Forget about venerating the fake Constitution taught in elite law schools, and remember to venerate the Constitution of the founders’ philosophy.
No American writer over the past fifty years has done greater harm to the study of political philosophy, to jurisprudence, or to the very foundations of our Constitutional regime than John Rawls. While some details of his theory are ably criticized by Professor Corey, the real problem goes far deeper, in the way that Rawls conceives his task of “moral theory.” Simply put, in disregard of the Constitutional order that already exists in the United States, and its foundation in the thought of comprehensive liberal thinkers and statesmen like Locke, Montesquieu, and the American Founders, Rawls writes as if the very fact that people disagree about the dictates of justice—a phenomenon characteristic of political life under any non-despotic political regime—is a problem to be “solved” by getting everyone to agree on a “theory” concocted by one philosophy professor or another. Once this premise is accepted, it matters less whether the theory in question is a redistributive one like Rawls’s or a libertarian one like Robert Nozick’s. The fundamental problem with Rawls’s approach, as critics like Benjamin Barber and Seyla Benhabib have observed, is that it attempts to do away with politics.
Contrary to Corey, and despite the bitter controversies that have roiled our politics over the past decade, most Americans have never believed that “politics is war.” While their intentions may be no less violent, consider how far movements like Antifa and the Proud Boys are from winning the sort of popular support that enabled the large-sale warfare waged on the streets of Weimar Germany—or those of Thucydides’ Corcyra.
Rather, long before Rawls came up with his notion of “overlapping consensus,” nearly all Americans have held to a Constitutional consensus that enabled power to be transferred peacefully from one party to another—a phenomenon previously unprecedented outside of 18th-century England. With the exception of 1860 (and perhaps of partisan extremists following the elections of 2016 and 2020), the vast majority have accepted that, even when their preferred party loses an election—meaning that the policies government pursues on everything from taxes to defense to regulation to crime to judicial appointments are not the ones they most favored—they will continue to enjoy a reasonable security of life, liberty, and property, thanks to our Constitutional order.
This consensus has been documented by writers ranging from Tocqueville—see his discussion of “small” vs. “great” parties—to historians like Louis Hartz and Daniel Boorstin. If anything were to make our politics more warlike, it would be a text like A Theory of Justice which tells people that if their vision of justice or the good life differs from the author’s, their aspirations have “no value.” (Rawls uses that phrase to connote “conceptions of the good” that violate what he maintains are the very “wide limits” that his principles impose on “the sort of persons that men want to be.” For instance, those whose views of the good society entail setting legal limits to “religious and sexual practices” that seem “shameful or degrading” would automatically have their views ruled out of the political arena. Certainly, judicial rulings that read policies like gay marriage and transgender rights into our Constitution and laws, following Rawls’s strategy of ignoring the electoral will, have tended to ignite popular passions to an unhealthy degree, generating what is widely called a “culture war.”)
Freedom and Community
I believe there is far less to Rawls’s theory, in either its original or revised versions, than Corey maintains. Contrary to Corey, we never needed Rawls to tell us that a liberal regime must guarantee individual freedom, equality before the law, and “reasonable pluralism.” (See, on the last, Federalist 10.) Nor do we have “much to learn from Rawls” to the effect that a diverse, liberal nation like ours cannot at the same time be a “community” based on a set of shared “moral purposes.” Our need for a broadly shared, albeit limited, morality, has been addressed at length by such liberal scholars as William Galston and Peter Berkowitz. As Madison observed in Federalist 55, a republican government like ours presupposes, more than any other form, a high degree of moral virtue. (Think of such virtues as patriotism, courage, tolerance, compassion, moderation, honesty, industry, thrift, and devotion to family.) But we hardly needed Rawls to explain that our country will never be “a polity like Calvin’s Geneva”!
By Rawls’s time, of course, Americans’ public standards of moral behavior had become considerably less restrictive than in the past—thanks to innovations like no-fault divorce, the legalization of abortion and pornography, and a judicial mandate of strict governmental neutrality between religion and atheism. These developments certainly harmonize with Rawls’s morally libertarian intent. (At the time of this writing, the Biden administration had just eliminated the ban on admitting transgendered individuals to the military, with no consideration having been given to the effect on unit cohesion, while the New York State legislature is contemplating a proposal to legalize streetwalking.)
But how could the large majority of Americans have been induced to endure such sacrifices as they did for their country in conflicts like World War II without the sort of fellow feeling that Aristotle (Politics III.9) deems essential for a political community? Consider the peroration of Lincoln’s First Inaugural Address, appealing to just such sentiments of brotherhood in an effort to keep the Union from falling apart. And as to the effects on our national well-being of the sort of libertarian sexual morality that Rawls and his frenemy Nozick ordained as a mandate of justice, consult the writings of informed observers like Myron Magnet and Mary Eberstadt—or else, as Christopher Wren’s epitaph ordains, just look around you.
What Corey means by saying that politics should be “non-purposive to the greatest extent possible” is beyond me, as it would have been to the authors of the Declaration of Independence. Just as it is natural to all human beings to pursue particular purposes in their lives, it is inevitable that in forming and seeking to preserve political communities, they will expect the government to enact policies that they think (correctly or not) will benefit them, and will seek to persuade their fellow citizens to favor those policies as well. As Aristotle puts it in his Politics, while human beings initially form cities for the sake of life, those cities continue in existence as means to living well.
Rawls’s Hostility to Economic Freedom
Turning to the specifics of Rawls’s “two principles of justice,” Corey rightly criticizes the first principle, ordaining the “greatest equal liberty” for all, and assigning it “priority” over the second principle (which legitimizes inequalities in social and economic goods so long as they maximize the well-being of the “least advantaged”) for its abstractness. In fact, Rawls’s mandate that “liberty can be restricted only for the sake of liberty” is without substantive meaning at all: every law restricts people’s liberty to do something or other! Rawls’s consignment of economic liberties to his second principle—as if the right to earn a living in a trade of one’s choosing, or to have one’s property secured against theft or lawless governmental confiscation, were less vital than freedom of speech, the press, or religion—was perfectly arbitrary, a reflection of the Progressive liberalism of his time and milieu, having been given judicial imprimatur by the Supreme Court’s “preferred position” doctrine in the 1930’s.
Contrary to Corey, Rawls does not literally mandate governmental redistribution of property, in the sense of its direct seizure. Instead, he advocated such conventional liberal policies as steeply progressive income and estate taxes. Yet, as classical liberal and libertarian writers like John Tomasi have pointed out (and as Corey correctly notes), there is no reason to assume that the economic well-being of the “least advantaged” would not be more likely to be maximized by a system that allows and encourages the most talented and industrious members of society to earn high rewards, rather than through redistributive taxation, since in so doing they would be elevating the lot of their poorest fellow citizens as well. This, of course, was John Locke’s point in Chapter 5 of his Second Treatise, “Of Property”: under a regime of economic freedom with secure property rights, a day-laborer in England is better fed, clothed, and housed than the wealthiest of Indian chiefs.
But there is a deeper motive underlying Rawls’s difference principle than solicitude for the welfare of the poor. In Part Three of Theory, he enunciates a remarkable doctrine of “excusable envy”—in violation of every one of the great religious and philosophical traditions—according to which it is “rational” for those lower down the economic scale to feel jealous of those richer than they are, in case the inequalities between them exceed certain (unspecified) limits. It is at this point that we discover the underlying if unacknowledged connection between Rawls’s doctrine and that of Karl Marx, perhaps inspiring the title of a recent study by William Edmundson, John Rawls: Reticent Socialist. So far as I know, the only precedent for Rawls’s difference principle is Marx’s and Engels’s mockery of their so-called “utopian” socialist rivals, in Part III of the Communist Manifesto, on the ground that they sought “to improve the condition of every member of society,” rather than benefit only the oppressed proletarians.
Just as there was no room in the Marxian scheme for those who found the promised proletarian dictatorship (to be administered by “Communists” like Marx and Engels themselves) detrimental to their well-being, Rawls tells readers who find his scheme antithetical to their good that “their nature is their misfortune.” While Rawls was no violent revolutionary, he, like Marx and Engels, aimed to promote resentment among the different classes, rather than serve the common good. (He offered only the lame excuse that given the need to operationalize the term “common good,” it would be easiest, given the “ethos” of a modern democratic society, to identify the common good with that of the least advantaged. That ethos sounded suspiciously like the scuttlebutt in the Harvard Faculty Club.)
In this light, it is crucial to note that Rawls did not in the end prioritize political liberty at all, contrary to his claims. He expressed a studied agnosticism as to whether his principles tended to favor a free-market economy over a socialist one, oblivious to the empirical association between the latter and the denial of political freedom. He evinced no awareness that a political regime that makes everyone an employee of the state deprives them of the independence that would enable them to criticize the government—or even publicly deviate from currently reigning political fashions. (Consider today’s “cancel culture.”) Even in his earlier writings, Rawls allowed that the priority of liberty could justifiably be suspended if such suspension proved necessary to advance the “economic and social” condition of the poor—thus sanctioning the alibi given by every Marxist despotism for the denial of freedom and the rule of law, even though the denial served only to enhance the despots’ wealth and power.
In the 1996 introduction to Political Liberalism, Rawls actually endorsed the complaint of “Hegel, Marxist, and socialist writers” that the liberties guaranteed by the Declaration of Independence, taken by themselves, are “purely formal” and amount at best to “an impoverished form of liberalism.” Rather than allow the degree of economic regulation or level of taxation in a free society to be negotiated through the political process, taking account of varying circumstances and competing partisan demands, Rawls insisted that his own theory be substituted for the good old one embodied in the documents that Americans inherited from the patriots of 1776, 1787, and 1865, ideally putting political dispute to an end.
“Moral Theory” Versus Political Philosophy and Liberal Statesmanship
Ever since Theory was first published, it has served as a model for professors of political or moral “theory” or jurisprudence to generate their own abstract, utopian versions of a just society, impervious to political and economic realities. And it has proved especially inspirational to judges, convinced (like Rawls’s contemporary and admirer, law professor Ronald Dworkin) that it was their function to impose their idiosyncratic “moral” beliefs—regarding such matters as gay marriage, racial preferences, transgenderism, or “welfare rights”—onto the nation, in defiance of the popular will as well as the Constitutional text. Rawls’s teaching has served only to erode the true foundations of political freedom and of conventional, “bourgeois” morality.
John Rawls, compared by his admirers to the Hebrew prophets or even to God (the latter by his Harvard colleague Michael Sandel) was no saint. Those who wish truly to promote justice and liberty should abandon “moral theory” and return to the study of classic texts of political philosophy as well as the writings of the greatest American statesmen, all of whose reflections involved the serious, open-minded consideration of alternative political claims, and grounded their accounts of justice in an understanding of human nature. Above all, unlike Rawls, they respected the principle of government by the consent of the governed.