Saturday, August 25, 2012

Madison & Marx at the Legal History Blog

At the Legal History Blog, Anders Walker makes some startling claims (followed by my response):

Over the past few years, we’ve seen a series of books on equality in America, most lamenting the fact that the United States has grown increasingly unequal over the past few decades. To take just a few examples, see Timothy Noah, The Great Divergence: America’s Growing Inequality Crisis and What We Can Do About It (New York: Bloomsbury, 2012), Joseph Stiglitz, The Price of Inequality: How Today’s Divided Society Endangers Our Future (New York: Norton, 2012); and Glenn Greenwald, Equality and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful (New York: Macmillan, 2011). All of these texts seem to assume that inequality is and has always been considered a bad thing. Has it? Gordon Wood makes the case in The Radicalism of the American Revolution that the founders endorsed a theory of equality “as no other nation has ever quite had it” precisely because they believed that no one “was really better than anyone else.” (RAR, 234) Yet, even Wood concedes that “[i]n embracing the idea of civic equality ... the revolutionaries had not intended to level their society.” (RAR, 233). No indeed.

Take Federalist No. 10. Often read for its endorsement of a large national republic, the document also presented a vigorous defense of inequality, one that anticipated Marx by over half a century. Take this line, for example: “the most common and durable source of factions has been the various and unequal distribution of property … A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes.” Isn’t that the basic premise of Marx’s 1848 Communist Manifesto? Yet, unlike Marx, Madison came to view the emergence of “different classes” as a positive. “From the protection of different and unequal faculties,” he observed, “the possession of different degrees and kinds of property immediately results,” meaning that people with certain faculties, or talents, will be rewarded with certain amounts of property. More property will go to those with more faculties and, in Madison’s view, “[t]he protection of these faculties is the first object of government.” Put simply, government’s role is to preserve inequality, precisely so that there will be innovation and incentive to work. This leads to a larger argument about the Virginia Plan and the ensuing Federal Constitution rather strive to end inequality, Madison’s Constitution aimed to preserve it, precisely to encourage the development of individual faculties, or talents, talents which would then be rewarded with property. What would Stiglitz, Greenwald, and Noah say to this? Rather than a classless society, as Marx would propose, Madison seemed to envision a society of vast disparities in wealth, disparities protected by the Constitution. Any call for “an equal division of property,” argued Madison, even if pushed by an electoral majority, constituted a “wicked project.”

Herewith my response:

The comparison between Marx and Madison is egregiously unavailing owing to a confusion and conflation of concepts and conceptions. First, as Jon Elster points out, Marx warned of any attempt to “define classes in terms of the kind or the amount of property owned.” Moreover, for Marx, the emergence of different classes in the sense of a class being “for itself” is in fact a “positive” insofar as it represents qualitative progress to the extent that that class is no longer simply “in itself,” and even beyond the intermediate position (formulated by Elster) of a “class for others.” The class “for itself” has attained “class consciousness,” which is “not merely a matter of shared ideas and sentiments, but above all a capacity to overcome the free-rider problem in collective action.” So, Madison “did not in any way, shape or form “anticipate Marx” with regard to the latter’s concept (and conceptions) of class. Of course it is true that Marx could never countenance the rather naïve idea that differences in amounts or kinds of the possession of property accurately and fairly represent the meritricious distributive effects of individual differences in faculties and talents, however much individual properties will play a role in such possession, if only because he conceived “the central relations between classes [as involving] the transfer of surplus from below and the exercise of power from above.” And, given his ideas on the “good life” and “self-realization” (involving, for example, the ‘free actualization and externalization of the powers and abilities of the individual’), Marx would have dismissed if not laughed at the Social Darwinian notion and fashionable neoliberal idea (based on a troubling, if not always explicit, conception of human nature) that inequality is the primary cause necessary for “innovation and incentive to work.”

And whatever else the authors of the Federalist Papers or the Founding Fathers believed, I’m quite confident they did not envision the extent or depth—that is, the extreme sort—of inequality one finds in our country today. No one argues they believed in anything remotely close to “absolute equality,” they were, after all, Liberals of a kind. In other words, they did not envision economic liberalism of the neoliberal variety (a species of libertarian liberalism that differs in significant respects from its earlier laissez-faire incarnation) that prevails across our political spectrum, the sort of Liberalism that effectively undermines, not supports, political liberalism. They did not envision the sort of economic power wielded by large transnational corporations that operate in an global environment in a manner corrosive of the basic ability of national governments to effectively exercise sovereign control over their economies, in other words, to integrate the virtues of both economic and political liberalism, not simply the former at the expense of the latter. As John Dewey would remind us, these men did not foresee the enormous economic power of capitalist organizations on the order we find in our world, be it the transnational corporations or the financial institutions that answer only to the logic and rules of capitalist imperatives as they understand and shape them. They managed to liberate us from the aristocratic control of society and the stranglehold of mercantilism, thus the problems that beset us today are not their problems, and they would, I believe, therefore be largely sympathetic if not supportive of our attempts to address the increasing inequality we witness in our country, an inequality such that libertarian economic liberalism makes mincemeat of political liberalism, rather than the two liberalisms working in a mutually fecund or complementary fashion. Indeed, even John Stuart Mill, a quintessential historical Liberal, was neither a laissez-faire nor a neoliberal capitalist, for reasons deserving of re-examination. No doubt his views on worker self-management in privately owned firms would today be dismissed as socialism or communism. Given the enormous and unprecedented power of capitalist financiers and firms, I can imagine at least several of the Founding Fathers coming to endorse what Rawls, a quintessential contemporary Liberal, called “liberal socialism” (the essential features of which he introduced in his posthumously published Lectures on the History of Political Philosophy, 2007) (Rawls cites John Roemer’s 1994 volume, Liberal Socialism, for elaboration of these features).


It perhaps should also be noted that because Madison viewed the rights of property as “‘positive,’ that is, conventional and revocable” rather than “natural,” the opportunity, however difficult, to repeal laws and amend the constitutional order existed. We might, with Stephen Holmes in Passions and Constraint: On the Theory of Liberal Democracy (1995), look at Madison’s views in Federalist No. 10 as designed to assure the cooperation of property-owners in the new, and thus by definition “fragile system of collective rule.” Unlike, say, contemporary libertarians and neoliberals (who prefer to let free markets set the terms and conditions of social justice), Madison could be said to share Locke’s belief in the government regulation of private property (even if, as Liberals, they understood the markets of their time to be the most efficient method for redistribution of social wealth), which brings it out of the realm of pre-political, “natural,” or sacred rights (in the sense of belonging to some inviolable private sphere). Seen this way, the early Liberal views on private property “initiated a partial transfer of security from the old monopolists of land to other, less well-established, groups. What was ‘loosed’ onto the world, in fact, was not acquisitiveness but disrespect for inherited status.” So, again, we might (counterfactually) imagine a Madison in the modern period not necessarily siding with that part of the Liberal tradition that “dogmatically opposed curtailments of property rights,” if only because he would be intelligent enough to appreciate “the insecurities and maldistributions that these rights, because unqualified, tended to generate in new circumstances.” Madison and his colleagues, we might imagine, would once again demonstrate the courageous if not experimental spirit of their Liberalism, by “agree[ing] to infringe some property rights, by establishing a progressive income tax system, for instance, for the greater and more justly distributed security” (Holmes). While this is part and parcel of the justification of the “welfare state” and does not amount to the “Liberal socialism” I mentioned above, nonetheless, and again, it seems to at least capture the historically progressive nature of the Founding Fathers’ Liberalism and preclude a more anachronistic reading of their political philosophy.

In keeping with the focus of Walker's post, we can, once more with Holmes, ask ourselves, “Why did James Madison cling to the rights of private property with what now seems like monomaniacal zeal?”

“For one thing, private property was a symbol of security against the whims of political authority and the violence of rowdy neighbors, not to mention more impersonal forces. It was one of the few supports an individual could cling to in a sea of turbulence. As other sources of security, such as a more reliable legal system, became established, private property had to bear less of this burden and thus absorbed fewer of life’s uncertainties. Hence, it lost its former aura, its immunity to criticism. It even became visible as a source of insecurity itself.”

Classical Liberals endorsed the proposition that the subsistence needs of the poor could be satisfied by infringing, or better, curtailing, the private property rights of the rich. As a classical Liberal, I suspect Madison would have seen the wisdom of welfare-state liberalism that sets limits on the kind of inequality that leads to material insecurity and the failure to meet basic needs, a liberalism “based on the indubitable premise that the children of the poor have done nothing to merit their disadvantages in life” (Holmes).


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