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What I Have Learned Since the First Edition

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

In this afterword, the author reflects on the lessons that he has learned since the publication of the book's first edition in 2004 from the realms of both constitutional scholarship and ... More

In this afterword, the author reflects on the lessons that he has learned since the publication of the book's first edition in 2004 from the realms of both constitutional scholarship and constitutional law. He highlights some areas where his thinking has developed since the book's original publication in ways that should be of interest to readers. These include individual popular sovereignty and presumed consent, whether the Constitution protected economic liberty, how judges can protect the rights retained by the people without identifying them, the empirical nature of the new originalism, the gravitational force of originalism, and the so-called “Constitution in Exile movement.” The author concludes by rejecting the notion that this book offers a “libertarian” interpretation of the Constitution.Less

Market Democracy

John Tomasi

in Free Market Fairness

This chapter examines market democracy, a hybrid approach to liberal theory building that combines a concern for private individual economic liberty with a commitment to social justice. As such, ... More

This chapter examines market democracy, a hybrid approach to liberal theory building that combines a concern for private individual economic liberty with a commitment to social justice. As such, market democracy offers an alternative to both classical liberalism and to high liberalism. After explaining exactly what market democracy is, the chapter considers its conceptual space. In particular, it explores why market democracy asserts that economic freedoms should be treated as basic but not absolute, and why it thus allows taxation in support of a limited range of social service programs. The chapter then compares the views espoused by advocates of libertarianism, classical liberalism, and modern or high liberalism. It also looks at market democracy as a research program, its institutional requirements, and the challenges that it faces from both the left and from the right.Less

High Liberalism

John Tomasi

in Free Market Fairness

This chapter discusses high liberalism, starting with its conception of equality based on an equal sharing of material goods. Compared to the classical liberal ideal pursued by Americans, the ... More

This chapter discusses high liberalism, starting with its conception of equality based on an equal sharing of material goods. Compared to the classical liberal ideal pursued by Americans, the European vision of liberal equality saw property rights not as guardians of equality but obstacles to its realization. This notion of property rights extends back at least to Jean-Jacques Rousseau. The chapter first considers the high liberalist views on property and equality, focusing on the arguments advanced by Rousseau, Karl Marx, and John Stuart Mill, before discussing the rise of social justice and the decline of economic liberty. It then examines John Rawls' idea of justice as fairness and the emergence of libertarianism as the leading philosophical alternative to high liberalism. It also explores the fundamental ideas of high liberals with regard to economic liberty and the role of the state in regulating economic affairs in pursuit of the distributional requirements of social justice.Less

Thinking the Unthinkable

John Tomasi

in Free Market Fairness

This chapter examines the process of “thinking the unthinkable,” which for high liberals means considering the possibility that the basic moral commitments of late twentieth-century liberal ... More

This chapter examines the process of “thinking the unthinkable,” which for high liberals means considering the possibility that the basic moral commitments of late twentieth-century liberal philosophers, while undoubtedly high, were defectively narrow. The phrase “thinking the unthinkable” is associated with the New Labour movement in Britain during the 1990s; it refers to the party's reconceptualization of even the most basic planks of their platform. For Labour leaders, thinking the unthinkable was an exercise in practical political strategy. The chapter first considers economic growth in the United States and in western liberal democracies before discussing liberal arguments for economic exceptionalism in relation to populism and political philosophy. It then explains how a thick conception of economic liberty intersects with democratic legitimacy and concludes by reflecting on the possibility for a realization of liberal justice that is normatively fuller and more ambitious than that of high liberalism—this is the essence of market democracy as opposed to social democracy.Less

Classical Liberalism

John Tomasi

in Free Market Fairness

This chapter offers an intellectual history of liberalism, focusing on the classical view that was eventually displaced by modern, “high” liberalism. It first considers classical liberalism's notion ... More

This chapter offers an intellectual history of liberalism, focusing on the classical view that was eventually displaced by modern, “high” liberalism. It first considers classical liberalism's notion of equality and property rights as well as economic liberty before discussing the ideas of thinkers like John Locke, Adam Smith, David Hume, and F. A. Hayek. It then explores the emergence of market society, with particular emphasis on what Smith called “the system of natural liberty.” It also examines classical liberal ideas in action during under revolutionary America and concludes with an analysis of the essential features of classical liberalism: a thick conception of economic liberty grounded mainly in consequentialist considerations; a formal conception of equality that sees the outcome of free market exchanges as largely definitive of justice; and a limited but important state role in tax-funded education and social service programs.Less

Social Justicitis

John Tomasi

in Free Market Fairness

This chapter examines what it calls “social justicitis”—a strongly negative, even allergic, reaction to the ideal of social or distributive justice. Social justicitis is a malady from which many ... More

This chapter examines what it calls “social justicitis”—a strongly negative, even allergic, reaction to the ideal of social or distributive justice. Social justicitis is a malady from which many defenders of private economic liberty suffer. For libertarians, arguments on behalf of social justice may be as threatening as a bee sting is to some people. In the case of classical liberals, social justicitis arises as an adverse reaction to talk about social justice at the level of public policy. The chapter first considers the notion of distributional adequacy condition from the perspective of classical liberalism and libertarianism before discussing the arguments of classical liberals and libertarians regarding property and the poor. It also explores F. A. Hayek's critique of social justice and the implications of his theory of spontaneous order with respect to distributional ideals.Less

Principles of Equity

Aaron James

in Fairness in Practice: A Social Contract for a Global Economy

This chapter elaborates and defends three basic principles of structural equity. A first requires that “losers” be compensated, in light of a proposed general conception of when a person or social ... More

This chapter elaborates and defends three basic principles of structural equity. A first requires that “losers” be compensated, in light of a proposed general conception of when a person or social class is harmed by trade. The second and third principles concern how the gains of trade are distributed, across and within societies. For reasons of “priority for the worse off,” departures from equality of gain are justifiable when unequal gains flow to developing countries. The chapter also challenges appeals to utilitarianism, economic liberty, legitimate expectations, equality of opportunity, fair-risk imposition, and “cosmopolitan” conceptions of fairness.Less

Conclusion

John Tomasi

in Free Market Fairness

This book has discussed market democracy as a liberal research program and free market fairness as a morally superior account of liberal justice. It has explained the market democratic regime's ... More

This book has discussed market democracy as a liberal research program and free market fairness as a morally superior account of liberal justice. It has explained the market democratic regime's deliberative approach to the questions of political life and its support for a thick conception of economic liberty that is on par with the other basic liberal rights and freedoms. It has shown how free market fairness advances capitalistic policies under the banner of social justice and how market democracy highlights the moral attractions of the market-based approach to social order. The book has also explored market democracy's differences from classical liberalism, high liberalism, and libertarianism with respect to interpretations of issues such as economic liberty and social or distributive justice. In this conclusion, the book reflects on free market fairness and its relation to traditional American values.Less

Feasibility, Normativity, and Institutional Guarantees

John Tomasi

in Free Market Fairness

This chapter considers John Rawls' conception of ideal theory, with particular emphasis on the implications of problems of feasibility for normative political philosophy and market democracy's ... More

This chapter considers John Rawls' conception of ideal theory, with particular emphasis on the implications of problems of feasibility for normative political philosophy and market democracy's institutional guarantees. It defends Rawls' general view of ideal theory, first by explaining why the objection to market democracy—that even if market democratic institutional forms appear attractive in theory, they are unlikely to deliver the goods in practice and so are defective for that reason—has little force when applied against the idealism of left liberalism. It then examines why such arguments are equally ineffective when trained against the idealism of free market fairness. It also analyzes Rawls' idea of “realistic utopianism” before concluding by asking whether market democratic regimes that treat economic liberty as constitutionally basic can realize all the requirements of justice as fairness.Less

Free Expression, American Society, and the Supreme Court

in Free Expression and Democracy in America: A History

Despite the changes that swept across the nation after the Civil War, the law and traditions of free expression remained largely the same. Of course, Northerners disagreed about the implications of ... More

Despite the changes that swept across the nation after the Civil War, the law and traditions of free expression remained largely the same. Of course, Northerners disagreed about the implications of the Reconstruction for free expression just as they disagreed about many other issues. This chapter discusses immorality, expression, and libertarian theory; the legal doctrine's support for suppression; the link between expressive and economic liberties; and the Supreme Court's doctrinal stance on free expression.Less

The Case for a System of International Legal Human Rights

Allen Buchanan

in The Heart of Human Rights

This chapter undertakes the first two justificatory tasks: making a complex moral case for having a system of international legal human rights similar to the one that exists and making headway on the ... More

This chapter undertakes the first two justificatory tasks: making a complex moral case for having a system of international legal human rights similar to the one that exists and making headway on the question of which specific norms ought to be included in it. With respect to the former question of justification, the chapter sets out three distinct justificatory arguments. The first identifies seven important benefits a system of international legal human rights similar to the existing one can provide for a wide range of actors, including states. The second argument shows that having such a system is morally obligatory, given the risks that the existing international order imposes on individuals by conferring eminently abusable powers and privileges on states. The third argument shows that states and the governments that act in their name have a special obligation to support such a system, because they are the chief benefiaries of the flaws of the international order that the system helps ameliorate. The latter part of the chapter provides fairly detailed sketches of justifications for representative rights from each of the major categories of human rights: civil and political rights, economic rights and economic liberty rights, the right to democratic government, and rights of physical security.Less

Political Repression and Culture War

Nick Fischer

in Spider Web: The Birth of American Anticommunism

This chapter examines how wartime and Red Scare repression expanded into a general cultural war on “Bolshevik” causes, individuals, and organizations targeted by the Anticommunist Spider Web during ... More

This chapter examines how wartime and Red Scare repression expanded into a general cultural war on “Bolshevik” causes, individuals, and organizations targeted by the Anticommunist Spider Web during the 1920s. It considers a combination of federal, state, and local ordinances that effected political repression, suppressed free speech and economic liberty, and promoted Americanization in formal education settings led by the Ku Klux Klan and the American Legion. The chapter demonstrates how this climate of repression also led to the collapse of progressivism and impeded social welfare initiatives, gave rise to an amendment designed to make constitutional change virtually impossible, and resulted in the demise of the Roosevelt administration's Federal Theatre Project (FTP). It shows that the Spider Web members and their supporters created a repressive infrastructure of blacklists, witch hunts, loyalty oaths, and compulsory patriotism. In the process, the Spider Web strengthened its influence not only on the doctrine of anticommunism but also on the nation's political culture.Less

Locke’s Property Problem

Daniel Layman

in Locke Among the Radicals: Liberty and Property in the Nineteenth Century

According to Locke, all people are free and equal. Consequently, the natural world belongs to all people in common. But each person, along with his labor, belongs only to himself. Thus, although all ... More

According to Locke, all people are free and equal. Consequently, the natural world belongs to all people in common. But each person, along with his labor, belongs only to himself. Thus, although all people share a common right to use the world, each person acquires a private right to resources he “mixes” with his labor. Before large-scale economic development, there was no problem with each person appropriating as much as he could use, because this left “enough, and as good” for others. But once money spurred development, people could efficiently use far more. Under these new conditions, there was no longer enough and as good lying in common. Consequently, although everyone got richer through economic development, the world divided into resource owners and employees working on others’ resources. All of this posed a dilemma for Locke. On the one hand, people could be required to leave the world lying in common, preserving equal standing but sacrificing well-being for all. On the other, people could be permitted to develop the world into a network of private plots, greatly increasing well-being for all but sacrificing equal standing. Locke notices the tension, but he lacks an adequate solution. He implausibly appeals to our purported consent to money and its consequences before ending the chapter, thus leaving his property problem for others to solve.Less

Rawls on Economic Liberty and the Choice of Systems of Social Cooperation

Alan Thomas

in John Rawls: Debating the Major Questions

Classical liberals argue Rawls fails to give sufficient weight to economic liberty. This paper argues that these classical liberals are mistaken. We know that Rawls took seriously Marx’s critique ... More

Classical liberals argue Rawls fails to give sufficient weight to economic liberty. This paper argues that these classical liberals are mistaken. We know that Rawls took seriously Marx’s critique that the merely formal equality guaranteed by the basic liberties principle was de facto undermined by the material inequality permitted by the difference principle. As a response to Marx, Rawls believed that his principles could be fully specified in only one of two forms: liberal market socialism or property-owning democracy. Each fully specified system disperses capital so as to bring it under democratic control. Furthermore, within each system, economic liberties are robustly protected in a stable way. The classical liberal critique misfires as it takes only a part of his view to be the whole and neglects the full specification of these principles in one or another of Rawls’s preferred social systems.Less

The Moral and Economic Case for Free Trade

Bas van der Vossen and Jason Brennan

in In Defense of Openness: Why Global Freedom Is the Humane Solution to Global Poverty

The chapter makes a prima facie case for free trade. It argues that the case for international free trade is just as strong as the case for free domestic trade. This case is strong because trade ... More

The chapter makes a prima facie case for free trade. It argues that the case for international free trade is just as strong as the case for free domestic trade. This case is strong because trade restrictions involve coercively interfering with people’s freedom to interact on mutually acceptable grounds; such restrictions generally stand in need of justification. Second, there also exists a strong economic case for free trade. Standard economic models and history suggest that freeing up trade strongly benefits both buyers and sellers, irrespective of where they live. The chapter concludes that even though it does not offer a conclusive case for free trade by itself, the burden of proof squarely lies with those who would defend trade restrictions.Less

The Laissez Faire Benchmark

Thomas O. McGarity

in Freedom to Harm: The Lasting Legacy of the Laissez Faire Revival

This chapter explores how the emergence of the corporate form blended nicely with the laissez faire ideology of an expanding class of economic elites in the growing American industrial economy. For ... More

This chapter explores how the emergence of the corporate form blended nicely with the laissez faire ideology of an expanding class of economic elites in the growing American industrial economy. For the laissez faire gurus of the Gilded Age, the ultimate repository of virtue was the marketplace. For Gilded Age elites who believed that economic liberty and individual liberty were inextricably linked, the logical next step was to afford corporations the status of personhood. Laissez faire minimalism yielded undeniable benefits for society. By almost every conceivable measure, the United States economy grew during the last quarter of the nineteenth century. The American Mining Congress came up with its own standards for mine safety, and persuaded Congress to establish a mine safety program in the Bureau of Mines to adopt those standards and pre-empt more stringent state standards.Less

In Defense of Productive Human Rights

Bas van der Vossen and Jason Brennan

in In Defense of Openness: Why Global Freedom Is the Humane Solution to Global Poverty

The chapter defends economic liberties such as the right to private property and freedom of contract as basic human rights, which the authors refer to as productive human rights. Despite being ... More

The chapter defends economic liberties such as the right to private property and freedom of contract as basic human rights, which the authors refer to as productive human rights. Despite being largely ignored or criticized in the theory and practice of human rights, they serve all the key functions that human rights generally serve. Using a basic interest framework, the chapter show that productive rights qualify as human rights because they both directly serve the interests of individual rights-holders, as well as the interests of people across the societies in which they are upheld. The chapter concludes by reflecting on the theoretical implications of a theory of justice that omits productive rights, and focuses only on things like meeting people’s needs. Such a theory will end up distorting important truths about human life and agency.Less