,
You never hear anyone complain that Steve Jobs became a multi-billionaire. That tells us something important about what motivates the protests growing on Wall Street and in many other places on both sides of the Atlantic. The anger of demonstrators is not the result of envy or of politically-motivated hostility against the rich. Instead, it is the understandable expression of frustration with a system that has richly rewarded people who, quite simply, do not deserve it.
Incredibly, in 2008, despite hundreds of billions in taxpayers’ bailouts and trillions in losses for investors, that year also ended with huge bonuses for Wall Street. That year, Wall Street firms paid $18 billion in bonuses, according to the New York State Controller. . . . Some European countries have instituted huge tax rates for large bonuses. In Israel, the board of Bank Leumi has introduced “negative bonuses,” taking compensation away from underperforming managers. In the U.S. , there is no penalty for failure. No penalty for those who cause it, that is: Everyone else has to pay.
Nicole Gelinas of the conservative Manhattan Institute further explains the distinction:
[T]he protesters’ affection for Jobs isn’t necessarily a sign of bad faith or ignorance. Rather, it could be a healthy discernment . . . . The point is not that Jobs was “this different, quiet billionaire,” as one protester put it, but that he lived by the rules through which free-market capitalism should work. . . .
Contrast the capitalist world in which Jobs lived with “capitalism,” as the U.S. government has applied it to the big banks against which the Zuccotti Park crowd is—imperfectly—protesting. If you’re a bank or an insurance firm, and you create a product that your investors and your regulators can’t understand in a crisis, you aren’t punished, as Apple was when it released products too complex for its customers. Instead, you get rewarded with bailout money. It’s hard to argue with the Zuccotti protesters’ manifesto on this point: “They have taken bailouts from taxpayers with impunity.”
Unlike many of the OWS protesters, I don't find Jobs a very appealing figure. His contractors would rather silence than address the working conditions at their plans, and he aspired to bring those conditions to the U.S. Nevertheless, OWS points to a fundamental problem in today's economy: a finance class that has used connections and power, rather than hard work and productivity, to make a fortune. As Matt Taibbi explains, Wall Street gets favors the rest of us only dream of. It is crony capitalism at its worst, a mockery of the ideals that supposedly animate its defenders.
2) Belief in Law & Order
Our "if it bleeds, it leads" media is morbidly fascinated by violence at the protests, ranging from pepper spray to beatings to tear gassing. The law & order question is always framed episodically: did the occupation go too far, or did police engage in brutality? Few ask why OWS arose in the first place. Protesters object to seeing destructive activity not merely escape prosecution, or investigation, but leave its perpetrators fantastically wealthy (as I explained in point 3 of my last post). Bill Black's analysis of the belated FHFA suit demonstrates what many of us suspected all along. There are ample opportunities to investigate fraud in an episode that was 70 times as costly as the S&L crisis.
Glenn Greenwald puts it forcefully in his new book, With Liberty and Justice for Some:
It is now clearly understood that, rather than apply the law equally to all, Wall Street tycoons have engaged in egregious criminality—acts which destroyed the economic security of millions of people around the world—without experiencing the slightest legal repercussions. Giant financial institutions were caught red-handed engaging in massive, systematic fraud to foreclose on people’s homes and the reaction of the political class, led by the Obama administration, was to shield them from meaningful consequences.
OWS breaks the stale paradigm of state vs. market, and criticizes a troubling fusion of government and business, especially when it subverts normal legal processes.
3) Respect for the Military
Disgusted by repeated exploitation of soldiers, Pentagon officials asked the Senate to use financial reform to crack down on shady car dealers. Holly Petraeus, the wife of Gen. David Petraeus, has spearheaded efforts to protect military families from predatory banks. When an industry is so out of control that it begins to undermine national security, it's time for a coordinated response. Unfortunately, thousands of potential violations of the Servicemembers Civil Relief Act (involving banks which were "accused of overcharging on interest rates for active duty military members and attempting to foreclose on them while they served overseas") have provoked only a slap on the wrist settlement. (I wonder if any banker responsible for this policy has even been fired for it.)
On a darker note, during a violent dispersal of the Occupy Oakland protest, an Iraq War veteran (Scott Olsen) was critically injured. Sgt. Shamar Thomas, having earlier shamed overreactions to crowds, has called on fellow marines to join OWS and has joined a vigil for Olsen. Has the US learned nothing from the shameful treatment of the Bonus Army? As Frank Rich observes:
[In] June 1932, desperate bands of men traveled to Washington and set up camp within view of the Capitol. The first contingent journeyed all the way from Portland, Oregon, but others soon converged from all over—alone, in groups, with families—until their main Hooverville on the Anacostia River’s fetid mudflats swelled to a population as high as 20,000. The men, World War I veterans who could not find jobs, became known as the Bonus Army—for the modest government bonus they were owed for their service. . . .
The men were mostly middle-class, patriotic Americans. They kept their improvised hovels clean and maintained small gardens. Even so, good behavior by the Bonus Army did not prevent the U.S. Army’s hotheaded chief of staff, General Douglas MacArthur, from summoning an overwhelming force to evict it from Pennsylvania Avenue late that July. After assaulting the veterans and thousands of onlookers with tear gas, MacArthur’s troops crossed the bridge and burned down the encampment.
The first person I talked to at OWS was an army reservist, who discussed with me the plight of unemployed veterans. It's time for the nation as a whole--and especially the top 1%, who benefit disproportionately from the work of our soldiers---to guarantee these vets health care, jobs, and housing.
4) Religious Faith
During one march, clergymen carried a golden calf through Liberty Plaza in Manhattan. David Graeber, one of the chief theorists of "Occupy," frequently refers to Biblical attention to social justice. Vincent J. Miller, the Gudorf Chair in Catholic Theology and Culture at the University of Dayton, has stated that, "It’s clear the Vatican stands with the Occupy Wall Street protesters and others struggling to return ethics and good governance to a financial sector grown out of control after 30 years of deregulation.” E.J. Dionne does not go that far, but does observe the enduring resonances between Catholic Social Thought and the empowerment of the poor. As Pope Benedict stated in Caritas in Veritate:
Economy and finance, as instruments, can be used badly when those at the helm are motivated by purely selfish ends. . . . What should be avoided is a speculative use of financial resources that yields to the temptation of seeking only short-term profit, without regard for the long-term sustainability of the enterprise, its benefit to the real economy and attention to the advancement, in suitable and appropriate ways, of further economic initiatives in countries in need of development.
In my visits to OWS, I've been struck by the corporal works of mercy at them: feeding the hungry, clothing the cold, aspiring to some healing of a broken economy and an increasingly ravaged planet. I also spoke to some individuals who participated in a moving service, before Yom Kippur, on the Old Testament prophets' denunciation of vast and irresponsible wealth, teachings on "gleanings," and jubilees. If St. Francis of Assisi were around today, I have little doubt that he'd feel at home in such a place.
5) Suspicion of Big Government
Of course, not all conservatives are religious, or all that concerned about military prerogatives. There are plenty of agnostic or atheist libertarians at places like Cato. What does unite these conservatives is a deep-rooted suspicion of "big government." And that's a major theme of OWS as well. The various occupations raise difficult questions about how far law enforcement and surveillance can go to disrupt and demobilize dissent. The Supreme Court will be hearing a number of cases this term on similar issues, as Dahlia Lithwick relates:
[T]he court will face an array of questions about whether government is too crazy powerful: Can the cops stick a GPS device on your car without a warrant? Can the feds force Arizona out of the immigration-law game? Can the government force you to buy health insurance if you are hellbent on a slow and painful death? It will also face a host of questions about whether corporations can further immunize themselves against ordinary people: Can consumers sue credit repair companies for excessive fees? Can investors bring securities fraud suits for insider trading? Can oil and gas workers injured on the job sue to receive workers’ compensation?
And once we turn back to finance, it's ever clearer that the "Wall Street vs. Washington" narrative of the mass media is Kabuki theater. Realistically speaking, Bank of America is a state actor. Much the same can be said of its rival megabanks, and those who profit from sweetheart deals with them. OWS realizes that much of the top 1% is not simply the beneficiary of impersonal forces like technology and globalization. Rather, modern wealth is increasingly based on state support. The FIRE (finance, insurance, and real estate) industries could not last for a week in their current form without constant state succor. Nor could many others in the top 1% maintain their fortunes without extensive investments in the drafting and interpretation of key legislation. (For those who'd like to see a case study from a field outside finance, check out my post on the American Medical Association/Specialty Society Relative Value Scale Update Committee (RUC)).
Bernard Harcourt's excellent piece on the concept of "political disobedience" explains how OWS revitalizes the classic conservative suspicion of government:
Occupy Wall Street is best understood . . . as a new form of what could be called “political disobedience,” as opposed to civil disobedience, that fundamentally rejects the political and ideological landscape that we inherited from the Cold War.
Civil disobedience accepted the legitimacy of political institutions, but resisted the moral authority of resulting laws. Political disobedience, by contrast, resists the very way in which we are governed: it resists the structure of partisan politics, the demand for policy reforms, the call for party identification, and the very ideologies that dominated the post-War period. Occupy Wall Street . . . is politically disobedient precisely in refusing to articulate policy demands or to embrace old ideologies.
This "political disobedience" is a logical outgrowth of watchdogging activism on both left and right.
Must a conservative suspect all government, or merely the ossified and corrupt Washington of today? Perhaps the former view is a hallmark of actually existing conservatism. But to consign government programs like Medicare, Social Security, and the EPA to the scrapheap of history would itself be more the province of radicalism than conservatism. Thus one final sense of the conservatism of OWS is the protesters' insistence on the endurance of a social contract that emerged in the New Deal. If conservatism is to be more than a categorical rejection of collective action, it has to articulate something worth conserving. OWS, at its best, does that.
After Mike Konczal "created a script designed to read all of the pages and parse out the html text on the" We are the 99% tumblr, he analyzed the concerns expressed. He found:
[N]o demands for cheap gas, cheaper credit, giant houses, bigger electronics . . . under the cynical "Ownership Society" banner. The demands are broadly health care, education and not to feel exploited . . . and the desire to not live month-to-month on bills, food and rent and under less of the burden of debt at the practical level.
The people in the tumblr aren’t demanding to bring democracy into the workplace via large-scale unionization, much less shorter work days and more pay. . . . The 99% looks too beaten down to demand anything as grand as “fairness” in their distribution of the economy. There’s no calls for some sort of post-industrial personal fulfillment in their labor – very few even invoke the idea that a job should “mean something.”
To be sure, a wide range of people---from Ron Paul fans to anti-nuclear activists---have been joining OWS, and their concerns go way beyond the politicization of personal problems on We Are the 99%. But the broader OWS coalition unites around concerns about a rigged economic game. Whether your bete noire is Solyndra or Halliburton, you can sympathize with that.
Of course, another conservatism is possible: one that merely exalts today's "winners," however they acquired their wealth, and despises "losers." This is the vein of conservative thought Corey Robin traces in his book The Reactionary Mind. Robin quotes this von Mises letter to Ayn Rand to exemplify it: "You have the courage to tell the masses what no politician told them: you are inferior and all the improvements in your conditions which you simply take for granted you owe to the effort of men who are better than you."
Whenever I hear media commentators putting down the "dirty hippies" in Liberty Plaza, I think of that letter. I don't think it reflects modern conservatism; only a small and callous faction within it. As a truly great conservative, Adam Smith, once observed:
[D]isposition to admire, and almost to worship, the rich and the powerful, and to despise, or, at least, to neglect persons of poor and mean condition…is…the great and most universal cause of the corruption of our moral sentiments.
By fighting that corruption of the state and the soul, OWS promotes conservatism's enduring ideals.