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CONSTITUTIONAL CAPITALISM:

Economic Freedom, Social Justice, and the Myth of Modern Liberalism

JOHN TOMASI

Draft of 9/10/08: please do not cite.

Chapter 2: Constitutional Capitalism

I would like to defend a view of liberalism that I call constitutional capitalism. Like

libertarianism, constitutional capitalism is an interpretation of classical liberalism. As we

saw in Chapter 1, advocates of social democracy often treat libertarianism as the premier

representative of the classical liberal view. However, I believe that constitutional

capitalism is superior to libertarianism on a number of dimensions.

First, while Nozickian libertarianism is often treated as a philosophically sophisticated

expression of earlier classical liberal views, Nozickian libertarianism has been criticized

(appropriately, in my view) for its lack of deep foundations.1 But, as we shall see,

constitutional capitalism has foundations that go much deeper than those of Nozickian

libertarianism. Indeed, the foundations of constitutional capitalism run at least as deep as

the foundations of any of the best modern liberal defenses of social democracy. What’s

more, while the libertarian approach to “cleaning up” the earlier expressions of classical

liberalism involved rejecting many of the state-sponsored programs that gave traditional

classical liberal views their distinctive nuance and shape (e.g. Smith’s support for wide

public education for children of factory workers, Hayek’s support for a guaranteed

minimum income), constitutional capitalism provides a more sophisticated approach to

these issues. Rather than lopping off such programs as errors or practical concessions,

constitutional capitalism provides a framework that can explain why classical liberals

traditionally advocated those particular tax-funded programs even while retaining their

strong objections to a more expansive role for the liberal state. Indeed, constitutional

capitalism can even explain very fine details within the classical liberal tradition----for

example, it can why classical liberals sometimes disagree among themselves about

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precisely which programs the state should support and which it should not.2 Finally, and

most important, constitutional capitalism is superior to libertarianism when viewed from

the perspective of basic liberal values. If advocates of social democracy are interested in

considering a rival to their preferred ideology, it is constitutional capitalism rather than

libertarianism that they need to study.

What is Constitutional Capitalism?

Constitutional capitalism is a distinctive liberal view. It combines institutional insights

from classical liberalism with moral insights from modern liberalism. Speaking loosely,

we might say that constitutional capitalism builds a traditional classical liberal

institutional home atop a modern, egalitarian liberal justificatory foundation. To invoke a

distinction from the previous chapter, constitutional capitalism fits together the

evolutionary rationalism characteristic of the British liberalism of Smith, Hume, and

Hayek with the constructivist rationalism of the European liberalism of thinkers such as

Rousseau, Kant and Rawls.3 The distinctive features of constitutional capitalism are best

brought out by contrasting it, on the one hand, with the social democratic views

advocated by modern liberals and, on the other, and the libertarian interpretation of

classical liberalism. I shall now describe that contrast. By doing so, I hope to provide a

preliminary architect’s sketch of the constitutional capitalist structure I hope to erect in

this book.

Samuel Freeman has offered an influential critique of libertarianism.4 As Freeman says,

for modern liberals such as Rawls, the primary role of democratic government is to

maintain the conditions for realizing “a moral ideal of persons as free and equal self-

governing agents who have an essential interest in maintaining their freedom, equality,

and independence.”5 The pursuit of those conditions serves as a kind of master value for

thinkers in the modern liberal tradition. But, Freeman argues, close examination shows

that libertarians do not affirm that master value. Instead, the master value that libertarians

affirm—the principle of self-ownership---makes their view closer to a political view

against which liberalism historically defined itself: feudalism.

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Modern liberals advocate various forms of social democracy---welfare-state liberalism,

property-owning democracy, or liberal socialism---as institutional means for realizing the

substantive egalitarian conceptions of justice they affirm. Social democracies seek to

realize the value egalitarian liberalism through an institutional division of labor, with

some values being entrenched constitutionally and others being assigned to the control of

democratic legislative processes.6 Thus, as Freeman says, “Rawls’s first principle of

justice provides a basis for determining constitutional essentials and the second principle

provides a basis for deciding matters of basic justice.”7 The basic liberties set out by the

first principle of justice as fairness are inalienable. After all, Freeman explains, “what

makes a liberty basic for Rawls is that it is an essential social condition for the adequate

development and full exercise of the two moral powers of moral personality over a

complete life.”8 None of the basic liberties can be treated as “absolute” or somehow

“more basic” than the others. Instead, tensions between them are to be decided so as to

maintain a “fully adequate basic scheme”---fully adequate, that is, in to maintaining the

conditions of free and equal citizenship.9 In calling this scheme “fully adequate”, Rawls

means that the maintenance of such a scheme of inalienable basis liberties is a necessary

condition to the realization of liberal justice, as set out by the master value above.

Crucially, for modern liberals such as Rawls, only people’s civil and political liberties are

to be treated as constitutional essentials. People’s economic liberties---for example, their

right to hold and make use of private productive property, their right to enter into

economic contracts----are not among the basic liberties. Rawls’s second principle, which

concerns matters of basic justice, mainly addresses questions of social and economic

inequality: including matters bearing on equal opportunity, the setting of the social

minimum, the specification of property rights, and the regulation of commerce. As

Freeman says, since the best way to address these matters is a subject of reasonable

disagreement, modern liberals assign these matters to be addressed by democratic

legislative processes.10 Economic decision-making power is to be placed in the hands of

elected officials.

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What of libertarianism? According to Freeman, “Libertarianism is a doctrine of self-

ownership. Absolute rights of property and freedom of contract are its most fundamental

liberties.”11 Because libertarianism treats economic liberties as the most fundamental

liberties (or, perhaps, as the only fundamental liberties), libertarianism rejects the

inalienability of people’s civil and political liberties. It would allow people who were

willing to alienate their own liberties, or those who sought to gain control over the

liberties of others, to enlist the aid of the state in the project. Thus, libertarianism would

require the state to enforce contracts by which people sold their votes, their right to speak

or to practice a religion of their choice, or even contracts by which people sold

themselves into slavery.12 But, from the modern liberal perspective, the development and

free exercise of these civil and political liberties are essential to people’s moral nature. A

state that does not protect those liberties does not preserve the conditions necessary to the

development of citizen’s moral powers.

Further, and as a consequence of the absolute institutional primacy that they assign to

economic rights, libertarianism does not allow taxation to support the provision of a

social minimum. [[get representative quotation from Spooner or others: taxation is

robbery, etc.]]. But for modern liberals such as Rawls, the public provision of a social

minimum is needed to guarantee the effective exercise of citizen’s basic liberties. People

need this minimum so that they might develop the moral capacities they have as citizens.

Freeman says, “Views such a libertarianism, or those classical liberal views which

entirely deny a social minimum, are unreasonable, Rawls contends, since a social

minimum is necessary to the adequate development and full exercise of the moral

powers, and to pursue a rational conception of the good.”13 In all these ways, then,

modern liberals argue that libertarianism falls short from the perspective of basic liberal

values. Indeed, Rawls suggests that, since libertarianism violates the liberal principle of

legitimacy, it should not even properly be counted as a liberal view at all.14 Freeman says

that libertarianism not only should not be counted as a liberal view, but is actually

strikingly like a view that liberalism historically defined itself against: the doctrine of

private political power that is feudalism.15

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However, constitutional capitalism is not libertarianism. Constitutional capitalism is a

distinctive interpretation of classical liberalism. Compared to libertarianism,

constitutional capitalism is more true to the nuance and complexity of the institutional

forms that thinkers in the classical liberal traditional have long advocated. Indeed,

constitutional capitalism is more similar institutionally to traditional forms of classical

liberalism precisely because constitutional capitalism is founded on a concern for social

justice.

Thus, constitutional capitalism affirms the modern liberal “master value” I mentioned

above. For constitutional capitalists, the primary role of democratic government is to

secure and maintain the social conditions necessary for realizing “a moral idea of persons

as free and equal self-governing agents who have an essential interest in maintaining their

freedom, equality and independence.”16 Constitutional capitalism affirms a distinction

between constitutional essentials (basic liberties) and matters of basic justice. That is,

constitutional capitalism asserts that social justice is best realized by means of an

institutional division of labor, with some aspects of justice realized by means of the

constitutional entrenchment of substantive values, and other aspects of justice to be

placed in the hands of democratically elected officials. Further—although it is no part of

constitutional capitalism----constitutional capitalists are free to join those modern liberals

who reject libertarianism as unreasonable, on the grounds that the libertarian claim that

economic liberties are absolute effectively requires that libertarianism treats basic civil

and political liberties as alienable.

However, unlike social democratic liberals, constitutional capitalists emphasize the

importance of economic freedom to the moral well being of citizens. In particular,

constitutional capitalists are liberals who assert that the economic liberties of citizens,

like their civil and political liberties, must be included in a fully adequate scheme of basic

liberties. Liberals have long argued that personal liberties such as freedom of speech may

be regulated or limited to protect to fully adequate scheme of basic liberties. So too,

according to constitutional capitalism, the basic economic liberties of citizens, such as the

right to amass private property or to enter into economic contracts, may properly be

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regulated and limited in order to maintain the other basic liberties. But with personal

speech so too with economic contracts, attempts by legislative coalitions to limit the

freedom of citizens must pass a high degree of judicial scrutiny. As a matter of

institutional design, constitutional capitalism affirms that economic liberties of citizens

should be constitutionally entrenched along with their civil and political liberties. Such

entrenchment, on the constitutional capitalist view, is necessary to securing and

maintaining the social conditions in which people can develop the moral powers they

have as free, equal and independent citizens.17

Modern liberals sometimes elide the libertarian and the classical liberal positions on this

vital point. For example, Freeman refers to “Rawls’s rejection of the libertarian and

classical liberal position that unrestricted economic freedoms are among the basic

liberties.”18 But the constitutional capitalist view I am proposing does not affirm

unrestricted economic freedoms. It affirms the economic freedoms of citizens as basic

and yet “restricted.” Economic liberties are not absolutes, nor are they in any sense “more

basic” than people’s civil and political liberties. Constitutional capitalism is a liberal view

that sees economic liberties as working along with the civil and political liberties as vital

components of a fully adequate scheme.

For this reason, constitutional capitalists can join the modern liberals who say that the

liberal state should be empowered to provide a social minimum funded by a system of

taxation. Constitutional capitalism gives no support to the view that taxation is always

theft. Further, constitutional capitalists recognize that there can be reasonable

disagreement about the proper shape of that social minimum (regarding both the type of

taxation system, and the type of delivery mechanism, for example). For that reason,

constitutional capitalists join the social democrats in affirming that institutional details

about that minimum should be left to be worked out at the legislative stage by

democratically elected officials. Unlike the social democrats, however, constitutional

capitalists assert that legislative proposals in pursuit of the social minimum must pass a

high degree of judicial scrutiny. Democratically dominant factions cannot be allowed to

impose schemes that violate the economic liberties of citizens. Such schemes would

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disrupt the fully adequate scheme of basic liberties, and thus eroding the conditions

necessary for the development and exercise of people’s moral powers.19

As Freeman correctly notes, an implication of the claim that economic liberties should be

treated as equally basic as citizens’ other personal and political liberties “is that it limits

considerably a liberal society’s ability to regulate the uses of property, economic

contracts, and business transactions and activities.”20 However, and equally, an

implication of the claim that economic liberties should not be treated as basic is that it

considerably expands the economic decision-making power that is placed in the hands of

democratically elected officials.21 Three decades of scholarship by the public choice

school of economics has alerted us to the dangers of such an approach when conducted

against the background of a broadly capitalist economy.22 One response to the

provocative findings of public choice economists is to ignore those findings.23 For

example, without necessarily taking any position regarding the plausibility of central

public choice theses (such as the theory of government failure), one might deny the

relevance of such empirical work to the problem of moral justification, and then attend to

public choice concerns no longer. This approach seems to me a form of philosophical

turtling.24 A more politically responsible approach, I believe, would be to think hard

about different levels of political argumentation and then seek to assess the claims of

public choice at the appropriate argumentative level. Constitutional capitalism, as we

shall see, seeks to take that latter approach.

Constitutional capitalism fully affirms the modern liberal insight that the worth of

citizen’s freedoms is importantly connected to their personal control of adequate material

and social resources. It also affirms the idea that material distributions are never really

“natural” but instead are always heavily conditioned by the society’s basic institutional

forms: in liberal democracies, citizens must take responsibility for predictable

distributions of goods because those citizens bear ultimate responsibility for the shape of

their society’s basic institutional forms. Constitutional capitalism affirms all these

important ideas.25 It simply notes that it is an empirical question as to which regime type,

constitutional capitalism or social democracy, is best suited to bring about and maintain

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the social conditions needed for people to develop the moral powers they have as free and

equal citizens. For this reason, the choice between (some version or other of) social

democracy and (some version or other of) constitutional capitalism is one that must be

made at the argumentative level where we consider questions of feasibility. At the level

of moral identification, where we ask which regime types “realize” the values of liberal

justice, no a priori choice can be made between constitutional capitalism and social

democracy.

To highlight the main features of this preliminary sketch: constitutional capitalists, unlike

libertarians, do not treat economic liberties as absolute or somehow more basic than civil

and political liberties. Constitutional capitalists are liberals who think economic liberties

should be included as part of the fully adequate scheme of basic liberties. Social

democrats are liberals who think that only personal and political liberties should be part

of the fully adequate scheme. As I just suggested, I believe that ultimately the choice

liberal citizens must make between constitutional capitalism and social democracy must

be made on empirical grounds of feasibility. To see why, though, it is vital to see that the

defense that I will be offering of constitutional capitalism is primarily a moral defense,

one conducted at the same high level of moral abstraction on which the best modern

liberal defenses of social democracy have been offered. To make sense of these ideas,

and to understand the power of constitutional capitalism, it is vital that we distinguish

between three levels of political argumentation: political philosophy, which is the level of

moral identification; political theory, which is the level of long term regime-type

advocacy; and public policy, the level of immediate political campaign. No sense can be

made of constitutional capitalism without understanding, and attending to, the

distinctions between these three levels of political argument. Let’s turn now to those

distinctions.

‘Utopophobia,’ Philosophilia and Political Responsibility26

The word “philosophy,” famously, is derived from the Greek words, philos, love, and

sophia, wisdom. Philosophy is the love of wisdom. Political philosophy, by extension,

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might be expected to denote a love of wisdom about political topics. Traditionally,

wisdom about politics has been understood to require a great breadth of understanding.

Anyone hoping to give advice, or offer evaluations, about how people ought to live

together politically would need to acquire and make use of a nuanced understanding of

many facets of the human social condition: history, economics, sociology, religious

studies, institutional theory, moral philosophy and more. One would need this breadth of

understanding because recommendations about politics are ordinarily understood to be

recommendations for people in our world, a world in which reality rarely conforms

precisely to theory on any single disciplinary dimension. Political wisdom might seem to

require that when we think about how our world ought to be institutionally, we think

about the practical consequences of our institutional recommendations. This would

require that political theorists attend not only to how things might possibly turn out. It

would require that they think about how things are likely to turn out as well.

For example, in considering how our society ought to be organized politically, we cannot

assume that people will always comply with the rules and the norms that guided the

writing of those rules. It would be foolish to recommend a particular set of political

institutions if our recommendation is based on the expectation that the individuals who

take up the positions in those institutions will always behave precisely as we think they

ought. Much experience suggests, and a growing body of theoretical literature confirms,

that political institutions often generate perverse incentives---incentives that,

unfortunately, lead people to act against the very norms theoretically attached to the roles

political institutions set out.27 Similarly, just because a regulation or law is intended to

have some particular effect on society, we cannot assume that that the regulation will

produce the desired effect (or that it, in producing a desired effect, that regulation will not

also produce a variety of unwanted effects as well).

So too, from a different perspective, we cannot assume that markets will always work

perfectly so that, for example, exchanges will be positive sum for all participants, or that

the principle of comparative advantage will produce immediate benefits to all. Again,

experience suggests, and theory confirms, that in the real world markets often do not

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work that way. Variations in social conditions, the character and behavior of particular

actors, as well as the specific rules governing any property rights regime, always

influence how close to, or how far from, actual markets will come to realizing the

expectations charted in our theoretical ideals.

Of course, in light of these real-world deviations from our theoretical ideals, we can

construct explanatory theories about why people, governments and markets do not

function in ways that correspond to our theoretical ideals. We can then build those

theories of “failure” into our original theory, making our theoretical models ever more

sophisticated and predictively powerful. But even then the complexity of social life gives

political reality an uncertainty or, if you like, a stubbornness that renders even our best

explanatory theories mere approximations of the way things really are in any actual

society at any given moment. In recommending any given political system over any

other, therefore, wisdom requires that one not merely consider how things might go when

if all conditions turn out to be favorable on all these dimensions. We must also consider

how things are likely to go, given the stubbornness and complexity of human social life.28

Indeed, when it comes to political topics, wisdom lies primarily in the skill of negotiating

the boundary between theoretical ideals and practical reality.29

Perhaps the most striking characteristic of academic theorizing in the wake of Rawls has

been the willingness of liberal theorists to separate the professional discipline of political

philosophy from the more civic ideal of political wisdom. Following Rawls, modern

liberals in particular have sought to separate out and focus intensively upon a single

dimension of political evaluation: the moral dimension. On this approach, the first task of

political philosophy is not to provide guidance for political action or reform. Rather, that

task is simply to identify principles of justice and sets of institutional regimes that might

realize those principles.30

How are we to go about this task of political identification? Rawls’s answer may surprise

us. For while Rawls’s topic is political, his approach to that topic is purely

philosophical—or at least, it is as purely philosophical as he can possibly make it. He

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does this by invoking a series of modeling assumptions, assumptions that require that we

abstract away from many of the most stubborn facts about human-living together. When

identifying principles of justice, Rawls asks us to evaluate principles on the assumption

that those principles will win the full motivational compliance of citizens. In identifying

principles of justice, we thus are asked to put aside the voluminous economic and social

scientific literature that seeks systematically to explain why some political systems face

greater compliance problems than others. When we turn to the task of identifying

institutional regime-types that “realize” the principles of justice, we are asked to evaluate

rival regimes in ways that are even more idealized. We are to discover which regime-

types would be just by imagining that the institutions of each regime function precisely

according to that regime’s announced intentions and ideals.31 Whether the regime is a

form of liberal socialism or laissez-faire capitalism, we are to imagine that the distinctive

problems that other non-philosophical disciplines tell us plague such systems have been

cured. Thus citizens and elected officials alike always behave as justice requires them to

behave; markets, if the candidate regime includes them, perform as perfectly as envisaged

in their textbook ideals; economic planners somehow have all the information they need

so that every regulation and law produces its desired effects and no unintended ones;

bureaucracies function without friction, waste or expressions of human greed.32 When

asking whether any given regime-type “realizes” liberal justice, we are to imagine that

the sun that shines on it is warm, the rains that fall, gentle.

Many theorists, including those who share Rawls’s enthusiasm for social democracy,

have reacted in a guarded way to the idealization and abstraction that characterizes recent

liberal thought. As William Connolly writes of recent work in the modern liberal

tradition, “the commitment to liberal principles is increasingly matched by the

disengagement from practical issues.”33 After a discussion of Ronald Dworkin’s work,

Kymlicka says, “It is difficult to say exactly what policies the theory reguires.”34

Regarding scholarship in the egalitarian liberal tradition generally, Kymlicka tells us:

“…the relationship between contemporary liberal theory and traditional liberal practice is

unclear. The two have become disengaged in a number of ways.”35

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If people sharing Rawls’s political ideology have reacted cautiously to this movement

toward idealized theorizing, theorists who are more optimistic about commercial society

have reacted with positive alarm. Perhaps this because advocates of economic liberty

sense that they are on strongest ground in their disputes with advocates of liberal

socialism and other idealized political forms when discussions focus on practical

questions about what actually works in the world, rather then on the questions of moral

intention that dominate at the level of ideal theory. [[trace roots of these ideological

tendencies: evolutionary rationalism of British liberalism, and resulting close connection

of that liberal branch to economic science; their concerns about the practical

consequences of historic attempts to implement idealized principles like the constructivist

ones of European “democratic” liberalism----Rousseau, the Terror, traces in later socialist

aspirations. Main point: classical liberals have been especially skeptical of the idealistic

tendencies of Continental liberalism.]]

We see this skepticism expressed concerning the idealized way modern liberals seek to

identify the requirements of justice. Thus, David Schmidtz: “The compliance problem is

not the second step. It is not something to set aside as a task for so-called nonideal theory,

as if the degree of compliance were an exogenous variable that could be dealt with

separately. The compliance problem is an integral part of the first step. When one

chooses a set of rules, one gets a particular compliance problem and a particular pattern

of compliance along with it. Therefore, we cannot begin to know whether instituting a

given set of rules will be to our mutual advantage unless we know how bad its associated

compliance problem will be.”36 [[quotation from David Gauthier Morals by Agreement,

who works within partial compliance theory]]. Similar concerns have been raised about

the idealization Rawls’ employs when evaluating candidate types of institutional regimes

[[get quotation from Jason Brennan “Rawls’s Paradox”, also footnote to Keith Hankins

manuscript]]. Geoff Brennan and Philip Petit also have emphasized the importance of

feasibility concerns when assessing institutions. Brennan and Pettit argue “that normative

theory needs to take compliance constraints seriously and that failure to do so is capable

in principle of undermining an entire normative enterprise.”37

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However, contemporary classical liberals, like the evolutionary rationalists before them,

can’t resist the call to identify the moral foundations of their view. To answer that call,

classical liberals need to engage in some process of abstraction like the one modern

liberals, following their continental forebears, have embraced. As a result of their

hesitancy on this issue, contemporary classical liberals find themselves working in a

methodological position that has become weak and increasingly awkward. Liberal

advocates of economic freedom have one toe dipped in the waters of political philosophy

and their foot rooted in more practical concerns about how things are likely to turn out.

My idea is to give classical liberalism a firm and deliberate push into the ice-cold waters

of ideal theory, and see if it can swim.38

I share the classical liberal conviction that the market-based institutions they advocate

look best when conversations turn to practical questions about how institutions actually

function in the world. I also share the conviction that questions about feasibility must be

assigned some important role within the normative enterprise. The important question is:

where within the normative enterprise do questions of feasibility belong, and where

within that enterprise do such questions not belong?

David Estlund has developed a striking defense of the methodological idealism that

characterizes recent thinking in the modern liberal tradition.39 Normative theory is about

how people should act. Therefore, Estlund explains, when identifying normative ideals it

is appropriate to put aside questions of how we think people will act. A normative

political theory would be utopian in the wrong sense if it required people to do

impossible things. Yet, a theory would be excessively realistic if it allowed practical

concerns about how people are likely to act to drag down the normative bar. Expanding

upon Rawls’s idea of “realistic utopianism”, Estlund argues that the proper domain of

normative thinking about politics lies between what he calls “complacent realism” and

“moral utopianism.”40 Estlund therefore directs our attention to what he calls “the non-

complacent, non-utopian range of normative political theories.”41 Provocatively, Estlund

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thinks that range includes even theories that he characterizes as examples of “hopeless

realism. ” These are political theories that people could possibly live up to, and yet the

probability of people actually doing so is very low and may even be zero. Estlund

vigorously defends such hopelessly realistic political theories. According to Estlund,

“The fact that people will not live up to [such theories] even though they could is a defect

of the people, not of the theory.”42 The project of identifying normative political

principles is the project of determining how things should turn out. To allow that project

to be constrained by worries about how things actually will turn out, Estlund suggests,

would be to fall victim to utopophobia.

Estlund is right to warn us against utopophobia. There is an aspect of normative thinking

about politics that, while recognizing the boundaries of the possible, properly asks us to

abstract away from questions about how things are likely to turn out. I would simply add

to Estlund’s warning a caution against yet another danger of political thinking, a danger

that I call philosophilia. If philosophy is the love of wisdom, philosophilia is the love of

philosophy itself, with or without wisdom. In the context of recent work in liberal theory,

philosophilia is an ardent attraction to idealized forms of political discourse. This ardor

for idealized thinking may blow smoke in our eyes when we turn from questions of moral

identification to even the most general questions of institutional evaluation---let alone to

questions about the normative evaluation of policy changes within actual liberal societies.

Methodological idealization obtains its power by gaining distance from the merely actual.

But the costs of identificatory idealization are paid in the coin of political relevance.

Correctly identifying a range of regime types that might ideally ‘realize’ liberal justice

might in itself tell us absolutely nothing about which of those candidate regimes the

citizens in any actual liberal society ought appropriately work toward at any given time.

Worse, even if we could somehow know which regime to work toward, ideal theory

would not obviously give us any way of knowing which the best institutional path to that

the instantiation of that just regime might be. Starting from a situation of injustice, there

may be many partially-just, and even some less-just, forms that might best lead a given

society to the moral promised land. At its worst, philosophilia can lure even the best

political thinkers into offering tendentious evaluations of policies and party platforms of

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existing liberal societies, evaluations that they have no business making as political

philosophers. While perhaps tempting for crudely ideological reasons, such evaluations

are completely unwarranted if presented as though they were the product of work done in

the domain of ideal theory analysis.43 Responsible thinking about politics, it seems to me,

requires that anyone who advocates methodological idealization also attend to the

problem of explaining how those “set aside” concerns about feasibility can be fit back

in.44

My argument for constitutional capitalism attempts to do just this. Indeed, my argument

turns primarily on distinction between two different levels of political argumentation:

political philosophy and political theory. To understand the moral I am making for

constitutional capitalism, it will be vital that we keep the distinction between these two

levels in mind.

By political philosophy, I mean a level of purely moral discourse about political

questions. This is the level at which one focuses narrowly on the task of identifying the

morally appropriate standard for the evaluation of a society’s basic institutions. The task

of political philosophy is to move from some very general ideas about the moral nature of

persons and society to a determinate set of principles of justice. Political philosophy also

includes the project of identifying a range of institutional regime-types that could in

principle bring about and sustain the social conditions in which those principles of justice

could be satisfied. Political philosophy identifies a conception of justice and a set of

regime-types that might possibly satisfy those principles. The conclusions reached at the

level of political philosophy need not be completely permanent or timeless.

Developments in human genetic engineering, or other very radical changes in technology

for example, might someday require a rethinking of even the very general moral ideas

upon which conclusions reached on this level are based. But political philosophy reaches

out in the direction of the permanent and the timeless.45 Findings here represent our best

philosophical attempt to identify the standards and institutional regimes of justice.46

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By political theory, by contrast, I mean a level not of moral identification but of regime

advocacy. This is the level of argument at which one says which broad type of regime

one thinks is most likely to satisfy the moral standard identified at the level of political

philosophy, in light of the economic, social, and historical conditions of some society (or

set of societies) viewed in a long term, or epochal way. Political theory begins by

attending to the principles of justice and the range of morally permissible candidate

regimes as identified at the level of political philosophy. Then, in light of a broad-gauged

evaluation of social conditions, one advocates one or another of those candidate regime-

types as being most likely to actually satisfy the requirements of justice. Thus, political

theory is the level at which feasibility concerns are brought in, but still only a very

general way. When we advocate one or another type of political regime---say, liberal

socialism or laissez-faire capitalism---as the appropriate goal for some particular society,

or set of societies---say, for the United States of America, or for the set of Western liberal

constitutional democracies---we are operating at the level of what I call political theory.

Note that this distinction between political philosophy and political theory allows for the

carving out of a third level of political argument, a level of what we might call public

policy. Public policy is the level at which, within the regime type adopted at the level of

political theory, and guided by the moral principles identified at the level of political

philosophy, one decides which particular laws, regulations and public initiatives one

ought to pursue. While political philosophy is the level of identification, and political

theory is the level of advocacy, public policy is the level of campaign. Public policy, to

be done responsibly, requires that one make recommendations (or offers normative

evaluations) of near term political questions, guided by the norms identified at the level

of political philosophy but in light of the full range of feasibility constraints described,

say, in the literatures of economics, sociology, history, institutional theory and more. For

example, this is the level at which we might offer normative evaluations of recent

political trends within actual societies, for example the policy “revolutions” led in

American and England by Ronald Reagan and Margaret Thatcher respectively, or Bill

Clinton’s declaration that “the era of big government is over.” Compared to political

philosophy, public policy is an enormously complex, multi-disciplinary task.47

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To fully exposit constitutional capitalism, one would need to work across all three of

these argumentative levels. Only then might one hope to be in position to discharge the

responsibility that most people think makes normative political thinking worth doing (and

funding) in the first place: the responsibility of giving normative guidance to citizens

seeking in good faith to navigate the obstacles to justice confronting them in their

societies.48 I have neither the space nor the competence fully to discharge that

responsibility in this book. Instead, my argument for constitutional capitalism shall run

mainly at the levels of political philosophy and political theory. Most people think of the

dispute between liberals in the Smith/Spencer/Hayek line and those in the

Greene/Dewey/Rawls line as having a fairly simple structure. On each side, the

traditional model tells us, we find a cluster of thinkers affirming (albeit sometimes for

very different reasons) a broadly common conception of liberal justice, a conception of

justice that justifies the respective broad regime type advocated by each school. On this

familiar view, for example, the dispute between modern liberal advocates of social

democracy and classical liberal advocates of commercial society is at base a dispute

about moral values, one that must be reconciled by specialists in the discipline of

philosophy. Allow me to suggest a very different way of understanding the structure of

disputes between rival liberal political regimes.

At the level of political philosophy, recall, we seek to identify a conception of liberal

justice and a set of candidate regime-types that might realize, in the ideal sense, that

conception of justice. For liberals, what conception of justice and what range of candidate

regimes should correctly be identified? I believe that the most morally attractive

conception of liberal justice is a conception much like the view Rawls calls justice as

fairness. [[jt: formulate this carefully: “Rawlsian” rather than “Rawls’s”: primacy to

basic liberties essential to development of moral personality, a list that must include

uncontroversially liberal liberties such as free speech/religion/political liberties; among

those, political liberties need special support (zero sum; imperatival need to avoid

domination by others in the political realm); also substantive conception of equality of

opportunity (something like fair equality of opportunity); also some principle securing

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the material/social bases needed to make liberties valuable at all (something like

Difference principle).

The second task of political philosophy is to identify regime-types that, in a more perfect

but still possible world, realize this liberal conception of justice. I believe that a strict

adherence to the constraints and motivational impulses of ideal theory reveals that at least

four regimes should be on this candidate list.49 The list includes the three regimes that I

described earlier as marking out the range of social democratic theories. Two of these,

liberal socialism and property-owning democracy, have been defended by Rawls; the

other, welfare-state capitalism, is widely associated with Ronald Dworkin. To these range

of social democratic views, I would like to add a third candidate regime. This is a laissez-

faire interpretation of liberalism that I call constitutional capitalism.

The various regimes of social democracy are widely associated with modern liberalism,

while laissez-faire regimes are often described as classical liberal. By the model I shall be

developing, though, there is no meaningful distinction to be made between “modern” and

classical” liberals when we are engaged in political discussions at the level of political

philosophy. At that level of moral identification, we are all simply liberals. We are

engaged in the common and nonpartisan task of identifying what justice requires and

what regime types might, under the most favorable imaginable but still possible

conditions, satisfy those requirements.

It is only when we move to the level of political theory that divisions between types of

liberals become meaningful. This is the level, recall, in which we begin bringing in

feasibility concerns. We begin discussions about which regime-type we think, in light of

empirical conditions of the society or societies in question, might be most likely to

actually bring about justice. On this approach, the distinction between “classical” liberals

and “modern” ones only is gets born when we turn to these questions of advocacy. I

suppose we could bundle advocates of liberal socialism, property-owning democracy and

welfare-state capitalism and refer to them as “modern liberals.” We might then refer to

constitutional capitalism as a “classical liberal” view and carry on our debates with these

19

(loaded) terms just as before. I have no deep objection to that way of proceeding. One

reason to retain those labels is that they are familiar. One reason to avoid them is that

they may encourage the moral-evolutionary bias of the myth of modern liberalism that I

described in Chapter One. So, I will sometimes use the terms “modern” and “classical”--

-as when I refer to constitutional capitalism as “an interpretation of classical liberalism.”

But one benefit of the schema I am proposing is that it allows us to leave behind those old

labels with no loss, and perhaps with some gain, of intellectual clarity.50

On the model I am exploring, the most significant rivalries among types of liberals are

only born at the level of political theory.51 This is the level at which, in light of broad

gauged empirical realities, one advocates some particular regime-type (or narrowed set of

candidate regime-types) for adoption by a society committed to liberal justice. I believe

that constitutional capitalism becomes especially attractive when considered at the level

of political theory. Compared to imaginary regime-types such as liberal socialism and

property-owning democracy, I shall argue that the institutions of constitutional capitalism

are far more likely to create and sustain across generations the social conditions in which

people can develop the capacities they have as free and equal citizens. Welfare-state

capitalism, I believe, fares somewhat better than the socialist or democratic regime-types:

in part this is because welfarist regimes share some features with constitutional

capitalism. But the institutions of the welfare state are significantly less likely to bring

about and sustain liberal justice than are those of constitutional capitalism. Anyone

concerned to achieve liberal justice in contemporary liberal societies, the United States of

America or the set of Western liberal constitutional democracies, ought therefore to

advocate constitutional capitalism.

Some readers, on assessing the empirical arguments I shall offer in favor of the

institutions of constitutional capitalism, may disagree with my conclusions. They may

come to believe that one of the social democratic institutional forms----welfare-state

liberalism, for example---might be more likely to bring their society to justice and so

ought to be advocated. I am certainly open to this possibility. I am acutely aware that I

lack the expertise in historical, economic, sociological, cultural and institutional theoretic

20

fields that would be needed for me to assert with any confidence that constitutional

capitalism is the regime that gives us our best chance at justice. By advocating

constitutional capitalism, however, I hope to encourage the extension of the range of

normative political discourse within the academy into the more heavily empirically

conditioned domain of normative discourse that I call political theory. Only by passing

through that level and onto the level of public policy could specialists in normative

political thought even begin to consider offering normative evaluations about the recent

political trends of and questions now facing their fellow liberal citizens.

The Challenge to Constitutional Capitalism

There is a significant obstacle facing any version of laissez-faire liberalism, however.

This challenge, which arises at the identificatory level that I call political philosophy, has

been presented most forcefully by Rawls himself. For Rawls, recall, ideal theory is an

intellectual device we use in order to identify which regimes satisfy justice as fairness

and which violate it, assuming that each regime is functioning well in light of its own

publically stated aims and values.52 In the real world, of course, a regime that passes this

ideal level test may fail to actually bring about the set of happy social conditions that

justice requires. Still, according to Rawls, at the level of ideal theory, “we assume that if

a regime does not aim at certain political values, and has no arrangements intended to

provide for them, then values will not be realized.”53 This two part test is the master

criterion for ideal theory level analysis of political regimes.

On these grounds, Rawls suggests that all versions of classical liberalism---what he calls

“laissez-faire capitalism” or “the system of natural liberty”---must be rejected as unjust.

According to Rawls, laissez-faire capitalism “secures only formal equality and rejects

both the fair value of the equal political liberties and fair equality of opportunity.” Rather

than being guided by a conception of social justice, such regimes simply pursue

economic efficiency and growth, perhaps constrained by “a rather low social

minimum.”54

21

I agree with Rawls that if a regime rejects some set of political principles, and if it has no

institutional arrangements intended to help it satisfy those principles, then that type must

be rejected in light of those values. I can also see why, given that test, Rawls thinks that

laissez-faire capitalism violates justice as fairness. After all, thinkers in the classical

liberal tradition loudly and (perhaps) unanimously claim to reject the very idea of social

or distributive justice.55 What’s more, while regime-types that Rawls personally favors

such as liberal socialism include a whole host of institutional features designed with the

explicit intention of delivering to citizens the various components of justice as fairness,

the constitutionally constrained institutional structures of commercial society might well

seem to promise far less to citizens in these areas.

However, I believe that constitutional capitalism can meet both parts of Rawls’s ideal

level challenge. Regarding the institutional challenge, it will almost certainly be true that

a well-functioning constitutional capitalist regime would allow significantly greater

material inequalities between citizens than would, say, a well-functioning property-

owning democracy. On the surface, the material inequalities tolerated by constitutional

capitalism might seem to make the ideal of the fair value of equal political liberty

unattainable under that type of regime. However, the question of how much material and

social equality citizens must experience if they are to experience fair political equality is

not independent of the regime type in which that value is being pursued. Property-owning

democracy, for example, places a great many matters that directly affect the material and

social well being of citizens onto the political agendas of elected bodies in their

societies.56 They do this in pursuit of realizing fair political equality. But this very

method makes citizens in that sort of regime constantly vulnerable to political domination

by others. Constitutional capitalist regimes, as we shall see, seek to secure fair political

equality by a very different strategy. By entrenching economic freedoms, they keep

issues that make citizens vulnerable off the political agenda itself. In this way, we might

say, constitutional capitalism seeks to realize fair political equality ex ante, while social

democratic regimes such as property-owning democracy must constantly work to secure

those values ex post. I believe that this same basic argument can be extended so as to

demonstrate that constitutional capitalism includes “arrangements” intended to provide

22

citizens with all the values of justice as fairness----fair political equality, fair equality of

opportunity, and the difference principle. This does not mean that constitutional capitalist

regimes will actually deliver all those goods---any more than the good intentions of

liberal socialist regimes mean that people who adopted such institutions would

experience them. But when we compare like to like, ideal to ideal, constitutional

capitalism looks at least as attractive as any of the social democratic regimes. And when

we start looking more closely at the political theoretic question of how such regimes are

actually likely to function in our world, constitutional capitalism starts to look more

attractive than any of those others---at least from the perspective of anyone whose

foundational commitment is to justice as fairness (rather, than, say, to the institutions of

democratic socialism).

However, classical liberals like to tell us, they reject justice as fairness. Indeed, they

loudly insist they reject the very idea of social or distributive justice. I believe that this is

a significant error on the part of classical liberals. Let’s turn our attention now to the

classical liberals and the special problems that they face. Over the next two chapters, I’m

going to invite classical liberals to take a good long session on the psychiatrist’s couch.

Classical liberals need this special attention if they are to have any hope of accepting

constitutional capitalism. For in terms of their own basic understanding of themselves,

who they really are and who they really want to be, classical liberals have a whole lot of

work to do.

ENDNOTES:

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1 Citation to Nagel article “Libertarianism Without Foundations.” 2 Thus constitutional capitalism provides a rationale for understanding even the fine details about the classical liberal tradition, such as the fact---baffling to libertarians---that while most classical liberals (such as Smith and Hayek) advocated tax-funded social programs of some kinds, other pre-Nozickian classical liberal thinkers (such as Mises) rejected such programs almost entirely. Indeed, constitutional capitalism explains how this disgreement can be understood as a reasonable difference of opinions about the empirical operation of institutions, rather than as revealing some grave moral defect or some piece of conceptual confusion on one side or the other. 3 Constitutional capitalism accomplishes this by using insights of the evolutionary approach to solve problems of institutional design while using insights of the constructivist approach to solve problems of moral justification. In this way, constitutional capitalism seeks to avoid the weaknesses characteristic of each of those two traditionally rival views. The weakness of evolutionary rationalism lies in providing secure moral foundations; that of constructivist rationalism lies in addressing questions of feasibility. 4 “Illiberal Libertarians: Why Libertarianism is Not a Liberal View” [henceforth, “IL”] P&PA, 30/2 (Spring 2001), 105-151. See also Freeman’s Rawls (Routledge, 2007) (jt: specify page numbers using research packet labeled “Critiques of Libertarianism”). 5 Freeman, Rawls (Routledge, 2007), 51. 6 By “realize” here, I do not necessarily mean actually bring about. Instead, a regime “realizes” certain values when its institutions are crafted to embody that regime’s aspirations. So institutional realization, in this sense, is a matter of moral evaluation rather than of practical feasibility. 7 Freeman Rawls, 394. 8 Rawls, 55, emphasis in Freeman. (Freeman cites Political Liberalism p. 293.) 9 [jt: get citation to Rawls’s earliest use of the phrase “fully adequate basic scheme”..]. 10 Freeman writes: “ Rawls says that since questions of social and economic inequality are ‘open to wide differences of reasonable opinion’ [PL, 229] and it is often difficult to determine if social and economic institutions meet requirements of distributive justice, it is advisable that principles of justice regulating economic justice not be included among constitutional essentials and made part of the political constitution. Questions of social and economic inequality…are best left to ordinary democratic legislative determination and should not rise to the level of a constitutional dispute subject to judicial review.” Freeman continues: “By contrast, a question of whether the basic liberties are being denied ‘is more or less visible on the face of the constitutional arrangements and how these can be seen to work in practice’ [PL, 229]; it is therefore appropriate that disputes over the denial of basic liberties be constitutional issues which may be subject to judicial review” (Rawls, 394). 11 Rawls, 52. 12 [JT: get citations to libertarian literature on all these points. Also citations to Freeman’s own formulations in “IL”.] 13 Rawls, 395. 14 Freeman, Rawls at 395. [[get original and earliest citation in Rawls]].

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15 [[JT, select best quotation from Freeman’s “IL”, esp on pages 147-151]]. 16 Freeman, Rawls, 51. 17 Readers for the Brown workshop: I am especially eager to develop this part of my argument. Any suggestions or help would be much appreciated. 18 Freeman, Rawls, 57 (emphasis mine). Also, “Unregulated economic liberties then render practically impossible many persons’ adequate development of their moral powers, and therewith freedom and equality and their having fair opportunities to pursue a reasonable conception of the good. This is the underlying message in Rawls’s explicit rejection of basic economic liberties” 58 (emphasis mine). 19 JT: note that you have a couple good written paragraphs to fill in the rationale for the constit cap view of economic liberty—either to be plugged in here or later in this chapter, when outlining the empirical dispute about whether “government failure” and democratic corruption or market failure was a greater danger, from viewed from the epochal, advocacy level of political theory. Good stuff in margins re public choice dangers to political autonomy if economic decision-making power is placed in hands of elected officials, ---partly explains why classical libs see internal connections between economic liberties and civl and political ones---entwined..... [see document marked “Freeman/Rawls Critique… workshop of 6 June ‘08]. 20 Freeman, Rawls, 58. [[JT: I’m not certain of Freeman’s meaning: sometimes Sam describes libertarianism as asserting that economic liberties are absolutes or more basic than the other liberties; other places, as in the passage just quoted, he describes libertarianism as asserting the economic freedoms are equally basic with those other liberties. These seem to me very different claims (for example, the former might allow people selling themselves into slavery but the latter presumably would not). But Freeman seems to treat them as equivalent. I don’t understand… 21 OR MORE PRECISELY : However, and equally, an implication of the claim that economic liberties should not be treated as basic is that it immediately places democratically elected officials in a position in which they must craft laws and regulations that have a decisive effect on the prospects of factions, groups and individuals who must compete with each other on the specific terms those officials choose to enact. 22 By “capitalist” here I simply refer to regimes that allow for the private ownership of productive property. Welfare-state liberalism and property-owning democracy are usually described as capitalist regimes in this sense. Such regimes have been been a primary focus of public choice analyses. [there is an enormous literature here. Perhaps cite only the introductory text by Gordon Tullock Government Failure. Then give fuller citations in my chapt 6 discussion of these issues?] 23 [[jt: redraft this sentence: as written it borrows from locution of a sentence that Jay Brennan wrote in an early draft of what became “Rawls’s Paradox.”]] 24 [[jt: need to clean this up: a person who “turtles” can still be responsible to philosophy---indeed, responsibility to philosophy often may positively require such turtling. So I am referring here to a broader form of responsibility, one that asks us to connect 1) our roles as philosophers of liberalism to 2) our roles as scholars to whom people in liberal societies look for normative guidance as they seek to navigate the particular complexities of their social worlds.]]

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25 Advocates of social democracy sometimes suggest that the simple observation about the “non-naturalness” of social distributions somehow constitutes a critique of the classical liberal advocacy of limited government. [my bizarre conversation with Josh Cohen to this effect; unfortunate quotations to that effect by Cass Sunstein in The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever---refers to “the (ludicrous) idea that freedom comes from an absence of government”, and suggests that such an idea supports classical liberal jurisprudence, which he describes as “confused, self-serving, and even incoherent thinking” p. 16,also at 4, and much more of this ilk---all of which Sunstein leaves in even though he later correctly quotes Hayek as denying that classical liberalism relies on any such claim of “naturalness”; also, similarly unfortunate quotations from that Stephen Holmes book—also perhaps reference comment by Holmes in his preface about how he developed his argument while taking morning walks with Sunstein. If they were seriously interested in gaining a sympathetic understanding of the classical liberal rationale, perhaps they should have invited Richard Epstein along??]. 26 “Utopophobia” is a term coined by David Estlund. For discussion, citations (and for an explanation of that spelling!), see below. 27 Public choice. For a good intro to these topics, see Gordon Tullock Government Failure: A Primer on Public Choice….. 28 Still, however complex and nuanced one’s theory, when making evaluations or recommendation one must always consider the likelihood of realizing ones ideal in probabilistic terms. 29 Most thinkers in the liberal tradition have accepted this broad based approach to political theorizing. John Stuart Mill’s defense of legislative liberalism, for example, includes (nuanced discussion of practical concerns such as..or how various policies for the poor might tend to affect population levels. So too, when Green advocates x, his carefully considers whether….[practical effects of policies]. and John Dewey. We see this same broad based understanding of the responsibilitie of political theorists in the writings of thinkers on the constitutional liberal side. Hayek develops an account of market processes that makes him optimistic that market-based society can best provide for the needs of citizens, but he is also concerned about what happens when markets do not work as ideally imagined and so builds an advocacy of a state-based safety net into his theory. Mises/spencer/ unintended consequences…. 30 I am indepted to Carlos Ormachea for first focusing my attention on this idea of identification, and especially, to David Estlund for several illuminating discussions of this idea. [[In my own opinion: If Rawlsian liberalism deserves to be called “high liberalism”, as Samuel Freeman suggests, I believe the grounds to justify such a label should be found here in this methodological development (rather than in any substantive proposal about justice developed by Rawls). ]] 31 Rawls writes, “The problem here is that the limits of the possible are not given by the actual, for we can to a greater or lesser extent change political and social institutions and much else.” He continues, “Hence we have to rely on conjecture and speculation, arguing

26

as best we can that the social world we envision is feasible and might actually exist, if not now then at some future time under happier circumstances.” Law of Peoples, p. 12. 32 [[jt: this is a loose description. Tighten it up exegetically via Rawls’s exact listing of his assumptions in part IV of Justice as Fairness.]] 33 quoted in Kymlicka Intro to Pol: check original for surrounding text, and get citation. 34 Kymlicka, Introduction to… p.86. Kymlicka, however, is not shy about telling us what institutions he thinks modern liberal justice requires: “While it is difficult to know what Dworkin’s theory will mean in practice, it seems certain that liberalism’s institutional commitments have not kept pace with its theoretical commitments.” Kymlicka appears to be offering an evaluation of actual liberal societies but does not say why he thinks this particular evaluation is appropriate. Interestingly, he does not seem concerned that any of his readership might be skeptical of his evaluation. Indeed, again without explanation, Kymlicka continues: “Quite radical governmental policies might be required to eliminate those entrenched hierarchies---e.g. nationalizing wealth, affirmative action, worker self-ownership, payment to homemakers, public health care, free university education, etc.” 86. 35 Kymlicka 89. 36 Rational Choice and Moral Agency: (183). At a workshop on this manuscript at the University of Arizona, Kevin Vallier suggested to me that Schmidtz’s resistance to ideal theorizing was a result of Schmidtz’s broadly consequentialist approach to questions of political morality. After the workshop, Vallier sent me an electronic message on this topic. In that message, Vallier offered the following suggestion: “If you’re a deontologist who believes in a kind of choice situation to fix the content of justice, you’ll have to use levels and ideal theory – if you don’t, you can’t get a determinate choice scenario. But not if you’re a consequentialist.” I do not agree with Vallier on this point, but I found his suggestion interesting and fecund. 37 P. 260. Brennan/Pettit emphasize the importance of attending to incentives-compatibility concerns when assessing institutions. [[ BUT, JT: in places, they could be read a simply reminding us that, after the identificatory task, when it comes to the very different project of making institutional recommendations for some actual society, we should consider compliance issues. Their thesis seems ambiguous on the central point. Not sure how to handle this exegetically.]] 38 Or something like: My idea is to gather up some of the best work done in the classical liberal tradition, push it out into the cold deep waters of ideal theory, and see what bits of are able to float. From those materials, I will begin to build constitutional capitalism. 39 “Utopophobia” draft of 10/1/07, some parts of which Estlund notes are drawn from his book Democratic Authority: A Philosophical Framework. Get original citations to that book, or to “Utopophobia” ms., as appropriate. 40 According to Rawls, “…political philosophy is realistically utopian when it extends what are ordinarily thought to be the limits of practical political possibility and, in doing so, reconciles us to our political and social condition” (Law of Peoples, 11). 41 “Utopophobia”, p.2. 42 p. 3. Acccording to Estlund, “There is no defect in a hopeless realistic normative theory, and so non that hopeful theories avoid to their advantage. Things are better in one way, of course, if the best theory turns out to be hopeful (non-hopeless) rather than

27

hopeless. We should be sad if people will not live up to appropriate standards, and so we are spared this sadness if the best theory is not hopeless. But this consideration is not a reason for choosing a less hopeless theory. That would simply be to adopt [sic] different, more easily satisfied moral standards simply for the reason that they are more likely to be satisfied.” 6. 43 One of the most egregious examples is to be found, unfortunately, on the back cover of Rawls’s Justice as Fairness: A Restatement. There, readers are told: “Rawls is well aware that since the publication of A Theory of Justice in 1971, American society has moved farther away from the idea of justice as fairness.” The book, which is a carefully crafted project of moral identification, gives us not a hint of how Rawls (or anybody else) could possibly reach such a conclusion. Just as bad is when followers of Rawls offer politically divisive comparisons between ideal regime types and actual societies they wish to see transformed in ways more to their own ideological liking. For example, Krouse and McPherson: “By comparison with either ideal property-owning democracy or ideal democratic socialism, American society is deeply unjust” (103). Rawls, while not mentioning America by name, claims that existing property regimes are “riddled with grave injustices” (TJ 86). Further, it is interesting in light of Rawls’s sympathy to socialism that he takes pains to remind us, again without mentioning any names, that: “Because there exists an ideal property-owning system that would be just [the mixed socialist/capitalist regime that Rawls calls property-owning democracy] does not imply that historical forms are just or even tolerable” (TJ 274). Technically, I believe, the two latter claims by Rawls are unassailable. But, equally clearly, these claims are tendentious. They work to reinforce the idea that the idea that policy divisions within America, for example, reflect irreconcilable moral divisions. On this view, the platform of the Republican Party works to make America more of a laissez-faire regime, while that of the Democratic Party works to make America enact welfare-state measures, perhaps understood as steps towards eventually transforming America into a property-owning democracy. By bolstering the suggestion that the Democratic Party is the party of justice, while the ideals of the Republican party are unjust, such comments by leading academics encourage a pinched and ungenerous view about the range of “the loyal opposition” within liberal democratic societies. This, unfortunately, will be part of Rawls’s legacy too. 44 Just to be clear, I am not suggesting that Rawls or Estlund deny any of this. They do not. After explaining why he puts aside a variety of feasibility questions in order to evaluate institutions on the level of ideal theory, Rawls adds: “This recognizes that the other questions still have to be faced” (JasF, 137). Estlund says: “There is a place for non-hopeless theory, but it is not somehow privileged. Non-hopeless theory is what we want when we want to know what we should do, in practice, given what people and institutions are actually likely to do. It is obviously an important inquiry.” While Estlund refers to realistically utopian theories as “aspirational,” he describes feasibility-oriented, non-hopeless theories as “concessive” (“Utopophobia”, 6-7). I find Estlund’s selection of these terms instructive. I hope to return to this issue later in this book. 45 Citation to Fukyuma, “Last Man in a Bottle” article.

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46 [[JT: from perspective of what I am calling political philosophy, are we identifying standards of LIBERAL justice or of HUMAN justice?? Not sure, but am sure that I don’t want to run down any rabbit trails about that right now….]] 47 [[as I refine/elucidate these distinctions, some texts I need to study are: Bruce Ackerman, “What is Neutral about Neutrality?” Ethics, 93/2 January 1983, pp. 372-390 (esp section “II. Possible Worlds”); G.A. Cohen “Facts and Principles” P&PA, 31/3 (2003); and David Miller “Political Philosophy for Earthlings” (working draft of February 29, 2008). 48 I am not saying that there can be no other reasons to engage in normative thinking about politics. A person might engage in that work for purely self-centered reasons, for example because she personally finds it fun. Or, perhaps differently, a person might engage in it because she thinks it is intrinsically valuable. If one finds normative political knowledge of the sort obtained at the level of political philosophy intrinsically valuable, however, then the sort of normative political knowledge that might be obtained at the level of public policy looks like it would be instrinsically valuable for many of the same reasons. 49 Regime-types defined at this high level of abstraction constantly threaten to overlap and share near-core characteristics with each other. In saying that there are at least four candidate regime types, I do not mean to be underestimating this problem of regime-type differentiation. I am working roughly. 50 I used to spend a lot of time thinking about appropriate pairs of labels to substitute for so-called “modern” versus so-called “classical” forms of liberalism. Among the pairs I considered were: democratic vs. capitalistic; substantive vs. formal; constructivist vs. evolutionary; legislative vs. constitutional; regulatory vs. market-based; and even high vs. low. I’m glad that I don’t think about that anymore. 51 [[Brown readers: big point: put this way, it sound as though I am saying that there is no interesting disagreement among good liberals at the level of identifying principles of justice. But there are many moral disputes among liberals about those identificatory questions (Gerry Gaus and Tom Christiano both pushed me on this at Arizona, though from opposite directions). Need to think through what I are trying to do here. One way: admit disputes but carefully sketch out a conception of social justice on which different liberal philosophers, perhaps for their own sets of reasons, can converge. Then say that, for them, the interesting disputes between them arise at the political theoretical level of political theory?? Lots of complicated problems that I might go after here. What the cleanest way to get through this and keep my argument for constitutional capitalism on track? Any suggestions here would be much appreciated.]] 52 [[jt note: exegetically, this is not quite right: he’s engaging in a reflective equilibrium test…. Don’t this makes any difference to me, but need to sharpen this so its exegetically pristine….]] 53 JasF, 137. 54 JasF, 137 (check this cite, get other similar from TJ, elsewhere). 55 I am speaking loosely for now. Nozick, for example, might be said to accept the idea of “distributive justice” at least in the limited sense that distributions that arise from just historical processes can be said to be just distributions. I shall say much more about these ideas shortly.

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56 The details of those middle class savings incentives programs, for example, must be hammered out and the details matter greatly to the life prospects of different groups of citizens. Ditto those “steeply progressive” schedules for gift and inheritance taxes. Who sets the rates? By what process are the details of exemptions to be worked out? Etc., Etc., Etc.