Libertarian futurists such as Tyler Cowen and Brink Lindsey sometimes write as if the point of all our remarkable techno-progress—the victory of capitalism in the form of the creative power of “human capital”—is some combination of the emancipatory hippie spirit of the 1960s with the liberty in the service of individual productivity of Reagan’s 1980s. Cowen says “the light at end of the tunnel” is the coming of a world in which we will have plenty of everything, and all the time in the world to play enjoyable games. Lindsey writes that Karl Marx’s view of communism was wrong in only one respect: In order to live in a world of bohemian enjoyment, we’ll need to remain productive.
Here and at Volokh, Ilya Somin and Mike Rappaport have been conducting a fruitful exchange over the extent of individuals’ moral obligation to obey the law, but the debate should not obscure the deeper and important philosophical ground on which they apparently agree: a shared assumption that the duty arises from something like an individual utility function. Their dispute seems to pertain to whether the individual should deploy his or her moral calculus at the personal (Somin) or systemic (Rappaport) level. The tougher question is whether any society so conceived and so dedicated—namely, one in which individuals calculate their moral obligation to obey the law as atomized individuals—can long endure.
This July 4, like countless prior, will witness paeans to the Declaration of Independence, celebration of its unalienable rights, laments of their demise amid spreading statism and the shrinking space left for the individual in American civic life—all of which might be compelling if the Declaration said any such thing. A more suitable tribute on the document’s 237th birthday would be to recover its actual meaning and proper context. (That context, I should indicate before proceeding further, I learned from George W. Carey, to whom the bulk of the ensuing insights—like most of those I claim for myself—are hereby attributed.)
The typical understanding of the Declaration’s unalienable rights is that they are the immutable and unregulable property of the individual, who is thereby rendered immune from the jurisdiction of the community with respect to his or her life, liberty and pursuit of happiness. But a moment’s inspection renders this individualist understanding absurd.
Yuval Levin provided commentary last week on Utah Senator Mike Lee’s recent speech “What Conservatives are For,” where Lee provocatively argued that the problem with much of the Republican Party’s rhetoric is its insistence that Obamacare, among other welfare state policies, strikes at our individualism and independence. Of course, the most dramatic example of this was Romney’s famous takers’ speech and the crude materialistic anthropology it relied upon. Lee’s speech matters, I think, for the reason that he is viewed as part of a rising group of national political figures like Ted Cruz, Marco Rubio, Rand Paul, among others, who seem willing to rethink standard rhetoric of liberty, limited government, free markets, rule of law and actually pour it into new wine-skins.
Michael Greve’s April 2012 post “Constitutionalism, Hegel, and Us” had several significant points in his short essay masquerading as a blog post. Greve notes that liberal constitutionalism per Hegel’s argument in Philosophy of Right has a problem, a big one.
[P]olitical liberalism (Hobbes, Locke, Kant, and, with some qualifications, Rousseau) confuses civil society with the State. Again, that makes us nervous; but the distinction has a very large kernel of good sense. The principle of liberal constitutionalism, Hegel says, is “endless subjectivity,” or what we call “individualism.” A liberal constitution is a contract among individuals, who consent to limits on their autonomy insofar, and only insofar, as they are consistent with individualist principles. (Think Locke’s Second Treatise.) To state Hegel’s central objection at phenomenological level: you can’t run a free country on that basis.
So we need more than individuals. We need a society of persons constituted by familial, local, religious, and political attachments, recognizing that personhood contains aspirations and purposes that place it beyond the scope of state power. Society “possesses primacy over the state.” The state must serve the ends of the human person. On this basis we can relativize the state’s value.