From Liberale et libertaire.

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Fareed Zakaria recently published a piece, Incarceration Nation, that points out there are now more people under ‘correctional supervision’ in America – more than 6 million – than were in the Soviet Gulag Archipelago at its height. The imprisonment rate in the US is approaching 1 per 100 which is generally an order of magnitude greater than the other western-styled democracies around the globe. Zakaria notes that this gap between the US and the rest of the world is relatively recent phenomenon. Thirty years ago, at the start of the so-called “Reagan Revolution,” the US incarceration rate, though at the outer bounds, was nonetheless in line with other civilized democracies. Since then, however, the US incarceration rate has more than quintupled.

I mention the Zakaria article because it offers a relevant contextual backdrop to this recent Cato Unbound essay, A Bleeding Heart History of Libertarianism, by Matt Zwolinski and John Tomasi. Both of these authors are academics involved in the so-called “Bleeding Heart Libertarian Project” to marry distributive justice to libertarian political theory. The preferrred distributive justice paradigm is the Rawlsian one. The intent of their essay is to demonstrate the compatiblity of this paradigm with a historical weaving of the (classical) liberal tradition. The corollary is that libertarianism, as typically defined, is a departure from this tradition. It is proposed then that a sympathetic adaptation of Rawls will right the course of a proper libertarian political theory.

Frankly, I would not dispute the primary thrust of the essay: that a “non-bleeding heart libertarianism” is a departure from liberalism. I would qualify this agreement by noting that a “non-bleeding heart libertarianism” is not a modern development. Historically, libertarianism is rooted in a rejection of any normative social contract rationale for obedience to the State. Of course, we are talking about a different history than the highly selective one outlined by Zwolinski and Tomasi. However, it is not my intention to adjudicate libertarian history in this post. I’ve previously given my account of this history here and here. Instead, I will only point out there is a reason why libertarianism departs from liberalism: namely, because liberalism inherently violates its own constraints regarding the artificiality of the State and politics. By artificiality, we mean the State is not supposed to become the source of government. At the very least, the State should avoid the evolutionary equilibrium of becoming the total source of government(i.e., a Police State). However, Zwolinski and Tomasi’s essay demonstrates how easily distributive justice can legitimize a police state and provides yet another example of bleeding hearts not exactly bleeding for everyone.

The Zwolinski and Tomasi essay begins with an erroneous, straw-man premise:

To the extent that respect for property leaves some individuals poor and destitute, individuals might be called by a sense of charity and beneficence to respond. But the moral justification of free market institutions is logically independent from any claims about the effects of those institutions on the material holdings of the poor.

Whether intentionally or unintentionally, Zwolinski and Tomasi mischaracterize the libertarian principle. Enforceable moral claims of any property rights regime are not independent of the material holdings of agents. Indeed, the libertarian principle is actually a moral constraint against property rights regimes. If agents are worse off under the regime than they would be without the regime, then there is no moral obligation to obey the regime. This moral constraint illuminates an essential distinction between libertarians and progressives. Libertarians are not intererested in distributive justice correcting unjust regimes. The correction is the abolition of these regimes. I would argue the classical libertarian position–if we were to,say, follow Bastiat–is that any property rights regime that requires distributive justice to retain legitimacy is probably corrupt. Following Bastiat, we would identify distributive justice as a form of bribery against defection. I would add that these bribes are much more directed at the “middle class” than the so-called poor. Thus, we can expect the so-called “social safety net” to largely consist of an array of middle-class subsidies and not a device or thing designed to minimize a worst-case condition.

Zwolinski and Tomasi identify Rawlsian justice as the “gold standard” of contemporary social justice. But as I havepreviously discussed, Rawls later modified his methodological approach to defend his principles of justice. David Friedman, in hiscritique of Zwolinksi and Tomasi provides a clue to the problem with Rawls’ original approach. Writes Friedman:

And one implication of that version, taken as literally as I have been taking the natural rights alternative, is that it is better to have a world where everyone is at a utility level of a hundred than a world with one person at ninety-nine and everyone else at a thousand. I have never yet been able to figure out why anyone takes either the derivation or the conclusion seriously.

The answer to Friedman’s criticism is that Rawls’ formulation was actually challenged. In particular, John Harsanyi’s “originalist position” maximized aggregate utility(straight utilitarian). Indeed, Harsanyi’s version exposed the problem with the “Veil of Ignorance” as a normative construct: it lacked a plausible risk aversion model. Rawls’ “Maxmin” version is equivalent to infinite risk aversion. Harsanyi’s “max utilitarian” is equivalent to zero risk aversion. Neither infinite nor zero risk aversion is plausible. The VOI instrument has to establish the appropriate level of risk aversion in the original position that falls somewhere between zero and infinity. Obviously, then, the VOI does not yield unique solutions and thus loses its normative power.

Friedman’s primary criticism of Zwolinski and Tomasi is that the Rawlsian conception doesn’t actually link to the historical utilitarian foundations of “classical liberalism.” But John Harsanyi’s formulation directly casts the Originalist Position in such utilitarian terms. And it is this utilitarian casting which more or less demonstrated that the normative foundation of Rawls’ theory was built over a house of cards.

Rawl’s modified approach to his theory of justice was developed in his later book, “Political Liberalism.” Political Liberalism more or less concedes the lack of a rational foundation for a unanimity regarding hypothetical justice principles. Political liberalism is an explicit shift from the rational to the “reasonable,” a shift from justice as “moral” to justice as “political.” It is here that Rawls lays out the ideas of the “overlapping consensus” and “Public Reason.” The government stays neutral between competing moral foundations. Justice is a “political product” defined by the overlapping consensus of moral dialogue. Reasonable discussion is supposed to validate Rawls’ principles of justice. In practice, however, it merely roots justice in the cultural war. So, the gold standard of contemporary social justice turns out to be the overlapping consensus between Rush Limbaugh and Daily Kos. This, of course, is a farce. But it only points out the inherent flaw of “Public Reason.” Public Reason has nothing to with liberal justice; instead it is entirely rooted in a communitarian war over “recognition.”

The Zwolinski/Tomasi essay makes it clear that “recognition” plays an important in who “qualifies” for justice. They propose a rather high barrier of entry to qualify for being “poor.” Evidently, “Poor” excludes the social rift-raft and the unemployed. To be properly poor means to be employed. But this is a silly and obviously artificial exclusionary construction. An obvious solution to maximize the condition of our properly defined “poor” would be to simply to maximize the barrier of entry to qualify to work. A “social justice claim” reduces to a protectionist claim, which is often the case. This type of protectionism becomes particularly insidious when you consider that who is legally “recognized” to work in a National Security State becomes a matter of public debate of an overlapping consensus between Rush Limbaugh and Daily Kos. This is hardly justice; rather, it’s a moral perversion.

In the past I have discussed the concept of the “Pink Police State.” The Pink Police State, like all police states, delineates a clear demarcation of privilege between the professional classes and those who are shit out of luck in terms of inclusion in the club. In other words, it is “the illegals,” the scapegoats, and the “unrecognized” who take the full brunt of a police state. It breeds a permanent underclass. The Pink Police State, however, is a type of classification that likely portends a flourishing recognition of a “libertarian” professional class. This professional class will spare no opportunity to equate unprecedented recognition with an unprecedented condition of human liberty. And the primary aim of this community will be recognition, not justice(or reform). In this vein, the Bleeding Heart Libertarian Project simply appears to be an exercise in professional recognition. It is difficult to take seriously claims of distributive justice in a police state, particularly if the “bleeding heart” concern for the poor excludes the very victims of this police state. But this is exactly how a professional class can babble about social justice in an underlying context marked by an unprecedented political economy of a prison industrial complex.

The West is accustomed to regarding “Police States” as restricted to non-democratic states, but “voting” has nothing to do with its definition. The definition is as follows: (1) undue restrictions on the freedom of mobility, the freedom of transactions, the freedom to work (2) perverse rates of domestic incarceration (3) system-wide domestic surveillance organs engaged in domestic spying in all aspects of the social, economic and political life of its citizens. The makeup of these organs will usually entail some degree of a secret police and an unaccountable intelligence complex (4) the militarization of the borders (5) an arbitrary distinction between law and the exercise of power by the executive agency (6) a militarization or para-militarization of “law enforcement” (7) a social context where the government actively propagandizes a permanent enemy, a permanent threat, a permanent war (8) a social context that glorifies the organs of authority, “the men and women in uniform.”

The United States is a Police State. And the Pink Police State that will be its social justice…