Private Rights and Public Illusions

Tibor R. Machan

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351293945
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

When members of the media address politicians or report on social problems they assume that whatever issues are important in society must be a matter of public or state concern. Yet, the state or government is but a small part of any human society. Machan asserts that while the exact nature of government is a complicated question, only a totalitarian government aims to assume responsibility for every possible concern of its citizenry. Machan believes that the concept "public" is too broadly used to mean any problem that vocal citizens want government to address. Private Rights, Public Illusions focuses on the proper scope of government authority, especially in regard to people's economic or commercial affairs.

The public realm is one wherein we must act collectively and subordinate individual will to a common purpose. But, according to Machan, in the rest of our spheres of concern no such subjugation is necessary or even desirable. Because he sees the public realm as smaller than is generally believed, he argues that if government continues to intervene in affairs outside this public realm, then restrictions on individual liberties will become an obstacle to society's important progress. Private Rights, Public Illusions combines empirical with philosophical analysis and argument. Its radical critique of government intervention will be of interest to policymakers, philosophers, and political scientists, and theorists.

From the foreword by Nicholas Rescher, "[Machan] clearly sees that the state that protects is a state that controls, and that an all-controlling state is to all intents and purposes a prison. Deeply rooted in a widely informed background in political philosophy and American constitutional thought, Machan's book issues a clarion call against such an assault on citizen sovereignty and individual rights... [He] proceeds to examine a great host of issues in the domain of contemporary public policy disputes: governmental regulation, prior restraint, occupational health and safety, the right to know, pollution control, product liability, freedom of expressions, and various others. His discussion does not simply ride some ideological hobby horse—as so many in this area do—but is deeply concerned to ground its deliberations in a combined care for philosophical principles, empirical realities, and contemporary texts."

1
The U.S. Polity and the Welfare State

The culminating point of administration is to know well how much power, great or small, we ought to use in all circumstances.

—Montesquieu

Does the conception of a public realm limited in scope by the basic human individual rights of every citizen—the conception that I explore and develop in the following chapters—accord with America’s unique political tradition? I argue that it does, certainly more so than the alternative of a broad, unlimited conception.

Whether we ought to maintain and promote this limited idea of the public realm or broaden it as most political theorists appear to want to do, is a question I shall touch upon in the body of this work. For now, let me briefly indicate why the idea of a restricted, limited public scope is more consonant with the unique U.S. political tradition than is the idea of the welfare state, with its bloated public sector. This historical point is not vital to a philosophical inquiry, of course, yet in view of the fact that some socialists, such as the late Michael Harrington, as well as some conservatives, such as George F. Will, insist that the framers of the U.S. Constitution established a welfare state—a society with a largely unrestricted, democratically administered public realm—the question bears some attention.

Welfarism on the Rise

Conservatives and neoconservative’s often seem to suppose that the U.S. government was meant to be a crafter of souls as well as a provider of (at least) an economic safety net. Democratic socialists, in turn, would aver that the framers put the first touches to an economic welfare state, a government that ought to coordinate the production of our diverse prosperity. Out of these “bipartisan” efforts to graft onto the U.S. political tradition a welfare statist doctrine, the conviction is allowed to emerge that public policy in the United States ought to address practically anyone’s or any group’s vested interests, concerns, wishes, desires, and complaints.¹

As the late Harry Girvetz notes, what amounts to the welfare state was already on Nassau Senior’s mind around 1834, when he designed the English Poor Laws (i.e., the Poor Law Amendment Act). “It is the duty of a government”, he said, “to do whatever is conducive to the welfare of the governed.” In the United States the same idea surfaced only in the late nineteenth century, when Richard T. Ely, an institutional economist, denounced laissez-faire as “unsafe in politics and unsound in morals.” The idea had its origins, partly, in the belief that because in modern societies the family, church, and other nonpolitical institutions would be unable to provide the basic needs of people, the state should come to the rescue.²

The claim that the welfare state expresses America’s political design gains some plausible support when we read the Preamble to the U.S. Constitution and indeed from certain portions of the document itself. The Preamble states that the framers “do ordain and establish this Constitution for the United States of America” partly so as to “promote the general Welfare.”

But does the welfare clause in the Preamble support the view that the U.S. political system was meant to be a welfare state? And thus do we really live in a country whose political traditions treat the concept public (or state) as if it were synonymous with social (or community)?

From the constitutional tradition of the U.S. federal government, there is no reason to construe “general Welfare” as referring to the economic and economically related well-being of the citizenry. In short, the general welfare means no more than those legal foundations that facilitate the achievement of the well-being, economic and otherwise, of the people on their own, not government’s, initiative.

The framers appear to have wanted the Constitution and its implicit legal development to enable us all to prosper. By promoting the general welfare they meant to secure the conditions that are of political or legal, as distinct from particular and specialized, necessity for people’s well-being.

Also, the promotion of the general welfare should not be given a utilitarian rendition meaning, “establishing the greatest happiness (or good or satisfaction) of the greatest number.” Instead it makes far better sense to read it as meaning “securing the general prerequisites for everyone so that each person may seek prosperity or welfare.” The most sensible way to read the founders’ and framers’ words—remembering that they were not utilitarians but largely influenced by the Lockean doctrine of natural individual rights—is that they wanted to secure the conditions for prosperity by means of establishing a government that would secure each individual’s basic rights.³

It is unlikely, then, that the basic underpinnings of the U.S. polity imply a bloated public domain such as we find in the welfare state. The framers specifically guarded against that interpretation. In drafting Article I, Section 8 of the Constitution, they rejected putting the point in a way that would include the innumerable special-interest objectives served by the welfare state.⁴ Given the full context of the Preamble, it is clear enough that the framers believed that protecting individual rights—to life, liberty and the pursuit of happiness, as expressed in somewhat more complex fashion through the U.S. Constitution—is exactly how to promote the general welfare politically (that is, by way of government). Individual rights to life, liberty, and the pursuit of happiness—when spelled out in the Bill of Rights to meet contemporary and long-range legal needs—are the standard of political and legal justice. It is this that the framers wanted first and foremost, since their complaints focused mostly on the great scope and powers of European and English governments. Thus they could not, consistently, also have wanted the same kind of interventionist government on the federal level.

Private Property in the Constitution

There is good reason to think that the U.S. Constitution supports a stringent adherence to the principle of private property rights. True, Justice Oliver Wendell Holmes, Jr. claimed (in Lochner v. New York) that “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”⁵ By this he meant that capitalism is not constitutionally mandated by the Fourteenth Amendment, which does protect certain features of a free-market system. Holmes did not consider, however, that what the various principles expressed in the Constitution did very likely accomplish was, among other things, to imply a laissez-faire economy, not a mercantilist, socialist, or even a welfare economy. If one goes through the first ten amendments, one finds that each either endorses or presupposes the right to private property. Thus, there cannot be freedom of speech without the freedom to own places where speeches may be given. No freedom of the press is possible without ownership of equipment, buildings, transportation facilities, and so on. One cannot have the right to bear arms if one cannot own them. And prohibitions against unreasonable search and seizure have little force unless one has the right to own one’s place of residence.

Among the nations of the West, the United States is often taken to have long enjoyed a virtual laissez-faire economic system. Yet the United States never had the benefit of pure laissez-faire; it did not even have the principles of economic liberalism fully and explicitly embodied in its main legal document, the U.S. Constitution. Article I, Section 3, for example, gave the federal government the power to regulate at least interstate commerce. Article I, Section 10 was for long ineffective in the effort to bar legislatures’ impairment of contractual obligations. The same is true of the “privileges and immunities” clause of the Fourteenth Amendment as possible legal protection against state intrusion in the economic and commercial lives of citizens. It has not been invoked in this vein since Justice Holmes declared it inapplicable to economic matters in his Lochner dissent. It is also worth mentioning that much of our states’ common law, which originated in England, does not favor the separation of state and economics but harks back, in large measure, to the feudal conception of “police power.” This is the doctrine that the state is responsible for economic well-being within its realm of jurisdiction. Some of this influence has been blocked by various court decisions such as that of Judge Lemuel Shaw in Commonwealth v. Hunt.⁶ Nevertheless, police power continues to be an instrument of state interference in citizens’ commercial affairs.

Judge Shaw’s argument, however, does help to support the view that the United States has rested more on the idea of freedom of commerce—including the free movement of labor—than on some kind of centrally governed system of economic behavior. Shaw argued that when groups of workers withhold their labor they are not engaging in a conspiracy because,

“Associations may be entered into, the object of which is to adopt measures that may impoverish another, that is diminish gains and profits, and yet so far from being criminal or unlawful, the object may be highly meritorious and public spirited. The legality of such an association will therefore depend upon the means to be used for its accomplishment. If it is to be carried into effect by fair or honorable and lawful means, it is, to say the least, innocent; if by falsehood or force, it may be stamped with the character of conspiracy.”⁷

This clearly is not a utilitarian argument; it concerns what Robert Nozick has called the issue of side-constraints, that is, of whether the means employed for some purpose violate rights. According to Shaw’s position, the consequences themselves are irrelevant as far as the law is concerned. But Shaw’s ruling had been influenced by the natural rights tradition of constitutional jurisprudence, not so much by legislative edict or common (or case) law. The latter are the sources for the bulk of the utilitarian influence, no doubt considerable in Western legal systems.

But surely one major difference between other political systems and Western liberal democracy is the latter’s provision of far greater economic opportunity than is found in other nations, opportunity afforded through the institution of relatively free markets. The United States is a relatively free society and marketplace, compared to other past and present societies. Is this mere habit and custom, or is there evidence that the U.S. Constitution was framed with the objective of making the country economically free?

The Constitution and the Free Market

There are indeed reasons why we should view the U.S. Constitution as a protector of a free-market system of economics, that is, of the economic liberty of persons, rather than a welfare state. But ever since the time of Justice Holmes’s famous but entirely gratuitous quip about the Fourteenth Amendment and Herbert Spencer, the dominant view of utilitarian welfare statism has opposed this idea.⁸ First, there is the general point that the American Revolution was preceded by a Declaration of Independence, wherein our founders boldly asserted that they would hold it to be self-evident that we all have “unalienable rights [to] life, liberty, and the pursuit of happiness.”⁹ Having these rights logically implies the more concrete liberty to engage in commercial transactions with others.¹⁰ Indeed, it seems clear, from both supporters and radical critics, that this was one of the founders’ and framers’ major concerns. They did not wish to be regimented in their concrete living, including their religious, journalistic, or commercial endeavors. As James Madison said, “if industry and labor are left to their own course, they will generally be directed to those objects which are the most productive... in a more certain and direct manner than the wisdom of the most enlightened legislature could point out.”¹¹ So, at least, the founders believed—pace Justice Holmes.

The U.S. Constitution itself seems to contain an acknowledgment of this, although not as explicitly as some might welcome now that the idea is not so widely embraced among our intelligentsia. But as Robert Hessen has suggested,¹² the founders did not see the point of giving explicit protection to the right to private property. Rather, they took it to be politically self-evident that it should be protected, as our rights to life and liberty ought to be.¹³

Indeed, the right to property was to the founders almost as vital an aspect of human life and liberty as the right to physical sovereignty is to women in our time. Furthermore, the right to the pursuit of happiness surely must include the more particular right to seek economic prosperity by means of the free ownership and disposition of property. How could one pursue happiness in this life if one were regimented in one’s economic affairs? Certainly the happiness connected with economic matters that might come one’s way would not be the result of any rightful pursuit of one’s own but at best a matter of public policy.

It seems, then, that the founders and even the framers meant for us to have the right to private property clearly protected, along with other rights. Of course they might have believed that some other rights—to worship, to speak and publish, and to associate freely—were under more immediate threat and needed more clear-cut protection. Ergo, the near absolutism of the First Amendment. But this by no means need be interpreted as a disparagement of the right to private property. Some recent court decisions seem to reaffirm this. We are told, for example, that

the right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a “personal” right, whether the “property” in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right to property. Neither could have any meaning without the other. That rights in property are basic civil rights has long been recognize...

Table of contents

• Cover
• Half title
• Title Page
• Copyright Page
• Contents
• Foreword
• Preface
• Acknowledgements
• 1. The U.S. Polity and the Welfare State
• 2. Rational Choice and Public Affairs
• 3. Human Dignity and the Welfare State
• 4. Should Business Be Regulated?
• 5. Further Normative Aspects of Deregulation
• 6. Ethics and the Regulation of Professional Ethics
• 7. Occupational Health and Safety by the State
• 8. Pollution and Political Theory
• 9. Advertising: The Whole or Only Some of the Truth?
• 10. Some Philosophical Aspects of National Labor Policy
• 11. Philosophies of Public Policy in Conflict
• Index