The stories we tell ourselves are important to who we are. Moreover, the identities we come to have are in large measure shaped by our social ties. We can agree with Michael Sandel that “we cannot regard ourselves as independent … without great cost to those loyalties and convictions whose moral force consists partly in the fact that living by them is inseparable from understanding ourselves as the particular persons we are—as members of this family or community or nation or people, as bearers of this history, as sons and daughters of that revolution, as citizens of this republic” (Liberalism and the Limits of Justice, 1982/1999). For all that, how we conceive of our social milieus is just as important as what they are, because these conceptions are partly constitutive to what they are. If we tell the wrong story about ourselves, we cannot find the proper means to diagnose the problems we share or to come to rectify those problems. It seems to me that Michael Sandel’s attempt to come to an understanding of some of America’s modern malaises in Democracy’s Discontent (1996) relies in some part on telling the wrong story of America’s competing visions and the way these visions evolved.
I will take some of these points in turn and will acknowledge that some of the points might be controversial. In any case, they are my own views.
1. Sandel’s Conception of Classical Liberalism
According to Sandel, our contemporary received understanding of Classical Liberalism has as its central idea “that government should be neutral toward the moral and religious views its citizens espouse,” asserting “the priority of fair procedures over particular ends,” where “freedom consists in our capacity to choose our ends.” Sandel writes that this strain of thought runs all the way through Immanuel Kant to John Stuart Mill and John Rawls. It’s true that Classical Liberalism both shapes and was shaped by these thinkers but I think Sandel presents a misleading picture of Classical Liberalism.
Classical Liberalism as it was expressed by Kant and Mill, and for that matter John Locke and Wilhelm von Humboldt (to name other notables), averred that no person or institution ought to occupy a position of authority over others unless that authority could be justified. In other words, Classical Liberalism is a commitment to a principle concerned with the illegitimate use of political power in the broadest sense, suspicious even of power in personal affairs. This is why Locke, one of the early expounders of Classical Liberalism, could write in his Second Treatise of Civil Government (1689) of parental power that “power so little belongs to the father by any peculiar right of nature, but only as he is guardian of his children, that when he quits the care of them, he loses power over them, which goes along with their nourishment and education, to which it is inseparably annexed; and it belongs as much to the foster-father of an exposed child, as to the natural father of another” (VI, 65).
The conception I have given above of Classical Liberalism clarifies, I think, some of its seemingly paradoxical aspects when we have to give it expression. Locke, for example, could accept that parents can be authorities over their children to the extent that children need guidance in their formative years. So too members of Congress in the United States could vote to adopt a more progressive tax system on the charge that progressive taxation constitutes a legitimate use of political power and far from infringing upon people’s freedoms can expand them and in turn improve the quality of life for most of the citizens. While the endpoint of the Classical Liberal vision would be to remove as many institutions representing political power as humanly possible, the short-term goals might be to expand them as a means to improve the wellbeing of its citizens. There is nothing really contradictory in the two positions since it is believed that the expansion of some political power to improve wellbeing and protect and enshrine human goods is a legitimate use of that power.
2. Sandel’s Interpretation of Constitutional Law
A great portion of the first half of Sandel’s Democracy’s Discontent explores the way in which he views the change in interpretation of constitutional law over time. On Sandel’s conception, there are two rival conceptions: liberalism and republicanism. As stated earlier, liberalism for Sandel is neutrality toward conceptions of the good life. Republicanism, on the other hand, “means deliberating with fellow citizens about the common good and helping to shape the destiny of the political community.” If you accept my conception of Classical Liberalism above and not Sandel’s, there is no conflict. Classical Liberalism is not about neutrality toward conceptions of the good life but suspicion of political authority, with the additional belief that anyone claiming authority must provide a justification that they are fit to rule. It is perfectly consistent with this view that citizens of a country, say, believe in the principle and also take part and deliberate about the proper use of existing power toward legitimate ends, including the common good.
This restated quibble of mine is important because whenever Sandel writes of constitutional law, he writes as though the debate about interpreting constitutional law (and perhaps law in general) has to do with the competing visions of liberalism and republicanism in American society. Just to give one sort of example Sandel is interested in, he writes of a 1984 judicial ruling about a city-sponsored nativity scene around Christmas time. The question to the court was whether the city’s sponsorship of the display constituted the endorsement of a particular religion. The court ruled it did not on the grounds that the religious connections were “indirect, remote and incidental” and the display was fine because it amounted to serving “legitimate secular purposes,” that is, of celebrating the Christmas holiday. Dissenters to the Court’s decisions argued that the nativity scene was directly tied to America’s Christian communities and that the Court’s decision in effect relegated the nativity scene “to the role of a neutral harbinger of the holiday season, useful for commercial purposes, but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an integral part… Surely, this is a misuse of a sacred symbol.”
Curiously, with this case and several others in his book, Sandel does not cite what the law actually says or the law being appealed to. I will not get into the details about this case or others but again the reason, it seems to me, that Sandel does not appeal to what the law says is that he conceives of this and like cases as representing a battle between liberalism and republicanism, between those favoring neutrality toward public goods (who do not wish to take a stand) and those who would uphold some goods and argue for them. Again, I think this is a false picture.
What the interpretation of constitutional law, and the interpretation of law in general, is about is whether judges should take conservative or activist stances toward the law itself in making their decisions. To give more flesh to what I mean here, consider two heroes of each of these stances. The U.S. Supreme Court Chief Justice Earl Warren (r. 1954-1969) is the model of judicial activism. Reportedly, while lawyers were giving their arguments in court, he would often interrupt, asking, “Is it right? Is it good?” The model for judicial conservatism was Supreme Court Associate Justice Oliver Wendell Homes, Jr. (r. 1902-1932), who believed that as judge he should “see that the game is played according to the rules whether I like it or not.” He was also a humane person, and he said that the business of law and government is “to improve conditions of life,” but he also wondered “how the devil can I tell where I am not pulling it down more in some other place?” “Probably no man who ever sat on was by temperament and discipline freer from emotional commitments for him to translate his own economic or social views into constitutional commands,” he wrote. His self-skepticism makes him very admirable, in my view, and more importantly his conservatism seems to me appropriate, since the alternative to relying on what the law texts mean is for a judge to make the law ex nihilo. In other words, if a judge or jury’s court decision is not based on what the law texts actually say, I don’t see how that judge or jury could provide a coherent account of the basis upon which they would make the decision.
Whether you agree with me or not that judicial conservatism is more advisable, what is at issue here is not, contrary to what Sandel writes, liberalism and republicanism but judicial conservatism and judicial activism regarding the interpretation of law. The fundamental question is, “When a judge or jury makes its decisions, should it appeal to what the law says or to what the judge or jury thinks is just, no matter what the law says?” I believe the former but even if I’m wrong, people like me who believe in the former can still be committed to justice and other civic principles. This will diverge too far, but it seems to me that if the judges and the people do not like the laws that they have to enact, that is more a reflection of the failure of the legislature than anything else—well, that, and perhaps a failure of citizens to get the kinds of legislators and legislations they want.
3. Sandel on the Political Economy
I’ll be briefer here, but I will just state that essentially what Sandel does is tell this story. Liberalism, which is, again according to Sandel, people pursuing their own ends and governments being neutral toward particular ends, eventually found a new form in economics, where the citizen choosing his or her own ends translated into consumers choosing what goods they value. And people stopped thinking about markets as effective tools to transfer goods and services but as society at large allowing for the transfer of any good or any service, no matter what it may be.
In this vein, Sandel provides an interesting discussion of what “free labor” really amounts to and whether wage labor—working for a wage, that is—constitutes a form of slavery. Sandel argues that the liberal conception is not broad enough to allow that there could be anything wrong with people working for wages. This is because he construes liberalism as the individual choosing among ends. Sandel writes that “exchanging my labor for a wage may be free in the sense that I voluntarily agree to do so. Absent unfair pressure or coercion, wage labor is free labor in the voluntarist, or contractual, sense.” Sandel thinks that the republican conception of free labor gets it right. He writes, “On the republican view, I am free only to the extent that I participate in self-government, which requires in turn that I possess certain habit and dispositions, certain qualities of character. Free labor is thus labor carried out under conditions likely to cultivate the qualities of character that suit citizens to self-government.” Sandel believes that, on the republican conception as opposed to the liberal conception, we can argue about the occasions when wage labor actually would constitute a form of slavery, which is what gives this conception more practical application in how we think about economic activity today.
Sandel’s claim that liberalism cannot account for the terms on which such debates take place would have been surprising to the Classical Liberal thinker Wilhelm von Humboldt, who wrote in The Limits of State Action (1792), “Whatever does not spring from a man’s free choice, but is only the result of instruction and guidance, does not enter into his very being but remains alien to his true nature. He does not perform it with truly human energies, but merely with mechanical exactness. And if a man acts in a mechanical way, reacting to external demands or instruction, rather than in ways determined by his own interests and energies and power, we may admire what he does, but we despise what he is.” Humboldt could write this and be considered a liberal because, as I wrote earlier, liberalism is about a commitment to the principle that we need to be suspicious of authority and political power in the broadest sense, and the burden falls on the authority to give reasons for its exercise and use. Humboldt was pre-capitalist but he believed that certain forms of work could be deeply unjust, especially if they’re only being done to receive a wage and not being done because the person who does the work wants to do it. Sandel’s picture again fails to capture the richness of what is at stake in the discussions of political economy.
The facts regarding economic conditions in the United States can be found in a paper I wrote in advance for a presentation I gave on poverty and income inequality in the United States and Korea. The paper can be found HERE. The presentation can be found on Youtube HERE.