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The Butcher, the Brewer, the Baker … and the Black Radical

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[…] the poor labourer who has the soil and the seasons to struggle with, and who, while he affords the materials for supplying the luxury of all the other members of the common wealth, and bears, as it were, upon his shoulders the whole fabric of human society, seems himself to be pressed down below ground by the weight, and to be buried out of sight in the lowest foundations of the building. In the midst of so much oppressive inequality […]

Adam Smith, “Early Draft” of Wealth of Nations

When the late Charles W Mills set out to “occupy liberalism,” he did so with two evidently hostile ideologies: Marxism and the Black radical tradition. But, while the occupiers aren’t exactly meant to be greeted as liberators (they too must adapt), the final product is meant to remain distinctively liberal. In outlining “Black radical liberalism” (BRL), Mills takes as the liberal leg of the tripod the ideal theories of the philosophical titans Immanuel Kant and John Rawls. A stronger BRL can be formulated by replacing the ideal theories of Kant and Rawls with the non-ideal philosophy of the Scottish moral theorist Adam Smith and the social liberals that followed in his wake, culminating with the Capabilities Approach. Smith provides the normativity Mills needs for the liberal leg of BRL—and even some of the materialist sociology of the Marxist leg—with fewer wrong turns than Rawls or Kant, but Smith failed to see the abiding patterns of injustice that constitute an “ill-ordered society”. 

Black radical liberalism

Each leg of the BRL tripod modifies the others. Liberalism provides the aspirational normative commitments of freedom and equality for all persons, living in stable peace and rising prosperity in a diverse society in which things tend to get better for a random person on the street. But liberalism in practice has failed to live up to its lofty ideals. Mills argues that liberalism needs to onboard a Marxist critique that theorizes social classes, class-based oppression, and a more materialist understanding of how economic forces shape politics and social life. 

Liberalism and Marxism both, however, have largely failed in practice to account for racialization. Incorporating insights from the Black radical tradition and critical race theory illuminates how class conflict and exploitation are racialized, and how liberal legal and economic institutions have despite—and because of—ostensible “color-blindness” implicitly assumed Black inferiority and perpetuated Black oppression.

Mills seemed to be a committed liberal in his later years, but he often cited an instrumental reason for engaging with liberalism for Black liberatory ends: liberalism is the dominant game in political philosophy. So it makes sense that Mills chose Rawls, the preeminent liberal philosopher of the 20th century, as his primary interlocutor. To develop BRL, Mills first problematizes Rawls’s ideal theory, with its original position and “veil of ignorance” thought experiment. In Rawls’s “veil of ignorance”, idealized rational persons are shorn of all information about the place they occupy in society and then set to hammering out principles of justice they could agree to without such personal information. Because no one introduces racial discrimination behind the veil, Rawls’s theory has very little to say about the non-ideal situation of racial inequality that confronts us this side of the veil.

Mills suggests we consider an alternative veil of ignorance, in which rational deliberators retain information about structural racism, but are charged with fashioning principles of corrective justice given the reality of racist oppression and their ignorance of their own placement within the racial hierarchy. For Mills, Rawls’s famous principles of justice—basic liberties, the idea that any inequalities must advantage the worst off, and fair equality of opportunities—would be transformed into vaguer principles of corrective justice for “eliminating illicit white advantage/white privilege/racial pleonexia [greed] in whites’ basic liberties, opportunities, and social respect, in a non-ideal, ill-ordered, white supremacist society.” 

Mills was committed to radicalizing contractarian liberalism, but this project involved a curious two-step. 

  • Begin with the liberal contract of ideal theory.
  • Problematize the ideal theory by pointing out implicit white supremacist norms.
  • Formalize antiracist principles of corrective justice.

It makes sense from a strategic perspective to engage with Rawls and the massive, still ongoing research program he spun off. But Mills was open to fostering a variety of BRLs. And the de-idealizing two-step can be avoided entirely with alternative liberal traditions. The moral system of sympathy and political system of natural liberty advanced by Adam Smith is an attractive basis for such a project, especially as Smithian insights were further developed in the present day by “capabilities” liberals like Martha Nussbaum, Amartya Sen, and Elizabeth Anderson. Mills obligingly provided a template in the epilogue of Black Rights/White Wrongs for radicalizing a liberal political theory:

  1. Overarching framework: Non-ideal theory
  2. Theoretical focus: Ill-ordered societies
  3. Social ontology: Races in relations of domination/subordination
  4. Task of social epistemology: Exposing dominant racialized ideologies, whether overt or subtle
  5. Actual hegemonic variety of liberalism: Racial liberalism
  6. Normative orientation: Corrective justice
  7. Key normative tool: Black radical “Kantianism”
  8. One possible strategy: Adapting Rawls for corrective justice

After a brief summary of relevant Smithian ideas, I’ll proceed to plug Smith into this template.

Smithian liberalism

Smith described a moral system—his Theory of Moral Sentiments—that was constructed from the bottom-up by moral actors observing what actions and feelings earn approval and disapproval from others in their society. We imagine ourselves in the other’s situation and reach for impartiality by reflecting on what an impartial spectator would judge. This “mirror of society” is inherently contextual. This avoids the problems of abstract ethical systems, but it means our moral sense always remains tethered to the social morality around us, however we may stretch our moral sensibilities by seeking out diverse perspectives.

Smith’s political economy is often pithily summed up as the “system of natural liberty” wherein each person is left free to pursue their own self-betterment by their own lights, within the constraints of justice. But equally important for present purposes is Smith’s attention to historical contingency in shaping institutions. Anticipating Marx, Smith viewed political and economic institutions—including property—as functions of the stage of economic development (on Smith’s stadial schema, these were hunter/gatherer, shepherds, agriculture, and commercial society). In addition, Smith saw a large role for governments in provisioning public goods, education, and support for the arts. Smith never missed an opportunity to point out both the unjust privileges of the rich and powerful and the tendency of said elites to jealously guard such privileges. Smith did not develop a concept of distributive justice, but nevertheless evinced a class consciousness that made him favor taxes that undermined privilege where possible, as well as every reform that benefited the worker against the capitalist. Though plainly an egalitarian, Smith was a gradualist rather than a radical, cautioning against abrupt and dramatic change.

Non-ideal theory

Rawls theorized about a nearly perfectly just society with only minor deviations from strict compliance with social rules. As abstract rational deliberators confer behind a veil of ignorance, of course they fail to introduce racist oppression into their principles of justice. But then, as Mills points out at length, whole literatures are spun out about the angels-on-pins minutiae of the principles of justice in raceless worlds and these ideas bleed into applied analysis of our thoroughly unjust, racialized world in ways that offer little understanding and few solutions for oppression.

Mills sees no way forward but rewinding all of ideal theory and starting contractarian liberalism over, largely from scratch. By contrast, Smith is non-ideal from the start. Indeed it is characteristic of the entire Scottish Enlightenment to reject philosophizing from “original position” hypothetical scenarios. We are always already enmeshed in a matrix of norms, relationships, institutions, and expectations. Smith’s sympathetic “mirror to society” impresses upon us that we are continually reconstituting the norms and institutions that shape our lives by fulfilling our expected roles and acting accordingly. Where theorizing from a hypothetical “state of nature” leaves us adrift when confronted with real world values and social patterns that would never have been approved behind a veil of ignorance, a Smithian approach shows us how these patterns are upheld and urges us to investigate their historical origins.

Smith looks to the past and considers how present institutions came to be the way they are. What were the historical contingencies that brought them about? Who were the powerful interest groups, what were their motivations, and who were their allies and adversaries? How did the distribution of power come to be what it is? Consider Smith’s famous account of how the middle nobility lost influence and power relative to both monarchs and bourgeois towns. In the burgeoning commercial society, these landed gentry over time and in the “wantonness of plenty” traded men-at-arms and retinues of servants in exchange for “trinkets and baubles”. On Smith’s account, as this happened monarchs allied with growing commercial towns to centralize their authority, further marginalizing nobles. Right or wrong, this exemplifies the style of Smith’s historical analysis of institutions and power.

Similarly, Black radicalism emphasizes the long history of anti-black racism as it developed out of slavery and adapted to changing social environments. The 1619 Project or Ibram Kendi’s history of ever-evolving racist ideas from the arrival in America of the first African slaves to the present are typical of this approach. 

A typical, if grossly oversimplified, summary might go like this: following the end of slavery, attempts by Radical Republicans to redistribute the land of former slave holders to the formerly enslaved failed; Blacks advanced under Reconstruction, but political support for continued use of the military to enforce it evaporated and so it was abandoned, leaving the South to white supremacist rule under the Democratic party; a campaign of lynching and other acts of violent white supremacist terrorism, formal Jim Crow segregation in the South, and redlining and other tools in the rest of the country, crushed any burgeoning Black flourishing until the Civil Rights Movement of the 1960s, after which Black oppression was carried on by the War on Drugs, mass incarceration, and the continued use of restrictive land use laws. Throughout this history, Blacks were largely excluded from government-sponsored wealth transfers like land grants and mortgage subsidies aimed at launching and entrenching a property-owning middle class.

This kind of story about the continual adaptation of white supremacist institutions over centuries leading to an entrenched Black underclass fits with Smith’s historical counterfactual approach to understanding the origins of contemporary social classes and relations as they actually exist and function. The focus on history is critical in antiracist thought because white history obscures antiblack violence and wealth destruction. We can contrast this approach to Rawlsian ideal theorizing from an “original position”. Instead of understanding how things got to be the way they are, we’re told they would be very different had they evolved from Ideal Year Zero. The problem of ideal theory is less that it papers over the imperfections of the real world—though it does—but that so much intellectual energy is spent figuring out what the ideal ought to be and no energy is devoted to understanding why we aren’t even approaching anyone’s ideal. Smith and the main company of Black antiracist intellectuals begin, continue, and end in the real world.

Ill-ordered societies

Mills’s second point of direction for Black-radicalizing liberalism is to ditch the well-ordered society of “complete compliance” with the principles of justice and focus instead on ill-ordered societies characterized by deep, abiding patterns of injustice and oppression. Smith himself did not think of society as deeply unjust. He thought one could fulfill the requirements of justice simply by doing nothing—living one’s life according to a tolerable adherence to everyday morality. But Smith also recognized—and called out—oppressive institutions in his day: notably European imperialism, slavery and the slave trade, and infanticide.

But a liberal can take insights from Smith to more radical ends. Smith had an abiding suspicion of power and inequality, and counseled legislators to be suspicious of capitalists and monopolists who would never fail to conspire against the public. He observed a tendency in people to give the rich and powerful the benefit of the doubt, to sympathize with their (sometimes dubious) struggles while failing to see the objectively weightier trials of the oppressed. And Smith identified a “love of domination” as a natural feature of the human psyche. 

Black radicals and antiracists supply the details of how antiblack order manifests and functions, but Smithian liberals can readily understand how such an order is stabilized by the social fact of power and the love of power by those who have it and the mystique power holds over the powerless.

Races in relations of dominance and subordination; exposing racial liberalism

We can put the schema of dominating and subordinated races into Smithian language by noting how the social construct of racial hierarchy is constituted by the social mirror. We see actions that sustain white supremacy earn approval, and those that flout white supremacy earn disapprobation. Indeed this just rephrases Smith’s point about the obsequious attention the poor pay to the powerful. Though Smith is often seen as defending economic inequality, he was both suspicious of the influence that came along with great fortunes and he feared the possibility of an “oppressive inequality” of a few fortunes so vast they could not dissipate by normal means. Black radical liberals might point out the persistence of racial wealth gaps (as well as other gaps in well-being) as a strong analogy to the oppression of extreme wealth inequality. Just as extreme wealth inequality distorts our moral sentiments to sympathize with the rich and scorn the poor, racial inequality—which of course is entwined with wealth inequality—distorts our moral sentiments to sympathize with whites and scorn Blacks and other racialized groups.

Corrective justice

Smith largely predated the move to distributive justice, so there’s little room in Smith for massive redistribution based on legacies of racial injustice where most of the original victims are dead and redistribution must therefore be based on contentious counterfactual calculations. But here it’s worth recalling Smith’s materialist “stadial” view of history. Smith saw social institutions and mores adapting to the mode of production and social organization. Just as the agriculture-centered society gave way to the commercial society made possible by industrialization, the early commercial society Smith knew evolved uniformly throughout the developed world into a late commercial society characterized by a growing bureaucratic state providing social welfare and other public services. A Smithian liberal can and should view this as an apparently natural consequence of maturing commercial society. With the machinery of large-scale redistribution in place, the expectations and mores follow for such redistribution to be equitable. 

There is also the possibility of a generous reading of the famous “system of natural liberty” passage where the sovereign is accorded the “duty of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice.” Smith uses the phrase “oppression” liberally throughout his published and unpublished works, often referring to a kind of “vexation” visited upon a person by those with unaccountable authority they have leeway to abuse, whether these are tax collectors, magistrates, masters, or church officials. A modern reader might instinctively add police and judges to this list. 

Sometimes “oppression” simply means burdensome, as in the case of oppressive regulations. But still other times oppression refers to a large difference in social or political power, or the abuse made possible by such differentials, as in the case of masters and workers or colonial overseers and the colonized. The Smithian sovereign has a deceptively wide scope of powers at their disposal for protecting all members of society from oppression, not just by the state, but by other members and, presumably, social entities like corporations, agencies, and groups.

For a BRL using Smith, white supremacy obviously already constitutes oppression. But as we’ve seen above, racist oppression can be translated into Smithian terms. And on an expansive conception of the system of natural liberty, the sovereign is charged with protecting every person from racist oppression, up to and including corrective justice to end oppressive racist inequality. Affirmative action to racially desegregate public spaces and public offices (as advocated by Elizabeth Anderson) and reparations for slavery and the rolling institutional assaults on Black flourishing and wealth creation (as described by William Darity and A. Kirsten Mullen) are corrective policies that seem well within the scope of a Black-radicalized Smithian sovereign.

A note on Black feminism

One feature of Smithian thought that leans hard against radicalism is his strong inclination against abrupt social change and his warning against “the man of system” who thinks he can move social actors into the preferred positions like pieces on a chessboard. But, as noted, in his own time Smith offered radical diagnoses of unjust but entrenched practices like slavery and colonialism, even if he failed to demand immediate abolition at every opportunity. I’d like to suggest some resonances Smith has with Black feminism, which is itself an indispensable pillar of BRL.

At least one current in the Black feminist tradition can be characterized by radical diagnosis aimed at expanding the political imagination coupled with pragmatic, coalitional democratic politics and an emphasis on harm reduction (negatively) or a politics of care (positively). Black feminists frequently embrace radical causes like police and prison abolition that spook white moderates to no end, but on close examination Black feminists rarely expect—or demand—immediate holistic change. 

The point of prison abolition, for example, is to sharply turn away from thinking about incarceration as a normal or expected policy. Angela Davis, in Are Prisons Obsolete? asks her readers to imagine what we would do if prisons were off the table. Black feminists engage in pragmatic politics rather than cosplaying revolution or indulging in democratic political abstinence because they’re sensitive to the fact that those persons living at the margins and intersections of society are the ones most likely to suffer from political instability or antidemocratic government. They take a margin-to-center approach—centering the concerns of Black women, trans people of color, disabled persons, and other vulnerable people—because otherwise such persons are ignored by dominant group politics.

Smith feared political instability. But Smith’s method of sympathy invites us to stretch ever outward and learn in a context-sensitive manner about the diversity of the human experience, pro-actively reaching out to the margins. Smith himself of course never achieved anything like a feminist consciousness himself. He showed no hint of a non-patriarchal notion of gender roles. Nevertheless, with his suspicion of power, thorough egalitarianism, and attention to the plight of the disadvantaged, Smith held the rudiments of the Black feminist approach to politics.

Smith’s apparent bourgeois antiradicalism seems like an impediment to appropriating Smith for BRL. Smith’s pragmatism is closer to the pragmatism of Black feminism than it is to the anxious centrism of the white moderate.

Black radical capabilities

The “key normative tool” of Black radical liberalism should not be Black radical Kantianism or Rawlsianism, but a Black-radicalized Smithian liberalism. But Adam Smith died over 200 years ago and it would be dubious to tie a live radical movement to a philosophical corpse. Arguably, the closest philosophical heirs of Smith today are liberals of the Capabilities Approach, developed by philosopher Martha Nussbaum and economist-philosopher Amartya Sen. Nussbaum explores this connection in The Cosmopolitan Tradition,

“[…] Smith does not interpret the ideas of justice and respect as narrowly as do Cicero and the Stoics. He sees that a life worthy of human dignity requires more than the absence of aggression, torture, and theft. It requires, as well, certain conditions of labor, because it is in the sphere of labor that a person’s humanity is deeply and fundamentally expressed. The freedom to contract for one’s own labor, the freedom of movement, and the free choice of occupation are all essential to a life in which one can “barter and exchange” like a human, rather than fawning like an animal. Moreover, a life worthy of human dignity also requires the wherewithal to raise a family and bring up children to adulthood, thus a decent living wage; spaces for rest and recreation; and a political life in which laws are made for the good of all, not by pressure of the rich on a captive legislature. Unlike the Stoics, who asked for decent treatment of slaves while holding that the institution itself was a matter of indifference, Smith sees that institutions matter for a life worthy of human dignity and that slavery, colonial domination, and certain forms of domination by the rich over the poor are violations of basic justice. Smith’s argument thus strikingly anticipates similar arguments made by proponents of the Capabilities Approach today.”

Smith, moreover, charges the sovereign with providing institutions to develop human capabilities, as with public education to prevent minds from being “mutilated and deformed” in the division of labor of commercial society. A deeper connection to the Capabilities Approach is found in Smith’s social constructivism. Smith allows that a person deserves to be able to appear in public without shame, and that this requires not just some minimum equipage, but that the requirements vary from one culture to another, indeed are socially constituted. Smith’s example is a linen shirt, without which a “creditable day-labourer” could not appear in public without shame. For capabilities liberals, the plural goods and freedoms required for a life of “truly human dignity” are always understood in their social realization. 

Capabilities liberals already typically see race as socially constructed. At least in principle, capabilities liberals are already open to seeing how race as a set of social relations can shape and limit the realizable freedom and agency of individuals. A Black radical capabilities liberal—informed by the Black radical tradition, critical race theory, and Black feminism—would focus on how race interacts with class, gender, and other social forces to shape capabilities. A capabilities BRL analyzes comprehensive social and economic outcomes to advocate for corrective policies. The goal is full relational equality, so that a person’s race neither constrains nor advances their freedom to do and to be what they might have reason to value. This may take various forms, but the stratification economics of William Darity and Darrick Hamilton, which “investigate[s] structural and contextual factors that preserve the relative status of dominant groups via intergenerational resource transfers and exclusionary practices” is one example with an acknowledged influence from the capabilities approach. The political philosophy of the Movement for Black Lives—as described here by Deva Woodly—is another.

Conclusion

In 2018, after reading Charles Mills’s Black Rights/White Wrongs, I emailed the good professor, asking him what he thought of the possibility of a “Black radical capabilities”. He sent me a remarkably indulgent, encouraging response to an amateur’s question: 

Dear Paul: That’s a very interesting idea. As you know, my line of argument is that the case for corrective justice needs to be developed as a competitor with the currently predominantly distributivist conceptions, since in theory it should be found less objectionable by people on the right-hand side of the political spectrum. I hadn’t thought of recruiting capabilities theory as a potential resource. But maybe you’re right, that one could seek to articulate a corrective capabilities theory that highlighted the differential and disadvantaging contexts that for some people undermine even their socially recognized personhood. (And in this respect put forward a more minimalist list less likely to provoke controversy.) An idea whose time has come…?

Best,

Charles Mills

6 March 2018

I’ve had this essay in mind ever since then, and I regret that I will not be able to with great trepidation ask Mills if he might—if it’s not very much trouble—read my expanded thoughts on an old email exchange.

Black radical capabilities as I see it is not more minimalist, and it’s unlikely to attract those on the right-hand side of the political spectrum. Yet Smith is beloved of right-leaning liberals, even if they emphasize rather different features of Smith’s thought than I do. Classical liberals might indulge their curiosity about what some ambitious social liberals claim to see in his system of natural liberty. Classical liberals might at least appreciate the possibility that the firmly liberal capabilities approach may make Marx redundant in BRL.

As a sociological thinker, like other protoliberals of the Scottish Enlightenment, Smith launched a liberal tradition distinct from deontology and the social contract, including such diverse and disagreeing liberals as John Stuart Mill, John Dewey, Friedrich Hayek, and contemporaries like Elizabeth Anderson and Jacob Levy. Smith is already non-ideal, already fully in this world and not stuck with one foot behind a veil. A Smithian version of Black radical liberalism is thus far more appealing to liberals of this strain.

The point of Black radical liberalism is to unlock the radical potential of liberalism and to translate Black radical demands into liberal terms. I offer Smith and the capabilities approach as a powerful alternative to Kant, Rawls, and the social contract for doing the liberal work of BRL. When it comes to radicalizing liberalism—I think Mills would agree—let a thousand flowers bloom.

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Respecting the Agency of Smokers: the Liberalism of Harms Reduction and the Illiberalism of Prohibitionism

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Two years ago, I published my book The Rediscovery of Tobacco, in which I made a case for taking a liberal approach to tobacco regulation with an emphasis on encouraging harm reduction. The timing coincided with a low point for the cause in the United States. A deadly outbreak of lung injuries caused by dangerous additives in mostly illicit cannabis cartridges had been falsely blamed on nicotine vaping. State and local governments responded by banning vapor products, the Food and Drug Administration ordered many flavored products off the market, and police went store-to-store enforcing emergency rules. In one state, people possessing newly illegal e-cigarettes could have been penalized with up to six months in prison

Two years later, the opportunity to help smokers switch to safer products is threatened once again. September 9 was the deadline, imposed by court order, for the FDA to decide which e-cigarettes and vapor products will be allowed to remain for sale in the United States. The hope for advocates of harm reduction was that scientific analysis at the FDA would prevail over media and political alarmism; past and current leaders at the agency had voiced a commitment to harm reduction, acknowledging that nicotine products exist on a continuum of risk and that transitioning smokers to safer products is a desirable goal.

The agency received 6.5 million applications from companies making e-cigarettes and nicotine e-liquids. While no one expected all or even most of them to make it through the process, there was an expectation that companies making a good faith effort to demonstrate that their products can contribute to public health by displacing cigarettes would stand at least a fair chance of approval.

In the end, the agency refused to accept 4.5 million applications for review. It explicitly rejected more than a million others from 323 companies. The number of applications it approved is zero. The expectation remains that a few products—likely from the biggest companies, including those owned by Big Tobacco—will eventually be authorized. For now, however, although enforcement will lag, every e-cigarette and vapor product in the United States is sold unlawfully. 

At the same time, the lethal conventional cigarettes that take the lives of more than 400,000 Americans every year remain almost entirely unchanged after more than a decade of FDA regulation and they are legally available in any convenience store. Many people who currently vape and are losing access to the products they prefer will likely end up switching to cigarettes.

This is a policy disaster. All of the rules and processes of supposedly rational technocratic administration were followed, and yet the result is this obviously absurd outcome. One has to wonder, how did we get here?

Professional advocates of tobacco harm reduction offer some answers. They point to the influence of ideologically rigid groups like the Campaign for Tobacco-Free Kids, lavishly funded by Michael Bloomberg to pursue an abstinence-only, prohibitionist agenda. They note that the Tobacco Control Act was intentionally written to place greater scrutiny on new products than on cigarettes, protecting the interests of tobacco companies. They lament lazily alarmist journalism on vaping, from small local outlets to prestigious newspapers like the New York Times. They blame grandstanding politicians for interfering with the FDA’s process of review

All of these answers are valid! There is plenty of blame to go around. But these answers are also short-sighted, viewing the immediate present in isolation from other debates about smoking in the recent past. This is a mistake that obscures the ways in which the anti-smoking movement itself created a cultural environment in which it is unable to effectively advocate on behalf of smokers. These advocates continuously fail to persuade in part because, despite their good intentions, they belong to a movement that has spent decades delegitimizing the rights and agency of people who smoke or consume nicotine.

Creating a culture of illegitimacy

It’s illuminating to compare the path of nicotine over the past century with that of other drugs, particularly alcohol and cannabis. Historian Virginia Berridge traces this at length in her book Demons, which examines how drug regulations and culture interact. “[Substances] with widespread cultural legitimacy are not easily made the subject of stringent systems of control,” she argues. “But increased regulation in turn impacts on culture and helps to change it; and that cultural change in turn opens the door for further regulation. It is an iterative process.”

Although she published this in 2013, it’s an apt explanation for why the crackdown on vaping has met with so little cultural resistance. There is a basic lack of consideration for the smokers and vapers most affected by the FDA’s bans that makes them so much easier to enact. Coverage of the topic presents it as a business story or a political drama, with focus on the future of Juul or the use of e-cigarettes among youth (the latter of which has declined substantially). But of the 8-10 million American adults who vape and may be driven to smoking, or the 34 million Americans who smoke and are being denied access to safer alternatives, there is hardly a word. 

Compare this to alcohol. There was seemingly more contentious public debate over bans on Four Loko ten years ago than there is now about bans on e-cigarettes that can save smokers’ lives. And Four Loko was the memorable exception; Americans are generally pleased to allow the sale of just about any form of alcohol, even though its social costs are far greater than those of vaping—underage binge drinking leads to more than 3,500 deaths each year. Yet there is no corresponding movement to ban flavored alcoholic drinks like Fireball or White Claw, and if there were it would be met with vociferous opposition.

Similarly, in states that have legalized cannabis, flavored vapes, candies, drinks, and gummies are perfectly acceptable. For alcohol and increasingly marijuana, America’s libertarian tendency to view adults as entitled to consume what they prefer consistently wins out over concerns about those products’ appeal to youth. In contrast, the idea of an adult nicotine consumer whose rights are entitled to respect has been erased from the conversation.

This isn’t an accident; it’s the direct result of how activists and academics have sought to delegitimize smokers from the very beginning of the anti-smoking movement. When the relevant fronts in the war on smoking were fighting tobacco companies and pushing for smoking bans, their strategy was to stigmatize smokers by portraying them as either passive addicts victimized by Big Tobacco or as unwelcome aggressors fouling non-smokers’ clean air. The spread of ever more expansive smoking bans, starting reasonably in airplanes but extending eventually to parks, beaches, private homes, and entire towns, could never have been justified if one took the rights of smokers seriously. So, professionals in tobacco control decided not to do so.

A sampling of discourse in the field: “We should not underestimate the public awareness value of having smokers found guilty of negligent actions in all situations indoors and outdoors,” is how one Australian activist put it. Stanton Glantz, now one of the most-cited opponents of vaping, praised smoking bans in 1987 for “implicitly defining smoking as an antisocial act.” More recently, with the dubious alarm over thirdhand smoke, smokers themselves have been described as “contaminated” and emitting toxins, rendering them an intrusive presence even when not actively smoking. 

Now that the fights over smoking bans have been won and given way to debates over harm reduction, I find that advocates of the latter don’t much like to talk about the former. They’d rather focus on the present and the deep divide in tobacco control between those who support harm reduction and those who pursue a more prohibitionist approach. But this divide didn’t arise by chance; it’s the inheritance of decades in which the field tolerated the publication of bad science, punishment of dissent, and stigmatization of the very people it supposedly sought to help, so long as doing so advanced its political aims. Unfortunately, those strategies were wildly successful. Thus today, when smokers and vapers desperately need someone to defend their liberties, their allies are unequipped to offer effective support.

Liberal and illiberal harm reduction

The standard framing of contemporary debates within tobacco control portrays a divide between advocates of pragmatic harm reduction and abstinence-only hardliners who want to wipe out nicotine use completely. In The Rediscovery of Tobacco, I argued that this obscures a more fundamental disagreement within the pro-harm reduction camp:

The newly salient division is between those who embrace a liberal approach to regulation and those who advocate aggressively technocratic central planning. The liberals want to see the market for cigarettes eroded by voluntary means, with smokers choosing for themselves to quit or take up lower-risk alternatives like e-cigarettes or snus; liberals support empowering consumers by expanding the range of choices and providing accurate information about the risks of each. The technocrats seek not to nudge, but to shove, controlling the market from the top-down by banning some products entirely and coercively rendering others less appealing. If the technocrats prevail, the freedom to smoke or use nicotine in any form may be extinguished.

E-cigarettes themselves are the product of bottom-up innovation, evolving via exchanges on internet forums and in independent vape shops; when they arrived in the United States a decade ago, the technocratic response of the FDA was to ban them before they ever had a chance to prove their potential for harm reduction. (Fortunately, a federal judge intervened.) Pro-vaping activists, such as consumers and shop owners, tend to emphasize the freedom to experiment and the right to make their own decisions. The more prominent academic advocates of harm reduction, in contrast, tend to remain wedded to a technocratic approach.

As an illustration, consider one recent landmark article in defense of vaping. It’s a joint publication in the American Journal of Public Health written by Kenneth Warner of the University of Michigan and fourteen additional past presidents of the Society for Research on Nicotine and Tobacco. “We believe the potential lifesaving benefits of e-cigarettes for adult smokers deserve attention equal to the risks to youths,” they write, warning that the “singular focus of US policies on decreasing youth vaping may well have reduced vaping’s potential contribution to reducing adult smoking.” They also note that social justice demands greater consideration for adult smokers:

African Americans suffer disproportionately from smoking-related deaths, a disparity that, a new clinical trial shows, vaping could reduce. Today’s smokers come disproportionately from lower education and income groups, the LGBTQ (lesbian, gay, bisexual, transgender, and queer or questioning) community, and populations suffering from mental health conditions and from other drug addictions. Smoking accounts for a significant proportion of the large life expectancy difference between affluent and poorer Americans. For smokers with serious psychological distress, two thirds of their 15-year loss of life expectancy compared with nonsmokers without serious psychological distress may be attributable to their smoking. Vaping might assist more of these smokers to quit.

“To the more privileged members of society,” they conclude, “today’s smokers may be nearly invisible.” Yet the authors do not investigate the question of who rendered these smokers invisible, nor do they couch their defense of vaping in terms of the rights of these groups to take active roles for themselves in deciding which forms of nicotine or tobacco they should be allowed to consume. Indeed, the authors endorse additional coercive measures, such as mandating the removal of nicotine from conventional cigarettes. Many of them have also endorsed banning menthol cigarettes, which would paternalistically restrict the choices of minority smokers and potentially subject sellers to policing and incarceration.

Warner and the other signatories to the AJPH paper are valued allies making the case for tobacco harm reduction, and their recent publication has been justly celebrated within that small community of advocates. But it also must be said that their arguments have not penetrated far into the broader public discourse, where they are swamped by the demonization of vaping and calls for prohibition. Perhaps that’s because in place of a compelling alternative to prohibitionist approaches, they offer only prohibition lite. It’s difficult to advocate for smokers and vapers when the advocates themselves don’t view their autonomy as worthy of respect.

Technocratic advocates of tobacco harm reduction are often just as enthusiastic about top-down control of other people’s choices as their Bloomberg-backed rivals. As an occasional cigar smoker, for example, I’m acutely aware that many of the experts with whom I stand on common ground with regard to vaping would infringe my freedom to smoke cigars without a second thought, and woe to anyone who’d prefer to keep smoking cigarettes.

Warner has suggested that removing nicotine from combusted tobacco would actually free smokers to enjoy tobacco more authentically by separating the drug from the method of delivery, a facile argument that I assume he’s never tried floating at a cigar lounge or bar patio. Imagine trying to persuade beer or coffee drinkers that there would be no loss in stripping the drinks they enjoy of alcohol or caffeine and you see the problem. But it’s not an argument intended to convince smokers, who aren’t meant to have a say in the matter.

The unquestioned assumption across all factions in the field of tobacco control is that the aim of eradicating smoking is universally shared. As Warner wrote in an issue of the academic journal Tobacco Control devoted to exploring possible endgames against smoking, “While we struggle today with often widely divergent perspectives and beliefs, we all share the same vision of the final words to this story: ‘The end.’” Who is the “we” here? Not smokers, surely! Among the journal’s twenty essays, there are none defending the right smoke, and likely none written by a current smoker. Within the field, smokers are dismissed as people to be acted upon, not listened to.

Once again, it’s worth comparing the path of nicotine to other drugs, for which liberalization and harm reduction are gaining traction. Identifying gradual changes in culture beginning in the 1980s, Berridge writes in Demons

Concept shift took place with new ideas about “use” and “problem use” applied to illicit drugs, while, conversely, drug-focused ideas of “addiction” began to be applied to tobacco. Tobacco was changing places to become more like a drug, while drug use itself was becoming “normalized” and part of a wide spectrum of use in society. From the 1980s onward, new ideas about drug use tended to see it as more “normal” while tobacco smoking became seen as pathological.

This shift was due in part to the work of social movements. Progress in harm reduction for drugs was achieved by activists reconceptualizing addicts as self-confident users. “[The] concept of ‘the user’ was significant,” Berridge writes, “for it replaced the idea of the passive ‘addict’ and recipient of services with a much more active concept.” Smokers, in contrast, came to be viewed more like the helpless opium addicts of previous centuries: “The mantle of the nineteenth-century temperance and anti-opium organizations was inherited instead by the anti-tobacco international networks.”

To the extent that there is pushback against this conception of smokers as passive addicts unable to make free decisions in their own interests, it comes from the community of vapers rather than from experts in tobacco control. Consider how Sarah Jakes, an ex-smoker and now vaping advocate in the United Kingdom, reframes the issue with a focus on the individual pursuit of pleasure:

The word “pleasure” seems to be something of an anathema to some in public health. One of the biggest challenges for consumers is in getting regulators, and those who advise them, to understand that for a great many people vaping is not a medicine, or simply a smoking cessation intervention, it works precisely because it isn’t those things. It works because they enjoy it. They love the personalization that’s made possible by the diversity of the market in devices, and the thousands of flavours available. They enjoy the identity of being a vaper and the sense of community that that entails. They love that vaping is similar to smoking, but at the same time a million miles away from it.

This is a positive, active conception of nicotine users making voluntary decisions to improve their lives with something they enjoy. It’s potentially inspiring; it’s also almost completely absent from debates over vaping in the US. This is due in no small part to the fact that our own leading advocates of harm reduction find talk of pleasurably using nicotine deeply uncomfortable. They hold a medicalized view in which nicotine only services addiction, users must be manipulated and restricted for their own good, and vaping is at best a lesser evil.

The rights of smokers and vapers to access safer products could have been better defended in the US if the anti-smoking movement hadn’t long committed to promoting illiberal attitudes toward tobacco and nicotine. A liberal approach would offer many tools to discourage smoking, but it would also recognize some constraints on how far government can go in limiting choices, leaving the decision of what to consume ultimately up to consenting adults. Such an approach might never eradicate smoking completely, but respect for users’ autonomy would serve as a principled argument against the prohibition of lower-risk alternatives that is taking place with so little cultural resistance today.

In an earlier post on this site about related policies, Adam Gurri made a case for the advantages of humane liberalism over technocratic planning:

[Beware] the temptations of the technocratic mindset. It is often pursued with the best of intentions but too often devolves into the “sleight of hand that focuses attention on technical solutions” while missing the “violations of the rights of real people” and other moral tragedies, as William Easterly put it succinctly.

The aspiration of the technocratic approach to smoking was that wise administrators guided by science would carefully control the flow of nicotine and tobacco products on and off the market, smartly transitioning smokers to abstinence or safer forms of use. In practice, the result is that the interests of smokers and vapers have been all but disregarded, millions of safer products banned, vape shops forced out of business, and the use of cigarettes perpetuated. 

The FDA’s clumsy assault on tobacco harm reduction is a failure of the technocratic mindset, but also of the anti-smoking movement’s refusal to treat smokers and nicotine users as political equals whose rights must be respected. Having spent decades treating them like children, it is no surprise that it lacks now the capacity to defend them as adults.

Featured Image by Senseiich

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On Right-Wing Liberalism

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Government is a contrivance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by this wisdom. Among these wants is to be reckoned the want, out of civil society, of a sufficient restraint upon their passions. Society requires not only that the passions of individuals should be subjected, but that even in the mass and body, as well as in the individuals, the inclinations of men should frequently be thwarted, their will controlled, and their passions brought into subjection. This can only be done by a power out of themselves; and not, in the exercise of its function, subject to that will and to those passions which it is its office to bridle and subdue.

Edmund Burke, Reflections on the Revolution in France 

Liberalism can appear an ambiguous doctrine in part because self-described liberals have endorsed a rainbow of beliefs and policies since the 17th century. They have been enthusiastic cheerleaders for capitalism and liberal socialists, defenders of law and order and revolutionaries, imperialists and critics of empire. Contemporary conservatives like George Will and Jonah Goldberg claim to be critical defenders of the tradition, as do radicals like Chantal Mouffe and the late, great Charles Mills. This pluralism of liberalisms raises interesting questions about whether any core beliefs unite these disparate strands. 

The problem is made worse given the exclusionary reasoning typically deployed by the gatekeepers of the tradition, who are quick to denigrate those flavors of liberalism which aren’t to their taste for not being the real deal. In his article “Intellectuals and Socialism” the right-wing liberal F. A. Hayek distinguished between the “true liberalism” of defenders of market society, and the socialist conceits so attractive to mid-century intellectuals. Many of these supposed socialists identified themselves as liberal, but lacked all the convictions Hayek saw as central to the outlook. 

Gatekeeping on the other end of the political spectrum tends to be less prevalent, as many of the more egalitarian liberals from J. S. Mill through John Dewey onwards were cognisant of how their radicalization of liberalism constituted a break from the past. But there is undoubtedly a sense in which left-wing liberals often present themselves as more committed or consistent expositors of the tradition. They claim to be taking the basic principles and insights of liberalism to their normative conclusion without offering needless concessions to the ideology of possessive individualism and capitalism. For left-wing liberals, classical and now right-wing liberalism is insufficiently committed to the egalitarian and universally emancipatory core of the tradition; as Edmund Fawcett would put it, right-wing liberals are insufficiently interested in ensuring the goods of liberalism are available to everyone. Consequently, left liberals believe classical liberalism’s core insights have to be carved out of the dross of its ideological limitations and reformulated in a fresh manner. And that right-wing liberalism remains excessively attracted to fundamentally illiberal ideas about human inequality, the virtues of social stratification, and the maintenance of a coercive state to maintain law and order. 

In what follows, I will clarify the parameters of the right-wing liberal tradition. This should give us a sense both of how broad the liberal tent can be, and why its principles have been invoked to support such a wide variety of positions and policies over time. Understanding the differences between right and left-wing liberalism can also help explicate what positions remain fundamentally outside of the liberal camp, and why right-wing populism and post-modern conservatism have surged to power by pushing illiberal forms of politics. 

Equality and labor in nature 

Right-wing liberalism has its conceptual roots in the political theories of what C. B. Macpherson called “possessive individualism” as formulated by Hobbes, Locke, and others. They were responding to the dynamics of a brave new world which was just emerging. The nascent Scientific Revolution was gradually eroding the literate classes’ faith in the scholastic consensus that dominated much of the Medieval era. The Reformation and subsequent Thirty Years war was followed by the Westphalian international order, where the power of states grew and that of the church waned. 

This was coupled by invigorated concern over the rights and freedoms of religious minorities in continental Europe, many of whom fled to the comparative refuge of North America. And, perhaps most significantly, the old economics of the feudal hierarchy were giving way to a burgeoning capitalist system predicated on the free exchange of labor and rapid production spurred in part by resource exploitation and ruthless imperialism in the colonies. This last was more important in the philosophical conceptualization of possessive individualism, as many of its earliest theorists—most famously Locke—juxtaposed the alleged disparity that existed in a state of nature with the industrious intensity that emerged from the state’s protection of private property and labor contracts. As Locke put it in the Second Treatise on Government: 

For I ask, what would a man value ten thousand, or an hundred thousand acres of excellent land, ready cultivated, and well stocked too with cattle, in the middle of the inland parts of America, where he had no hopes of commerce with other parts of the world, to draw money to him by the sale of the product? It would not be worth the enclosing, and we should see him give up again to the wild common of nature, whatever was more than would supply the conveniences of life to be had there for him and his family. Thus in the beginning all the world was America, and more so than that is now; for no such thing as money was any where known. Find out something that hath the use and value of money amongst his neighbours, you shall see the same man will begin presently to enlarge his possessions.

The philosophical argument of possessive individualism is that in the state of nature, human beings enjoy a kind of radical physical and mental equality. Intriguingly this puts these early liberals in a very different category from more overtly conservative thinkers, for whom natural human beings begin unequal and only become more unequal with the advent of organized political life. For Locke, the state of nature was a “state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection.” 

In his epochal Leviathan, Hobbes argued that all human beings were physically largely equal. Even the strongest human being could be quite easily taken down by a few of the weakest, or even the very weakest if the latter simply waited for his opponent to fall asleep. One might follow self-described classical liberals like Charles Murray or Jordan Peterson by rebutting that this doesn’t matter since the primary source of human inequality is intellectual ability, rather than physical strength. After all, while no one has ever singled out humanity for being the strongest species we do appear to be the smartest. 

But Hobbes was singularly unimpressed by this, insisting that most of those who were impressed by intellectual differences fixated on the possession or lack of scientific knowledge. Hobbes was amongst the first to observe that given the sum of human knowledge increases, the proportion of it available to each of us individually shrinks. It is hard to think of anyone in modernity who warrants the title Dante gave to hated Aristotle (whom Hobbes held in contempt) of “the master of those who know.” Differences in scientific knowledge which so impress inegalitarians are trite next to experiential knowledge, to which no one has a monopoly. Consequently, Hobbes insists that overall by nature “men are even more equal in [faculties of mind} than they are in bodily strength….Prudence is simply experience; and men will get an equal amount of that in an equal period of time spent on things that they equally apply themselves to.”

This initial egalitarianism is striking, but important in distinguishing right-wing liberalism from conservatism. Centuries later in his essay “Why I Am Not a Conservative” F. A. Hayek will castigate conservatism for its belief that in any society there are “recognizably superior persons” who ought to be praised and empowered relative to everyone else. We can see how Hayek followed in the footsteps of his classical liberal forebears in this regard.  But the twist comes in the next set of intellectual moves. Hobbes, Locke and other possessive individualists argue that we may indeed begin morally, physically, and intellectually equal in a state of nature. But we do not stay this way, since the most substantial quality in which we really do differ is our respective capacities to labor and improve the world. Beginning with owning ourselves, Locke held that we also come to have property entitlements through mixing our labor with the matter of the world. The most emblematic example is of course land and agriculture; I justly reap what has become mine where I had the prudence and will to sow.  This labor theory of property entitlements is, of course, deeply linked to the later labor theory of value endorsed by Adam Smith, David Ricardo, and to an extent Karl Marx, which holds that since all economic value is created by labor this is what gives the laborer a property entitlement to that value. 

Note how this can also contribute to an inegalitarian ethos which is even more pronounced than that of the Feudal era. Scholastics argued that inequalities were instituted by God, and consequently beyond human power to change. For possessive individualists, the fact that we are all by nature equal is in fact the starting point for creating justifiable inequalities, since they now flow directly from how hard and intelligently one works rather than forces beyond our control. If you didn’t succeed, it is not because God fated your failure, which might warrant pity and compassion. It becomes the result of personal failures. 

One suspects the sense of being in a competitive struggle where the blame for failure is seen as entirely belonging to those who lose out is a reason for the intense feelings of depression and atomization present in many liberal capitalist societies. Not coincidentally this also relieves the handful of winners from having to think too hard about the lot of those who fall behind, indulging in the flattering vanity that it was purely through one’s own efforts that one succeeded. 

Right-wing liberalism and the state 

Possessive individualists would appeal to this as a justification for enhancing the political power of the liberal middle classes, arguing that unlike the aristocrats who merely leeched off the earnings of others it was the efforts and strivings of the thrift and industrious who created all the value in society. Consequently the proper government was not an authoritarian feudal hierarchy entrenching the entitlements of the leisured, but a representative government protecting the property and advancing the interests of those who rose by their own efforts that constituted a genuinely just society. In so far as classical liberal possessive individualism was both predicated on an egalitarian starting point and agitated to reform the feudal order, it was undoubtedly an emancipatory doctrine. But as we shall see, this egalitarianism only went so far, and where it ends will tell us a great deal about what constitutes contemporary right-wing liberalism. 

In his modern classic Liberalism: A Counter-History the late Marxist philosopher Domenico Losurdo rightly chastises the hagiographic accounts of liberalism for more or less ending where we did in the last section: with the triumphant overturning of tyranny by liberal individualism and equality under the law. At its worst, many liberals drew dramatic exceptions to the fuzzy narrative articulated above; consigning whole races and classes to servitude and even slavery for a colorful array of hypocritical and self-serving reasons. But Losurdo points out that even where liberals didn’t simply draw exceptions, there was an inegalitarian component to their initial reasoning. 

For possessive individualists like Hobbes and Locke it is true that everyone in principles begins equally. By nature we only come into the world owning ourselves, and our natural talents. But, according to the mythologizations of possessive individualism, we do not stay equal. Through the unequal application of labor gradually some people came to have far more, and others far less, property. Not only was this just and right, but the state had a positive duty to use force to compel acceptance of these property disparities, and even entrench them in liberal law against the use of majority power to create a different scheme of property entitlements. 

Sometimes this has been justified through the suggestion that all the state is doing in these instances is protecting people’s “negative” rights to not be interfered with. The implication being, qua Locke, that people possess property by nature and the state’s only duty is to affirm this. But this distinction obfuscates the fact that property is a legal concept, and can only come into existence where the state actively uses violence to compel acceptance of a certain scheme of entitlements. It is quite telling that the only “economic” rights most classical and contemporary right-wing liberals accept are rights to property, with all others by mysteriously disdained as abstract or meaningless. Or, more brutally, that the defence of “negative” rights to property has been so expansive it has justified the spectacular use of force to do everything from punish beggars to justifying the wholesale invasion of a continent in the name of putting it to productive use.. 

So, contra the claims of some classical and right-wing liberals, what defines the doctrine has never been respect for a purely “small” state that simply refrains from interfering with the lives of its citizens. What is required is a state which proactively creates the conditions within which a specific scheme of property is recognized and respected, even by those who disagree with it. This is one of the reasons a focus on law and order-the “restraint on human passions” brought into subjection-has paradoxically been a fixation of right-wing liberals who also claim “don’t tread on me.” For some to enjoy their property rights without interference, and a free market in the exchange of goods and labor to emerge, a coercive state is required to inhibit agitation against the order established by the liberal state. 

The break between right- and left-wing liberalism 

The break between right and left-wing liberalism eventually emerges through a growing wariness of the central narrative of possessive individualism: that by the exercise of our natural talents through labor, people come to acquire very different property entitlements that should by coercively upheld and even expanded by the liberal state. One of the most central critiques was, of course, the Marxist argument that if we actually took Lockean position seriously we’d wind up with a society that looks very different than the one we had today. 

Recall that from Locke’s standpoint, labor creates an entitlement of ownership. But if that happens to be the case, why is that many of the people who do most of the work in our society—from factory workers, to Starbucks baristas—don’t actually own the products they pour their labor into? The Lockean style answer is that, while people are entitled to keep what they mixed their labor with, they are also free to sell their labor to another for a wage. But as Marxists would point out, this inevitably becomes problematic over time since if I sell my labor to someone who then valorizes it for a profit because that labor creates value, this can only be characterized as exploitation. The ownership of the means of production by some, backed by coercive state power, requires most to labor for them and then see the products they create and the value embedded with them taken by another. 

Despite the power of this critique, which undoubtedly turned the tables on possessive individualist defenses of capitalism, it’s still not uncommon to see many right-wing liberals remain addicted to rhetorical strategies linking wealth to hard work and poverty to indolence. The Reaganite demonization of lazy welfare queens is a good example. Ironically many of these same right-wing liberals defend the association between hard work and reward, while also denigrating Marx’s labor theory of value. 

The more sophisticated right-wing liberals shifted their style of argumentation in several different directions. It is worth exploring these in some detail, in order to highlight where left-wing liberals break from their right-wing counterparts. 

One argument reframes the debate as less about labor per se than about the development and possession of natural talents. Inequalities in property, from this perspective, flow less from hard work, than from a combination of effort and having variable abilities which can be commercialized within market society. While this manages to effectively dodge the Marxist critique, it  does so at a price. Moving away from effort to natural talents brings us precariously close to a pre-liberal idea that inequalities are determined by uncontrollable nature. While it might not be a person’s fault that they lack marketable natural talents, it cannot be changed either—even by their own efforts. 

In its more moderate forms, this often turns into an argument for meritocracy. But it has a darker side. Many of the ugliest forms of contemporary right-wing liberalism—the fixation on IQ (and race for that matter), or the crypto racist examination of irredeemably unworthy and unchanging cultures—often lean in on these points. What is worse about this position is that, the very people who hold that there is little some can do to succeed given their limited talents also claim that the state should not do anything to help them. Doing so, on this view, would only result in pouring resources into an endless black hole of need, or pandering to the “lowest common denominator”. 

To the extent liberal is an honorific term, those who put forward the most extreme versions of these arguments barely deserve to be called liberals at all. At best they are fellow travelers, and at worst they are closer to social Darwinists. These extreme figures see life as a competition and unbridled market society as a way of separating the productive and worthy from those fit only for menial and denigrated work. Not coincidentally, those who adopt this perspective also have a limited commitment to liberal politics, with figures such as Murray Rothbard flirting with more extreme right-wing positions as soon as liberal polities seem to be turning against competitive market stratification. Their support for a soft kind of liberalism is contingent on it enabling the right hierarchy to form. When it breaks from the competitive social Darwinism they may be willing to  break from liberalism. 

But even in its less extreme meritocratic form, the argument about natural talents doesn’t seem very convincing. Left-liberals, from Rawls to myself, see it as at best a thinly liberal position since it allows a great deal of morally arbitrary differences in people’s abilities to determine their life outcomes. Even if differences in natural talents were set from birth onward, the fact that they were determined by biology means people deserve no credit or blame for their possession. The reality that the development of natural talents depends in huge part on one’s social circumstances growing up adds further fuel to the idea that it is a bizarre moral basis upon which to justify the dramatic inequalities we see today. If meritocracy is about personal merit, the fact that so much of it depends on good fortune makes it a myth based on faith rather than an ideal yet to be realized. 

The second and more convincing argument for inequality made by right-wing liberals was best articulated by Hayek in The Constitution of Liberty. In it he acknowledges both that outcomes in a market society have little to do with personal effort, or even individual merits and talents. Herman Melville may have worked very hard to write Moby Dick and wound up poor, while someone else may spend a few hours a day gossiping on YouTube and got rich. Most of us would immediately sympathize with the belief that Melville probably merited doing better than Logan Paul. But Hayek’s point is that market society rewards people not on the basis of their effort or talents, but based on creating and selling what consumers want. This may well be good or bad in any particular case, but Hayek believed that in the long run it would come to satisfy human needs more effectively than any utopian competitors. 

This applied equally to the conceits of socialists, who thought everyone could be given what the needed by intelligent bureaucrats, and meritocrats, who thought that the invisible and sublimated hand of the market was somehow a locum for the hand of god-allocating punishment and reward on the basis of merit and worth. In his book Hayek on Liberty, the political philosopher John Gray refers to Hayek’s position as a kind of “Kantian consequentialism”—a label Hayek himself later endorsed. By empowering people’s market freedom, they will on balance bring about better outcomes for all whether they are deserving and hard working people or not. 

This is the most powerful argument made by contemporary right-wing liberals, since it strips away a lot of the moralistic and mythologizing propensities shown by early possessive individualism. Rather than locating the source of inequalities in personal effort or merit, it locates them solely in the dynamic processes of the market; ironically a position that wouldn’t be opposed by Marx himself. 

Intriguingly, these arguments can also justify the existence of a coercive state to enforce law, order and property rights in the name of the greatest good, while going even further. Many of Hayek’s neoliberal counterparts became wary that, by itself, the state was not sufficient to adequately protect property rights and expand the market across the globe. It was both too localized an instrument, and too prone to capture by democratic and radical movements demanding reform and redistribution. What was therefore required was in fact a set of global laws and regulations, now backed by the coercive power of the American state and other international institutions, to both insulate the market from these local pressures and expand its logic to all parts of the world. This project was remarkably successful, and many of us who grew up in the heyday of neoliberalization remember its seemingly endless ambitions with a combination of mirth and anger. In his book Globalists: The End of Empire and the Birth of Neoliberalism Quinn Slobodian observes how this seemingly more hard edged conception of liberalism itself turned on a kind of concealed sublimation. The market is conceived as both beyond human understanding and paradoxically as a system we know to be generally benevolent; organized to gratify human behavior effectively. While a powerful doctrine, it remains to be seen how much of the allure still sticks in the aftermath of 20 years of economic uncertainty under neoliberal conditions.

Are the Hayekians correct? 

For left-wing liberals, the bite of the Hayekian argument lies in its claim that only an unequal market society can adequately create sufficient wealth to raise the quality of life for all; including most importantly the least well off. While we reject the moralistic arguments for inequality which try to locate it in arbitrary abstractions like effort or talent, anyone who wills the end of a life of flourishing for all cannot be indifferent to the means of achieving that. If it turned out to be the case that Hayek et al. were right, and a radical market society made everyone—especially the least well off—best off, that would be a compelling reason to accept it even against other objections. 

But I do not think that has wound up being the case as an empirical matter. With two recessions, stagnating or declining real wages for many, rising inequality and political tensions, and a deepening lack of political accountability towards citizens in favor of policy making to favor the rich, the balance sheet is decidedly turning against the claims of right-wing liberals. By contrast I think a liberal socialist society that looks much more like Scandinavian social democracy, and which seeks to make the benefits of liberalism available and meaningful to all rather than just a few, is the right way to go. We also think that so far liberal societies have failed to push this principle as far as it must go, all too often falling victim to mythologizing and naturalizing inequality or conflating liberalism with the logic of the market. Left-wing liberals agree with their right-wing mirrors that all people are created equal. It is time we actually started treating them equally. 

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Justice Breyer’s Dying Dream: A Book Review and Elegy

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Some day 83-year-old Associate Justice Stephen Breyer of the United States Supreme Court will die. It may be tomorrow. It may be in a decade. But it will happen. The dream which animates his professional life, however, is dying before our eyes. Justice Breyer dreams that Supreme Court Justices, while certainly motivated by judicial philosophies and life experience, are never motivated by the politics of the President that nominated them. Breyer argues that the dream is still alive in his new book The Authority of the Court and the Peril of Politics, but his argument does not persuade.

The legal culture that made Justice Breyer

It is understandable that Breyer would hold on to the dream. For a significant portion of his life in the law it had credibility. When a young Breyer clerked for Associate Justice Arthur Goldberg during the 1964-1965 Supreme Court term, it was the hey-day of the Warren Court. It was a period of Supreme Court history remembered for its expansive liberalism. Because of the association of the Warren Court with liberalism, it can come as something of a shock to recall that Warren was nominated by Republican President Dwight D. Eisenhower

Warren was no anomaly. When Stephen Breyer joined the Supreme Court in 1994, he replaced Harry Blackmun, who was nominated by Republican President Richard Nixon. When Justice Blackmun began his tenure on the Court he so frequently voted with the ideologically conservative Chief Justice Warren Burger that the media dubbed the pair of old friends from Minnesota “the Minnesota Twins”. 

Over their shared tenure on the court, however, Justice Blackmun started drifting to the left of his fellow Minnesotan. According to his biographer Linda Greenhouse during Blackmun’s first five years on the Court (1970-1975), Justices Blackmun and Burger voted the same on close cases 87.5% of the time. In contrast, during the last five years before Burger’s retirement (1981-1986), Justices Burger and Blackmun voted the same on only 30.4% of close cases. It can be surprising to remember that Justice Blackmun wrote the majority opinion in Roe v. Wade in 1973, establishing a constitutionally protected right to abortion, during his ostensibly conservative period. The conservative Chief Justice Burger joined Blackmun’s majority opinion in Roe and also wrote a concurrence.

For most of Breyer’s legal career prior to joining the Supreme Court it was harder to predict where judges would go in individual cases and throughout the course of their career. During that period, it would have been justifiable to say, as Breyer does in his book, “If political groups support, or a president appoints, a justice whose jurisprudential philosophy will, they believe, advance some political agenda in the long run, so be it. To a judge, that would seem a recipe for frustration.”

But as Breyer entered the Supreme Court, the ground began shifting. As Breyer himself notes, over the past few decades there has been “a gradual change in the way the media, along with other institutions that comment on the law, understand and represent the judicial institution.” Breyer laments, “Several decades ago, few if any… reporters and commentators, when reporting a decision, would have mentioned the name or political party of the president who had nominated a judge to office. Today the media do so as a matter of course” 

On top of the media narratives, Breyer observes the Senate confirmation process for Supreme Court Justices “has changed over the past two or three decades, becoming more starkly partisan.” Breyer recalls that once nominees to the Supreme Court enjoyed “broad bipartisan support” when presented to the Senate for confirmation, but “recent confirmations have become essentially party line votes.”

This is all obviously true, but it’s interesting that Breyer never considers that the perceptions of media commentators and United States Senators could be accurate. That in fact it’s not just everyone else who has become more partisan, but that the judicial nominees themselves have become more partisan. 

The arguments Breyer presents in his new book go a long way to explain why he never seriously entertains this possibility. First, he presents a version of Supreme Court history that is a slow and stately march towards greater and greater institutional legitimacy. His story completely ignores the incredibly divisive political impact the Court has had, even as one of its most famous decisions has little concrete impact. He also mischaracterizes what most people mean when they say Supreme Court Justices are political, assuming that people are referring to almost every opinion the Justices deliver from the bench. 

Furthermore, Breyer’s definition of politics is so cramped that it would be impossible for any Supreme Court Justice to ever fall afoul of it . And just in case any reader might still find the actions of Supreme Court Justices political, he obscures the partisanship by describing what the public perceives as partisan disputes as differing “philosophies” or “outlooks”. The facts on the ground stand in stark contrast to these amorphous abstractions.

A Sunday school history of the Supreme Court

In the first section of his book, Breyer provides a quick overview of how the Supreme Court acquired enough institutional prestige that the other branches of government would defer to it. The history, like a dream, is sketchy, full of questionable leaps, and a distorted sense of causality that would take multiple essays to disentangle. To keep things brief, I will focus on his analysis of the Supreme Court’s 1954 decision in Brown v. Board of Education

As most readers will recall, Brown held that segregating children into different public schools based on race was inconsistent with the 14th Amendment’s guarantee of equal protection under the law. Breyer offers this case as an “example [of] the growth of the Court’s power”. That reading is certainly consistent with the popular public perception regarding Brown.

Brown’s status in the public imagination, however, is out of sync with the decision’s actual effectiveness. The Court’s holding led to massive backlash in the United States generally, and in the South in particular. Southern politicians and their constituents didn’t defer to the Court’s judgment. Instead they promised “massive resistance”. Breyer concedes this point: “What happened next in 1955 [to further school desegregation]? Virtually nothing. And in 1956? Almost nothing again. Congress did nothing. The president did little. And the South only complied minimally with the Court’s ruling.” Even when the federal government intervened militarily in Little Rock in 1957 Breyer observes that the Little Rock School District “went so far [the next year] as close the school. That year, no student at Central High, white or black, received an education.”

Breyer immediately pivots away from these sobering facts and begins discussing Martin Luther King, Jr. and the civil rights movement. In doing so, Breyer tacitly concedes that the civil rights movement’s activism is what actually killed statutory racial segregation in the United States. So why does he continue to believe that Brown provides an example of the public’s deference to the Court’s prestige? Breyer relies on two pieces of evidence. First, a conversation Breyer once had with the late civil rights activist Vernon Jordan, who said Brown was definitely “a catalyst” for the civil rights movement that followed. Second, the fact that he “fervently believe[s]” Brown increased the Court’s prestige even though he admits “I cannot prove this assertion.”

I leave it to the reader to weigh the historical record against Breyer’s cocktail anecdotes and personal convictions. Breyer just assumes the latter are superior and goes on to praise “the culture of respect” that flowed to the Court from its decision in Brown. And what did we get from this “culture of respect”? According to Breyer, the ability to peacefully accept the Court’s 5-4 decision in Bush v. Gore, foreclosing Florida’s ability to follow its own election recount laws, effectively declaring George W. Bush president.

Breyer seems to think that arguments like this will make liberals realize that court packing is too radical a solution to the (by his light mistaken) belief the Supreme Court is partisan. I have to confess complete mystification as to why he thinks this.

Justices are rarely controversial and never political

But we can grant Breyer this, overall we’ve developed a culture of deferring to the Supreme Court’s rulings on contentious Constitutional issues. Liberals didn’t go to the streets throwing Molotov cocktails after Bush v. Gore, conservatives didn’t bomb local government offices handing out marriage licenses to gay and lesbian couples after Obergefell v. Hodges. But Breyer’s dream is bigger than that, in his mind the Court is not a political institution, but an institution of legal philosophers reaching decisions based on their idea of justice, not ideology. What does he do to rebut what he sees as the public’s erroneous perception of partisanship? 

Breyer starts by noting the obvious: most of the cases the Supreme Court handles are not controversial at all. They do not raise major partisan issues. This is obviously true, but not responsive to what most people mean when they say Supreme Court Justices are “partisan”. They are referring to the narrower set of cases that touch on divisive issues such as abortion, religious freedom, and whether freedom of speech relates to union dues and campaign finance law. They aren’t referring to cases where the Supreme Court answers whether “a house-like plywood structure” counts as a “vessel” under Section 3 of the Rules of Construction Act

Breyer is more responsive to actual, rather than imagined, critiques when he gives a defition what he means by “politics”. Unfortunately, like his dismissal of the massive resistance to Brown, Breyer reverts once again to a combination of subjective intuition and anecdote:

“When I hear the word “political,” I think of my work on the staff of the Senate Judiciary Committee. We staffers would sometimes play a kind of game, imagining that Senator Edward Kennedy, the committee chair, simultaneously received two calls, one from the secretary of the interior, another from the mayor of Worcester, Massachusetts. Which would he answer first? Most of us would bet on the mayor. Why? Because many of the senator’s constituents lived in Worcester. That, in a sense, is politics. Who elected you? Are you a Democrat or a Republican? Which position is more popular? Where are the votes?”

It’s hard to believe Breyer imagines the game of “Who will Senator Kennedy call back first?” reveals politics in its “elemental sense”. If that were all politics is, it  would be indisputable that politics so defined “is not present at the Court”. 

But “politics” isn’t a word that can be reduced to a mere element, like hydrogen, it’s a compound, like sodium carbonate. This is especially the case in a system like ours, with checks and balances and a division of authority between state and federal government. Even if one assumes that Justices aren’t sometimes partisan (and we will soon see Breyer struggle mightily to encourage us they are not), it seems to beggar belief that an institution that can say what government can and can’t do to further voting rights, free speech, and the definition of marriage is not (even in an elemental sense!) “political”.

Breyer tries to win by definition, but his definition of politics is, like so much else in the book, anecdotal and subjective.

Subjective, sometimes; political, never

Having attempted to win by dictionary, Breyer then rhetorically asks questions many readers have when they hear the claim that the Court does not make partisan decisions, “[W]hy.. are decisions of particular judges so predictable? Why are there ‘alignments’ of the same judges on the same side of various controversial cases?” According to Breyer these alignments are a result of “similar judicial philosophies.” 

But this point needs to be pressed: what judicial philosophies do Supreme Court Justices hold? Justices Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch are self-professed “Originalists”, a judicial philosophy that holds the Constitution and its amendments should be interpreted as it was understood by the public at the time of their enactment. Originalists argue that this theory helps restrain judges from finding new rights in the Constitution that conveniently fit the judge’s personal preferences. As I have argued at length elsewhere, however, Originalism in practice winds up being an elaborate game of interpretive three card monte, where the card selected almost always favors conservative policy outcomes.

Furthemore, a conservative Constitutional scholar argues that while Justice Samuel Alito and Chief Justice John Roberts are not full throated Originalists, they frequently sign on to Originalist opinions and are in agreement with the other Originalist justices. And while there is a strong argument that Justice Brett Kavanaugh is not an Originalist, he also has no problem reaching “alignment” with the Court’s Originalists.

These six Justices have in their varying lengths of time on the Supreme Court converged with their philosophically different (but Republican nominated) colleagues on restricting campaign finance laws, limiting the scope of voting rights laws, allowing religious exemptions to COVID-19 health restrictions, constraining the contract negotiating power of public unions, and (just two weeks before Breyer’s book came out) permitting the enforcement of a Texas law that gives private individuals the ability to sue women for exercising their constitutional right to an abortion

In the last case, Chief Justice Roberts dissented on procedural grounds, but was silent on the merits. The majority decision of Justices Barrett, Thomas, Gorsuch, Kavanuagh, and Alito was also silent on the merits, but one could be excused for suspecting there is yet another philosophical “alignment” in the offing. On all the cases listed the presumably philosophically distinct (but Democrat nominated) Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer “aligned” in dissenting.

I ask the reader, keeping the above facts in mind, to answer the following questions in their head:

  1. Which political party is more associated with supporting restrictions on campaign finance spending? Which political party is more associated with wanting to reduce such restrictions?
  2. Which political party is more associated with expanding voting rights? Which party is more associated with restricting them?
  3. Which political party is more associated with supporting robust COVID-19 health regulations? Which political party is more associated with opposing them?
  4. Which political party is more associated with supporting public unions, such as teacher’s unions? Which political party is more associated with opposing them?
  5. Which political party is more associated with protecting abortion rights by upholding Roe? Which political party is more associated with promising to appoint Supreme Court Justices who will overturn Roe?
  6. What political party were the Presidents who nominated Breyer, Sotomayor, and Kagan to be Supreme Court Justices? What political party were the Presidents who nominated Barrett, Kavanaugh, Gorsuch, Alito, Roberts, and Thomas?
  7. Were the answers to each of these questions the same answer? What impact does that “alignment” of answers have on how seriously you take Breyer’s assertion “Judicial philosophy is not a code word for politics” as applied to our current Supreme Court?

Some people will argue I have stacked the deck. They will point out the recent case where Justices Gorsuch and Roberts were part of a 6-3 majority that held LGBT workers were protected from workplace discrimination under the 1964 Civil Rights Act. They will note Justice Roberts refused to overturn the ACA individual mandate

I don’t deny there are exceptions to my general observations above. I also don’t deny that those unexpected outcomes are a result of more general judicial philosophies. In the LGBT workers rights case Justices Roberts’ and Gorsuch’s commitment to the judicial philosophy of textualism led them to apply the plain language of the text of the Civil Rights Act over the intent of the legislators in 1964 who never would have contemplated such an outcome. Chief Justice Roberts’ unexpected position on the ACA individual mandate came by upholding it as an exercise of Congress’ taxing power, which bolstered the Court’s institutional legitimacy without rolling back the Rehnquist Court’s constraints on Congress’ power under the Commerce Clause. But exceptions, being exceptional, prove rules—they don’t repeal them.

Breyer himself quietly concedes most of my points, stating “it is sometimes difficult to separate what counts as a jurisprudential view from what counts as political philosophy, which, in turn, can shape the views of policy.” He notes that a judge could favor “federalism or free markets or government regulation of business” and that judge “might believe that the Constitution works well for this nation because it embodies one of those basic views.” 

Having effectively acknowledged that judges can read preferred political values into the Constitution, Breyer then wonders if it is even possible to draw a conclusion from that fact: “Are those views jurisprudential, or are they a form of political philosophy? Hard to say. To what extent do these political or jurisprudential views shape judges’ perspectives on policies at issue in particular cases? Yet harder to say.”

Most of the time it is not, in fact, that hard to say. You will get unexpected outcomes here and there, but under the Roberts Court on contentious cases involving the broad language of Constitutional rights, where there is a partisan split on the outcome, more often than not, you can look at the party of the President that appointed a Supreme Court Justice and make a fairly safe bet on where they will land. 

Justice Breyer, true believer

A week after the Supreme Court gave Texas the green light to let private citizens, rather than the state of Texas, impinge on abortion rights guaranteed by Roe, Justice Breyer began one of the the more unfortunately timed book tours in the history of publishing. 

During an interview with NPR’s Supreme Court correspondent Nina Totenberg, she asked about the divergence between current events and his thesis that judges are not partisan. Possibly channeling appellate litigators she observed while reporting on oral arguments before the Court, Totenberg laid fact on fact, before asking her question:

[J]ust last week, we saw the court…, by a 5-to-4 vote, refuse to block a Texas law on abortion even though it directly contradicts nearly a half-century’s worth of abortion precedence. And the decision came in the dead of night with virtually no explanation. Why shouldn’t these events lead people, the general populace, to believe that the court has been politicized already and that perhaps we should change the way justices are appointed – and for how long?

The video of the exchange is worth watching, especially for the way Breyer looks away from Totenberg briefly as she mentions the Court’s recent decision. In a sense, he has to look away. To look at the facts directly would require abandoning his dream of the Supreme Court as a council of non-political philosopher monarchs looking over our rights as benevolent caretakers. Throughout his book, he attempts to persuade us (and probably himself) to believe the dream via rose colored history, definitional fiat, and soft abstraction. 

With the dream before his eyes, all Breyer can say in response to Totenberberg’s question is that he thought the decision was “very, very, very wrong. I’ll add one more very. And I wrote a dissent, and that’s how it works.” That, of course, doesn’t answer the question about understandable scepticism from a portion of the public. Based on his book, I don’t think Breyer has a persuasive answer. All he has is the dream.

Over the past year there have been calls from liberal legal commentators for Justice Breyer to retire from the Supreme Court. He continues to resist the calls, leading the same commentators to accuse him of narcissism and selfishness. Many in the public agree. After reading his book, I have my doubts. I think what we are seeing is the stubbornness of a true believer.

Psychoanalyzing Supreme Court Justices is a sucker’s game, but a hard one to resist. All Supreme Court watchers have a pet theory about how the Justices think. Here’s the one I favor in this case: Justice Breyer isn’t retiring because to retire on grounds of political tactics would implicitly admit his entire model of how judges work is wrong. If he retires at a politically opportune moment, he’s admitting that the dream is dead. If he dies on the job, however, he won’t have to see the dream die. 

Maybe the theory is fanciful. I hope it is. After all, we’ll probably still be around after the funeral.

Featured Image is #protectthelaw, by LaDawna Howard

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adamgurri
18 days ago
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Nihilism and the Liberal Vision of the Good

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He who lets the world, or his own portion of it, choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation. He who chooses his plan for himself, employs all his faculties. He must use observation to see, reasoning and judgment to foresee, activity to gather materials for decision, discrimination to decide, and when he has decided, firmness and self-control to hold to his deliberate decision. And these qualities he requires and exercises exactly in proportion as the part of his conduct which he determines according to his own judgment and feelings is a large one. It is possible that he might be guided in some good path, and kept out of harm’s way, without any of these things. But what will be his comparative worth as a human being? It really is of importance, not only what men do, but also what manner of men they are that do it. Among the works of man, which human life is rightly employed in perfecting and beautifying, the first in importance surely is man himself

J.S Mill, On Liberty

One of the sharpest accusations levelled against liberalism is that it is fundamentally a nihilistic doctrine. The most powerful reactionary critiques have usually taken aim at this perceived vulnerability, with Dostoevsky famously painting secular liberalization as leading to a world where “everything is permitted” and moral standards are levelled down. The “Anti-Christ” Friedrich Nietzsche naturally came at things from a very different perspective, but his disdain for Christian moralism didn’t keep him from proclaiming in Twilight of the Idols that “liberalism is the transformation of mankind into cattle.” A dreary collection of materialistic last men who idly pursued their banal desires and projects, but could be momentarily roused by the latest health fad. Few critics today are quite this scathing (or perhaps just candid), but post-liberals and illiberal democrats are rarely shy about denouncing liberalism for its vulgar permissiveness and lack of commitment to the good life. This is typically associated with big narratives about national decline, brought about by a lack of fortitude in demanding the highest from people and commending the select few who reach the rarefied empyrean heights.

Much of the ammunition for these accusations comes from the fact that liberals have historically been wary of endorsing or even talking about moral virtues and comprehensive visions of the good life. But contra the critics, who often anxiously rush to diagnose this as a symptom of liberalism’s fallenness, from the beginning liberals have offered sophisticated arguments for why an authoritarian politics of the “good life” in the end produces neither virtue nor especially good lives. Beyond these well-worn arguments, I would argue that liberals are also committed to a thin vision of the good life which is no less inspiring for being available to people from a wide variety of cultural and moral traditions. The liberal vision of the good life is one centered around the importance of expressive individualism.

Is liberalism nihilistic?

From the beginning opponents have criticized liberalism for being amoral at best, and nihilistic at worst. Typically there are two prongs to this attack, one metaphysical and the other moral or aesthetic, though the two are often combined and blended in curious ways.

The first prong holds that liberalism is committed to a materialist and individualistic metaphysics which lacks any account of transcendent or “higher” values. An emblematic account can be found in the writings of arch-Catholic reactionary Joseph de Maistre. He famously denounced liberal thought, “what is ignorantly called philosophy,” as “fundamentally a destructive force. This is because its skeptical and critical disposition, wherein liberals sought to question everything, undermined the sublime quality of authority.” For de Maistre one the virtues of antiquarian and Medieval thinking was their insistence that the metaphysical order of the universe was inherently just, and consequently that the socio-political order which had emerged on Earth was both natural and theologically vindicated. 

By contrast liberalism’s Luciferian pride in assuming that the existent order can and should be questioned stripped it of this allure, compelling political authorities to justify themselves to those they sought to govern. For someone like de Maistre this generated the intractable conditions for endless debate and disorder, as each person came to see themselves as an independent legislator who advanced their independent interests without any concern for a shared (and hierarchical) moral order where all knew and understood their place. This led to a kind of cultural nihilism, as there could be no shared consensus on anything.

This accusation has been made by both religious social conservatives and committed atheists. Anti-liberal reactionaries like Nietzsche and Heidegger shared many of de Maistre’s impulses, but rejected his Christian revanchism. Like de Maistre they saw liberal democracy as contributing to the emergence of a nihilistic culture through its corrosive willingness to allow even the most resentful and inauthentic to put forward their slavish values and demand respect. 

But they had little interest in the by then clichéd demand for a return to scholastic absolutism. Something new was required. As Domenico Losurdo observed in his classic Nietzsche: Aristocratic Rebel, what gave these figures their dark brilliance was twofold. The first was the startling claim that, in fact, liberal and for that matter socialist humanism were not some profound break from Christianity. Far from it; they were the continuation of a kind of Christian individualistic humanism through other political means. Their second novelty was a willingness to accept the burden of modernity, and to cease looking for a transcendent source of value that would affirm our sacred qualities from far beyond. Instead Nietzsche and Heidegger accepted the broadly liberal claim that the source of all values must come from within some form of human subjectivity, but rabidly rejected the politics of liberal democracy as swinish, inauthentic, and worst of all English. This brings us to the second main accusation.

In addition to the high order claim that liberal metaphysics leads to nihilistic outcomes, many critics argue that liberalism’s morality and politics are prima facie empty. Sometimes the objection to this is moral, sometimes aesthetic. The moral objection often made by religious authors like Alasdair MacIntyre in After Virtue is that by allowing all individuals to concern themselves merely with the means to pursue their self-selected ends, liberalism has gutted our capacity to consider what ends are actually right and virtuous to pursue. Over a long enough period of time, the grandiose rhetoric of liberal authors leads to mere emotivism: the bizarre belief that our choice about moral ends is a mere matter of preference, much like one’s taste in ice cream flavors. From an allegedly “neutral” liberal standpoint, there is no sense in trying to arbitrate whether an addict who happened to reach a ripe old age led a less intrinsically good life than Martin Luther King, Jr. At best we could assess who gained more utilitarian pleasure from their pursuits and make a calculation that way. 

The aesthetic argument is more common to authors such as Nietzsche, Allan Bloom, or (in some of his many moods) Roger Scruton. Here the fundamental problem with the levelling impulse of egalitarian liberalism is its destruction of standards of excellence and beauty in our culture. The conviction that beauty is merely in the eye of the beholder leaves it up to the mass of individuals to decide what the highest aesthetic values should be. The weight of their numbers, coupled with resentment at their mediocrity, means that the truly great and inspired are either silenced or compelled to cater to the masses in order to make a living. This leads to a deadened and weak culture where people are neither exposed to sublimated aesthetic values nor have the will to produce them. What we get instead is the pleasant, unchallenging, and ultimately life denying. In a further twist, emblematic of Albert Hirschman’s description of the perversity thesis in The Rhetoric of Reaction, this could even lead to the collapse of liberal societies as the aristocratic ethos required to demand freedom becomes diluted by its overextension and institutionalization. As Nietzsche put it, again in Twilight of the Idols:

Liberal institutions cease to be liberal as soon as they are attained: later on, there are no worse and no more thorough injurers of freedom than liberal institutions. Their effects are known well enough: they undermine the will to power; they level mountain and valley, and call that morality; they make men small, cowardly, and hedonistic — every time it is the herd animal that triumphs with them. Liberalism: in other words, herd-animalization … Freedom means that the manly instincts which delight in war and victory dominate over other instincts, for example, over those of “pleasure.” The human being who has become free — and how much more the spirit who has become free — spits on the contemptible type of well-being dreamed of by shopkeepers, Christians, cows, females, Englishmen, and other democrats. The free man is a warrior. How is freedom measured in individuals and peoples? According to the resistance which must be overcome, according to the exertion required, to remain on top. The highest type of free men should be sought where the highest resistance is constantly overcome: five steps from tyranny, close to the threshold of the danger of servitude.

The panorama of authors that I’ve discussed are some of the more interesting critics along these lines. One should be under no illusions that most contemporary critiques rise to anywhere near the level set by them. Indeed, most contemporary arguments about liberalism’s nihilism have become notably more superficial and even shrill. Ironically a lot of them reflect the kind of superficiality they read into liberal society. We get post-liberals who assert that because they feel liberalism’s morality is bad so too must be its metaphysics, without making any effort to actually make metaphysically novel arguments. Or we get an endless series of Claremont Review pieces on how our society must be failing if liberal morality has flourished so thoroughly, with scarcely any moral analysis. Many of these seem like caricatures of what they profess to attack, merely asserting loudly and often that they disdain liberalism and assuming this mere opinion is enough to carry them to argumentative Valhalla. In the remainder of this essay I will respond to some of the better criticisms by sketching out the metaphysical basis for liberalisms’ vision of the good life and arguing for its appeal. This would go doubly so in a genuinely liberal and democratic socialist society that enabled all, rather than just the few, to live flourishing lives.

An argument for expressive individualism  

Liberal metaphysics is impossible without the Scientific Revolution, of which it was the beneficiary as well as the benefactor. This is a point acknowledged by both liberals and trenchant critics like Patrick Deneen. The power of the Scientific Revolution came from its gradual stripping away of teleological and theological conceptions of matter, which defined reality in terms of the high ends to which it aspired. Often linked to this were deep value judgments about the intrinsic worth of existence which could be gleaned through an analysis of the physical world, which revealed the deeper teleological or divine order beneath mere matter in motion. The world of physical time became the mere moving image of eternity. The Scientific Revolution became increasingly critical of this outlook, holding that by interpreting matter in terms of ends we were effectively ascribing moral and aesthetic values to our metaphysical descriptions of the natural world. Instead matter was to be understood deterministically, driven by laws which were comprehensible to reason, but whose ultimate source and purpose were forever concealed to us. 

Undoubtedly the most important liberal to systematize this thinking was Immanuel Kant, whose three Critiques made a compelling case that any telos or beauty that we apprehended in the natural world or the nature of human existence was put there by us. Human reason ascribed teleological ends and beauty to the natural world, but we had no way of knowing for sure whether there was any intrinsic telos or beauty in the play of existence. Indeed Kant further argued that the attempt by many conservatives to assert that there simply must be some kind of transcendent and good order which could be known by humankind, served to reinforce unthinking heteronomy. Occasionally the game was given away when these reactionary authors admitted the rationale behind insisting on the existence of such a transcendent order had less to do with its metaphysical plausibility and more to do with its use in maintaining respect for tradition and social authority.

Of course Kant’s “transcendental” rather than transcendent metaphysics has been criticized for many good reasons, but the broad contours of his argument that beauty and the good must come from within remain plausible. As Hamlet would say “there is nothing good or evil, but thinking makes it so.” Yet the lingering doubt remains that even if this is true, where does it leave us in terms of comprehending the good life? Don’t these kinds of arguments, if anything, lead exactly to the belief that mere opinion and taste—really nothing much—is all that props up the conceit that life has value and can be affirmed? 

The answer to this is that liberals needn’t deny that there may well be some intrinsic value to human life that pre-exists human thought, but we are incapable of knowing what that is for certain. Given the limitations of reason this is precluded to us. But this doesn’t mean we can’t take steps toward deciding what the best kinds of human life are. Here JS Mill is on point when he argues that, absent the possibility of any kind of certainty on the matter, the best solution is an experimental one. We give individuals as much liberty as possible to engage in different “experiments in living” and then individually and collectively draw on the reservoir of experiences to ascertain what is conducive to human flourishing and what is not. This last point is key since most any liberal outside the crudest hedonist would argue that this qualitative spectrum is why it is wiser to be Martin Luther King marching for freedom than an addict strung out in chemical induced bliss. Better to be “Socrates dissatisfied than a pig satisfied.” Allowing people the freedom to experiment in the pursuit of the good life also respects their personal autonomy, the infringement of which may actually preclude them from being capable of virtue in the first place. 

This was a point stressed by Charles Taylor in his magisterial A Secular Age when he described the polluting effects of inauthenticity on good acts. The paradox of conservatives trying to compel people to be virtuous is that they cannot in fact be virtuous under compulsion. They cannot show virtue when the pursuit of a given end is not chosen by them, but compelled by political and social coercion. Consequently even if it was the case that the compelled action was right, its goodness would be irreparably tarnished. I say “was the case” since most of us would now see many of the immoral actions condemned by conservatives, such as sexual liberalization, as either no one else’s business or in fact beneficial to human flourishing.

Though Taylor himself has mixed feelings about the term we could characterize this vision of the good life as a kind of expressive individualism. In it we see the development and expression of selfhood through the pursuit of our life projects as part of what gives meaning to life and allows us to flourish. We can be said to have lived a good life if the self we have created through our projects is one which is worthy of respect and admiration. How we can be certain of that comes from the other big part of how one can live the good life as a liberal: through our cooperation with others, with whom we form mutual bonds of recognition and respect as we support one another in the pursuit of these disparate projects. This is an especially important component of the liberal vision of the good life often ignored by critics. While possessive individualist liberals, down to the neoliberals of the current day, can sometimes stress that it is merely the private satisfaction of our personal wants that matters, all but the most myopic of us can recognize that most—if not all—of the meaning we get in life comes from our relations with other people. 

In a post-pandemic world that is more apparent than ever before. Liberals differ from conservatives and communitarians in arguing that cooperation and mutual recognition require our relations to be as voluntary as possible. This is key to the liberal argument for multiculturalism, which holds that expressive individualist experimentalism can be endorsed and carried out in a wide variety of culturally enriched ways. Within a liberal state peoples of different cultures will pursue their experiments in the good life and consequently maintain their distinctive identity, while respecting the same rights for others. While not all of these cultural experiments in the good life will be to everyone’s taste, they should be tolerated and even embraced by liberals to the extent they are predicated on voluntary relations. Indeed even where a cultural experiment is not to one’s taste, it is still valuable in the experimentalist sense of providing data on what kind of projects are worth pursuing. 

Like all political doctrines, there are of course limits to how far this can go. Even the most tolerant liberal state will inevitably have to step in where some experiments become exceptionally dangerous to all; for instance with groups that pose a radical threat to the existence of others. While some critics, like Schmitt, argue this shows liberalism is no more tolerant than its more reactionary competitors, this rabidly overstates the case. Tolerance isn’t an all or nothing ideal. There are degrees of toleration a state can show for ideological and cultural differences; just because a liberal state won’t tolerate fascism doesn’t mean there isn’t a world of difference between it and a fascist state’s demand for complete conformity under threat of liquidation. Liberal states should show the maximal degree of tolerance for different experiments in the good life, and only draw lines where there are few better options. Where the cut-off should be isn’t something that can be solely or even largely determined by theory, since a lot depends on political circumstance. But undoubtedly liberal states perform much better in this regard than most of their authoritarian competitors, even if they should be doing far more to respect difference and acknowledge the failure to do so in the past. 

Conclusion

Of course simply securing the formal conditions for individuals to be free isn’t enough. A truly just liberal state would be committed to the ideal that everyone should have the opportunity to lead a flourishing life through self-development. It would also acknowledge that, since much of this pertains to our relationships with others, the construction of solidaristic bonds and a communitarian spirit entails that resources and capabilities be distributed so that all benefit from them rather than just a few. If it is the case that liberalism has become increasingly popular in recent years, it is in no small part because so many have received so little of what they need to lead a good life. Indeed, neoliberalization has brought with it a competitive and dispiriting ethos that has eaten away at solidarity like acid through a limb. This is why it is so important for liberals to abandon what is worn and tired in the tradition, and rediscover the merits of material egalitarianism long understood by their socialist kin. A just liberal society is indeed one where anyone could lead a good life. So it is time to create a just liberal society.

Featured Image is City Life, by Victor Arnautoff

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adamgurri
25 days ago
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The Case Not Made: A Response to Anne Applebaum’s “The New Puritans”

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All social relations create vulnerabilities and dependencies that are subject to abuse. This is a fundamental fact about the social nature of humanity, a baseline from which all specific arrangements need to be judged. Most of our public debates,however, take the posture of implying that the mere occurrence of some specific wrong is enough to indict the entire system. While we should not grow complacent about combating the problems of our day, the diagnostic question should always be “compared to what?”

Nowhere does the inability to draw meaningful comparisons lead to ridiculous conclusions more often than in the debate over “cancel culture.” This is the alleged tendency of online “mobs” to attack some target for their ideological impurity, often resulting in the target losing their job (hence being “cancelled”). Anne Applebaum’s recent essay in The Atlantic is what some might call the very specimen of the genre. “The New Puritans” opens with a comparison of the present to the fictional Puritan past of The Scarlet Letter, in which an unwed mother is forced to wear an identifying mark on her clothing in order to make shunning more convenient. Like all essays of this kind, she swiftly moves to the claim that Puritan-style social shunning is very much in vogue today—a claim she fails to back in any meaningful way with evidence.

A deeper understanding of the nature and scope of these cases is clouded by a number of factors. The internal conversations of institutional decisionmakers who fired individuals embroiled in media scandals are rarely made public—this is true both today and in the recent past, making it even more difficult to shed light on what has changed. The media-driven nature of the “cancellation” events themselves makes it difficult to quantify how much occurs beneath the surface, below the higher profile cases, or even the secondary or tertiary cases. 

Moreover, writings on this topic are simply oozing with status anxiety; Applebaum talks almost entirely about people who were formerly top editors at prestigious publications or highly successful academics sitting at top universities. Applebaum is herself a highly accomplished writer for a very prestigious and widely read magazine, as well as the author of books printed by major publishers. It’s possible that even very small problems among this group enjoy substantial public attention, as they have very loud voices. That is not evidence against the pervasiveness of the problem, but it does muddy the water for someone who wishes to get an accurate estimate of that pervasiveness.

This will not be another essay claiming that “cancel culture” does not exist, though many writers I respect have taken this line. It is a rebuttal to what was yet another poorly thought out essay from a writer who ought to know better at a publication that ought to have higher standards. I would like to draw attention to the structural factors in play for this particular issue, and the implications they have for not just our particular political moment but our future.

Applebaum’s argument

Other than the one fictional reference to a period in American history, Applebaum’s chief points of comparison are to Stalin’s USSR, Mao’s China, and (to provide some kind of non-totalitarian reference point) Erdoğan’s Turkey. This kind of rhetoric is precisely why it is so hard to take arguments of this kind seriously. Applebaum has produced a series of terrific and scholarly books on the USSR, so one understands that such topics are ready at hand for her, but the comparisons invite ridicule.

Applebaum’s criticism of “modern mob justice” is somewhat novel in its attempt to avoid litigating whether a given “victim” had done something meriting social sanctions. Hers is a procedural case against “the modern online public sphere” and in particular what it has done to “American cultural institutions: universities, newspapers, foundations, museums.”

Heeding public demands for rapid retribution, they sometimes impose the equivalent of lifetime scarlet letters on people who have not been accused of anything remotely resembling a crime. Instead of courts, they use secretive bureaucracies. Instead of hearing evidence and witnesses, they make judgments behind closed doors.

These “secretive bureaucracies” impose “the equivalent of lifetime scarlet letters” even though the offenders have violated “no laws, and sometimes no workplace rules either.” A thick normative conception of the rule of law which applies not only to actual legal institutions but also (apparently) to any large bureaucracy is assumed but never truly defended. Applebaum’s narrative is of an America that had achieved this ideal more or less but is rapidly moving away from it. And it is the apparent departure from this ideal that leads Applebaum to draw extreme, one might say unhinged, parallels:

I have been trying to understand these stories for a long time, both because I believe that the principle of due process underpins liberal democracy, and also because they remind me of other times and places. A decade ago, I wrote a book about the Sovietization of Central Europe in the 1940s, and found that much of the political conformism of the early Communist period was the result not of violence or direct state coercion, but rather of intense peer pressure. Even without a clear risk to their life, people felt obliged—not just for the sake of their career but for their children, their friends, their spouse—to repeat slogans that they didn’t believe, or to perform acts of public obeisance to a political party they privately scorned.

She quickly assures readers that “you don’t even need Stalinism to create that kind of atmosphere.” What you need apparently is Erdoğanism, as her next example involves self-censorship in Turkey due to “unpredictable prosecutions and drastic sentences for speech or writing that can be arbitrarily construed as insulting the president or the Turkish nation.” Do we have such things in America? Are they the explanation for the apparent pervasiveness of “the equivalent of lifetime scarlet letters” people are forced to wear here?

No, she quickly assures us:

In America, of course, we don’t have that kind of state coercion. There are currently no laws that shape what academics or journalists can say; there is no government censor, no ruling-party censor. But fear of the internet mob, the office mob, or the peer-group mob is producing some similar outcomes.

So a people that is arguably the freest on Earth from legal censorship is nevertheless becoming effectively as unfree as authoritarian Turkey, which employs heavy-handed prosecutions and legal sanctions. Of course, the gesture towards “similar outcomes” fails to specify how similar and how pervasive this problem is, even restricting the question to what goes on within “America’s cultural institutions.” 

Applebaum never attempts to address the problem of scope at all. Her entire research consists of speaking with “more than a dozen people who were either victims or close observers of sudden shifts in social codes in America.” To put matters politely, this seems a very thin basis for diagnosing an encroaching Erdoğanism, never mind Stalinism or Maoism, and quite disappointing coming from someone who has elsewhere shown herself quite capable of diligence in her research.

Indeed, the empirical weaknesses of the essay are quite egregious. There are 21 references to cases that can be publicly confirmed. There are then 19 references to unnamed individuals who spoke to Applebaum directly, the details of which are left out “because they are involved in complicated legal or tenure battles and do not want to speak on the record, or because they fear another wave of social-media attacks.” The number of unique individuals contained in these 19 references is not clear. Nearly all are professors or journalists at institutions like Yale or the New York Times, many quite prominent within those prestigious institutions. One could be forgiven for thinking that Applebaum began by speaking to people within her social circle and then simply expanded it outward from there—but just far enough to get “more than a dozen individuals.”

Many of her specific claims rest upon even weaker reeds than this. In one case she tells readers that “At least two of the people I interviewed believe that they were punished because a white, male boss felt he had to publicly sacrifice another white man in order to protect his own position,” as though anonymously speculating that the white man’s guilt of their bosses was the cause of their unspecified misfortune constitutes any kind of credible evidence of the truth of those speculations. In another she quotes a different anonymous professor who “thought that one of his colleagues resented having to work with him.” In a third she mentions that Yale Law professor Amy Chua “believes that investigations into her relationships with students were sparked by her personal connections to Supreme Court Justice Brett Kavanaugh.” In these and other examples, she simply conveys the beliefs of the people she talked to without subjecting them to any critical scrutiny or providing further reason to believe they are correct. These examples could very well reflect a news-inflicted paranoia rather than the reality of the case. Applebaum needn’t have dismissed these speculations, but she ought to have either substantiated them or left them out.

The biggest conceptual weakness of the essay is the failure to flesh out the standard by which Applebaum is clearly judging the cases she discusses. There is a difference between sanctions imposed by the state and private individuals exercising their right to not associate, and it is not clear that Applebaum has given any serious thought to how we ought to judge the latter.

Rule of law is a standard we hold states to; it is not a standard by which to judge the way voluntary organizations manage their memberships, much less the way private individuals maintain or abandon their friendships. It’s not that she has no case at all—we ought to scrutinize the decisionmaking processes of large employers, for example—it’s that she doesn’t make her case. Do the cases under consideration cash out in a need for abolishing at-will employment? Or is this less about crafting public policy than it is about cultivating private virtue? Questions such as these are not even raised, never mind considered.

Institutions are craven

When it comes to online media events causing people to get fired, I can’t say that I know much more than anyone else. But one thing that I do know—something of a foundational touchpoint—is that institutions, to be institutional at all, are institutionally cowardly. A mass organization provides a convenient means for all individuals involved in it to avoid taking personal responsibility by pointing to other individuals who can in turn point to other individuals, who can point to still more individuals or simply point back to the first individual in the blame game, thus passing the buck in a perfect circle for as long as necessary. 

Applebaum spoke of “secretive bureaucracies” and implied their exercise of arbitrary power in the university or other large employers was something novel, but in 1970 Hannah Arendt could speak of a system “in which no men, neither one nor the best, neither the few nor the many, can be held responsible, and which could be properly called the rule by Nobody.” By 1970 the bureaucratization of life was already decades along its path.

Once you find some individuals who have a vested interest in the preservation of the institution, people who could plausibly “be held responsible” as Arendt put it, matters get worse rather than better. After Pennsylvania State University’s sexual abuse scandal broke into public awareness, an internal investigation found:

Paterno and the three administrators covered up the 2001 report to avoid bad publicity, and that a “culture of reverence for the football program” at Penn State caused others to willfully ignore signs of Sandusky’s abuse.

This was not some exception to the rule. It was not even an especially extreme example in the history of institutional leaders fearing public perceptions more than they feared for people’s safety or wellbeing. You cannot reach out and touch “Penn State” but you can see and talk to the President of Penn State, and you can assume that if the President of Penn State follows the appropriate procedure to have a member of their staff fired, the person will indeed be fired and cease to draw income. Institutions at their core are a tool for shaping our social relations; people speak of “Penn State” as if it were an object that exists in the world, but instead it is a means for structuring power relations among people who do actually exist in the world.

How have human beings typically handled the social power conferred by institutions, historically? About how you might expect: cravenly seeking personal advantage in the power they have as well as to expand that power beyond its current limits, while at the same time seeking to position themselves to stick responsibility for anything that goes wrong on someone else, ideally a rival but in a pinch simply someone lower in the hierarchy. Arendt’s rule by Nobody always involved finding that certain Somebody who would be stuck holding the bag when matters took a turn for the worse. Institutional leadership has always engaged in the most cynical power grabs, crushed the weak underfoot, and publicly humiliated those who became too ambitious.

And yet institutions are an ineradicable necessity for human society and human flourishing. The Penn State scandal does not imply the need to abolish the university, which is the best means we have for producing biomedical research and researchers, to give but one obvious example of the important functions it serves. Domestic abuse doesn’t imply the need to abolish the family. The brutal machinery of state power does not imply that anarchy is anything other than a utopian posture. It would be nice if we could simply do without these things, but we cannot, and such alternatives that we know of aren’t necessarily any nicer in the respects we care about here—no society on Earth or in history has ever done away with the abuse of trust and of authority.

This is not a counsel of despair nor a defense of complacency. Michel Foucault, a thinker whose influence looms over contemporary discussions of social power, once characterized his position as follows:

My point is not that everything is bad, but that everything is dangerous, which is not exactly the same as bad. If everything is dangerous, then we always have something to do. So my position leads not to apathy but to a hyper- and pessimistic activism.

We always have something to do in the struggle against the base tendencies of our institutions and communities. So when it comes to universities or media companies, the question is not whether they are currently engaging in unfair and abusive behavior. The answer to that question is obviously and unambiguously “yes.” The question, in terms of what Applebaum and others are claiming is currently a pervasive problem, is what has changed?

Employers were always sensitive to media scandals centering on their employees, whether this was fair to those employees or not. The difference is that the total number of people who could put a story in front of the public at large was a vanishingly small fraction of the population. Most of the time institutional leadership could side with some privileged member of their ranks or some rising star even when they had done something plainly wrong, and correctly calculated that the story would not reach very far.

And of course, this calculation is precisely what has had to change. Between phone cameras, the stored and shareable nature of digital communication, and the Internet, everyone can now put a story out into the public view. Few may gain a proper public, but all individually hold some small chance of doing so, and that dramatically increases the overall odds that a media scandal will originate from within an institution.

High-status people occupying prestigious positions have also always been targets for media scandals, because they are precisely the people for whom a scandal will sell papers. Stories about relatively unknown persons who were made to stand in for a type were relatively common too, and so people lower in the social status hierarchy were not exactly safe from the gaze of journalists either. But typological hit pieces don’t sell like celebrity tabloids, and so the latter and more respectable variants soaked up much more of the attention of a media class that was, as I have said, relatively small.

Now that everyone has the power to publish, everyone faces essentially the same incentives. Going after a famous person, especially if they have some prestige beyond mere popularity, is much more likely to garner you attention if you pull it off than commenting angrily on an unknown blogger’s posts. It is quite possible that Applebaum’s social circle really is under digital siege, but the rest of the country is not. Usually, anything that can be done to the powerful is done to the weak, with greater frequency and intensity. This is the norm of the American criminal justice establishment, for example. But it’s possible that the incentives of attention-seekers are such that the problem is most intense at the top and diminishes the further down one goes. Or perhaps it transforms into something more like cyberbullying and online harassment⁠—psychologically terrible but unlikely to result in the target getting fired.

I do not have nearly enough information to settle these questions and I won’t pretend to. But I do hope that if we are going to continue to have these moral panics over something called “cancel culture”, someone would at least try to.

What is known

I have tried quite hard to find hard data on this matter. FIRE, an organization I consider fairly credible in its consistency regardless of the partisan valence of particular incidents, has documented 426 “targeting incidents involving scholars at public and private American institutions of higher education,” and 477 “disinvitations” (Joe and Hunter Biden being the first and second most recent incidents at the time of this writing). Canceled People, an organization dedicated entirely to tracking cases of this kind, documents 217 cases of “cancellation.” The National Association of Scholars documents 185 cases of “cancellation” in academia. The first FIRE database goes back to 2015, the second goes back as far as 1998. The Canceled People list includes a case from 1991. The NAS list has a case from 1975, one from 1988, and one from 2004, growing considerably more recent after that.

I have not bothered to deduplicate these lists; even if they are all unique cases, the total is very small relative to both the size of the populations they are drawn from and the time period over which they occur. If any other problem in social life was occurring at this frequency and at this scale, we would consider it effectively solved. I am open to the argument that these things are difficult to document and these databases dramatically undercount, but it could be an order of magnitude larger and it would still be quite small relative to nearly any other problem one could imagine. 

Perhaps the most compelling evidence that something has changed of significance is a much-contested poll which asked, “Do you or don’t you feel as free to speak your mind as you used to?” Only 13% said they did not feel as free when the same question was asked in 1954, but that number jumped to 48% in 2015 (then dropped to 40% in 2019). Critics were understandably skeptical that self-censorship was 73% lower in the era of McCarthy and Jim Crow, but that doesn’t imply that the poll result is meaningless, even if we’re unsure just what, exactly, it does mean. Attempts to graft it onto very specific narratives about “cancel culture” are unpersuasive. These narratives have not, to my knowledge, been connected to this particular data with any particular rigor.

The authors of the paper with the poll data note that this is highly correlated with educational attainment. Elsewhere they go further:

“This helps to explain the nature of contemporary censorship culture. We might imagine that Americans engage in self-censorship if they lack the educational resources to know how they are supposed to talk about certain issues. But the evidence suggests that those Americans who have little education and live in the hinterland actually feel most free to speak their minds. Perhaps they have simply never been taught that it is wise to keep their mouths shut.”

Allow me to offer an alternative possibility: colleges do not, in fact, teach students “that it is wise to keep their mouths shut.” Instead, they induct students into a peer group, a peer group that has both grown much larger over time as a greater percentage of Americans have obtained a college degree, and has grown more nationally integrated, as the Internet has made rapid communication from any part of the country a reality. A large, integrated peer group, which has become trivially easy to make a public statement in front of, is a recipe for peer pressure. Because it is large, it does not take a large percentage of the group to have an appetite for punitiveness for there to be a large number of individuals in absolute terms who do.

The persistence of public posts for years, including the posts of teens who have since grown up, coupled with ubiquitous phone cameras and more discreetly stored conversations over email and chat—all of these can be shared with an enormous audience with very little effort. Peer pressure in the past largely relied on enough people being present to observe something that would then be denounced, or more often than not unsubstantiated rumors were enough of a basis for condemnation. It should come as no surprise that when an unprecedented quantity of material to potentially denounce is made available, there are those who will make use of it.

The so-called “hinterland” to which the authors refer, meanwhile, does not form a comparably integrated national peer group. The college-educated group also fills the most prestigious positions in the country, as most of the subjects of Applebaum’s essays did. The former is therefore less likely to be a target in the first place, but then the pool of peers who might potentially denounce you is also smaller, further reducing the odds of facing peer pressure of this nature.

What to do

Many vocal persons seem very sure of how pervasive this problem is or its exact nature. I am not, and I have tried not to pretend to be. I can only offer possible models, and critique the weaknesses of arguments like Applebaum’s.

As to what can be done, that is clearer. If you don’t like the power of the “secretive bureaucracies” at large employers, then consider promoting laws more favorable to the development of unions and alternatives to at-will employment. 

If you want to make a case for fighting back against an extreme culture of conformism, and you have the resources and the chops to document that culture, then actually document it, rather than speaking to “more than a dozen people” and then crafting a narrative that is then subtly turned into a national problem worth devoting time, energy, and resources to. Investigate the recent history of America before the Internet for relevant points of comparison. Actually wrestle with the role of social sanctions in a free society rather than simply assuming that their mere existence is a sign of unfreedom.

This matter may be difficult to truly get to the bottom of, but it’s hard to say, as it feels that few have truly tried diving below the surface

Featured Image is Telegram, by Luisa Max-Ehrlerová

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adamgurri
31 days ago
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New York, NY
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