Seeking Justice in a Factional Nation

We live in troubled times. Our nation has become overly politicized and polarized. Within the conservative and progressive camps we see increased fracturing: on the left, competing “identities” whose only political language seems to be one of victimhood and oppression; on the right, new brands of conservatism and reaction such as national conservatism and integralism that tend towards an authoritarian state. Our welfare system breeds cultures of dependency even as its costs soar to levels that cannot possibly be sustained. Our borders are not well maintained; our most fundamental freedoms are increasingly under attack; our educational institutions are disconnected from reality, and our political discourse is odious.

Some observers want to argue that this is simply the way American politics always is—that factions are nothing new, and that John Rawls’s theorizing is an attempt not to reform but to eliminate politics. But the character of our politics today is not normal, and the reason is not far to seek. Because government at the national level has increased so dramatically in scope, and because it now insinuates itself into nearly every aspect of our lives, the stakes have never been higher. Our elections are contentious and increasingly contested because no one can afford to lose control of the colossal power that is up for grabs. As a result, our political culture has turned increasingly warlike. We view our political opponents as enemies to be defeated, a la Carl Schmitt, rather than as fellow citizens with whom to reason and make compromises.

One of the fiercest conflicts in our present political culture concerns the meaning of justice. “Social justice,” “redistributive justice,” and “equity” vie for dominance over more traditional notions of justice grounded in reciprocal rights and duties and commonsense notions of merit.

I do not blame John Rawls for wondering out loud if we might somehow reach an agreement about our most basic notions of justice so that we could then have a common touchstone for political deliberation. As I said in the opening essay in this symposium, “On the Legacy of A Theory of Justice,” I think Rawls ultimately failed, although he was forward-looking in recognizing that our political culture might not survive its ordeal with radical pluralism.

Some political theorists argue that pluralism is nothing new and point to Madison’s discussion of factions in Federalist 10 as evidence. They are right that factions are nothing new, but they forget that Madison’s plan was to neutralize them in national politics by pitting them against each other. His theory was that by increasing the number and variety of factions and encouraging them to contend for power they would effectively cancel each other out, allowing the common good to rise phoenix-like from the ashes.

But Madison’s faction theory never worked, and he acknowledged as muchduring the Washington administration when he saw how effectively Alexander Hamilton could implement his faction’s plan of national industrialization. Contrary to Madison’s hopes, America has never been able to prevent factions from rising to national dominance. What we have witnessed instead is a history of alternating factional rule, not faction-free government for the common good.

With the increased scope of national government factional struggle has become a real threat to the nation. We are at or near a point where the results of democratic elections are not honored. What can we do to avoid the breakup of our nation?

Though John Rawls was an important political theorist, he did not solve the problems posed by radical pluralism. Neither did he cause them, as has sometimes been hinted at in this symposium. But he did recognize that intense factionalism (or pluralism) poses problems, and his work was an attempt to grapple with this fact. We should do the same.

What our current politics shares with war, though, is deeply felt enmity, a desire to disempower and ultimately eliminate one’s opponents, and the expectation that upon victory the spoils (which consist of unfettered control over national policy) will go entirely to the winners.

Progressives seem to believe they will end our political struggles by pushing their progressive agenda ever harder in the courts, in legislatures when possible, through executive orders, and through propagandizing in the media, the entertainment industry and in our schools. But this will not work. Even if progressive public policy were itself coherent and a source of political stability (which it is not), conservatives are not simply going away. But conservatives have no credible strategy either. They seem to believe that if they expose the ways in which progressivism departs from the Founders’ constitutionalism grounded in natural rights and republican virtue they will somehow defeat the progressives. But the progressives (Rawls included) are not at all confused about their departures from the Founders’ constitutionalism. And they are not going away either.

In the just-war tradition, one of the criteria of jus ad bellum is a prudentially sound judgment about the likelihood of doing more good than harm. One needs an “end game,” a credible plan for how a given war will serve the good. Unintended side-effects need to be considered seriously. The overarching effect of the war needs to have been worth it. In American politics today, we seem to be engaged in a kind of “war.” I use the term metaphorically here so that it designates not actual fighting but political battle. What our current politics shares with war, though, is deeply felt enmity, a desire to disempower and ultimately eliminate one’s opponents, and the expectation that upon victory the spoils (which consist of unfettered control over national policy) will go entirely to the winners.

But the end-game here is not credible. The “likelihood of success” is slim and the effort itself is likely to do more harm than good. In other words, the way we are fighting our political battles today does not meet the most basic conditions of a just war.

It is relatively easy to criticize John Rawls. His prose style was—as Burton Dreben once remarked—like something that was translated out of high German. His cast of mind was rationalist, his way of doing “moral theory” too abstract. He was a progressive who mistook his historically situated and fashionable progressive ideas for self-evident truth. And he was anti-democratic both in his theory of legitimacy and his high hopes for judicial rule.

But he was nevertheless a thinker whose work sheds considerable light on the problem of pluralism and the profound challenges it poses to the stability of a liberal democratic regime. There is much else for political theorists to do besides focusing on the problem that preoccupied Rawls, but it is nevertheless a most serious problem, and it is not clear to me that we shall survive it.