Routing a political dispute to the courts is the constitutional equivalent of appealing to one’s parents for relief from the bully on the block.
Recent disputes over the Patient Protection and Affordable Care Act go to the most basic of political issues, the proper goal of government.
The nature of the political good may seem a question for the seminar room, but the answer is what distinguishes libertarians, liberals, and conservatives. More specifically, it’s what accounts for the disputes over Obamacare.
According to libertarians, the basic political good is freedom, understood as a setting in which people make their choices and pay for them. What’s available for choice is what people can provide for themselves, together with whatever other people decide to make available. Such a view leads libertarians to oppose government-prescribed health care of any kind.
Liberals agree that the basic political good is freedom, but see it as a setting in which people make choices and receive social support for them. They note that a lack of options can limit freedom, and propose that goods everyone wants, or that facilitate choice in general, be made freely available. Thus, for example, they believe that government should provide for universal health care, since everyone wants to be healthy, and good health facilitates active autonomy. They also believe that personal choice should prevail over collective moral preferences, so Catholic employers should be required to make free birth control pills available to employees who want them.
Conservatives in contrast view the political good as maintenance of an overall way of life that has been found good through experience and reason. That way of life will generally include freedom, but it won’t put it first because freedom by itself doesn’t tell us what it’s for, and if we don’t know what it’s for we can’t resolve conflicts among claimed freedoms. So to make sense, freedom has to be part of a larger system of goods that gives it direction, setting, and meaning.
The result is that American with conservative inclinations may or may not like some form of national health care—socially conservative Catholic bishops mostly like it, most conservatives, however, view it as an example of overgrown government—but they agree that the way it’s carried out should accept the legitimacy of traditional moral concerns. A practical inference is that Georgetown Law School shouldn’t have to make birth control pills available to students if they view doing so a support for bad conduct.
So who’s right? Or, if the nature of the political good and how to realize it is too big a question to settle in a brief essay, what are some points to consider in forming a view of the matter?
Most people involved in discussing and designing public policy today are inclined toward the liberal view. If the right to choose is freedom, a right to social support for choices looks like supercharged freedom. There are, however, problems with that view. Providing social support for some choices means limiting others. People who want to spend their money on something other than government-prescribed health insurance, and Catholics who want to associate themselves with institutions that act in accordance with Catholic teaching, will not find that Obamacare increases their freedom. Such examples may not settle the matter, but they make it clear that choices conflict, some must be given priority, and the requirement of social support means that many choices will in fact be made by government.
From that point of view, the libertarian approach provides a more coherent form of freedom. Libertarians argue that if there is less government involvement in health care and other aspects of life, voluntary arrangements will provide a variety of choices that better satisfy people’s varying concerns and so increase their freedom. Property and contractual rights will determine whose choices win in case of conflict, and allow people to do the things they want to do on their own, or work out whatever they can with other people.
But that view has problems too. When liberals say that libertarians make freedom depend on wealth they have a point. How much property someone has can be rather arbitrary, and it’s not clear why freedom that depends on arbitrary conditions should be considered the truest freedom. Nor is it obvious why absolute property rights make more sense than other absolute rights people have sometimes claimed, the divine right of kings or the old Roman patria potestas, for example. So if it’s freedom and not the sacredness of rights claimed by individuals that’s the standard, why wouldn’t a more flexible approach toward property rights increase freedom overall?
There’s also a more basic question: is the libertarian state what people want? The scarcity of libertarians suggests that most people don’t like the array of choices a libertarian society has to offer. But if they don’t, how is it freedom to force that array of choices on them? Why shouldn’t freedom include some degree of freedom to choose the sort of society we want to live in, even if the society most people prefer has non-libertarian aspects?
That leads to the conservative view. The meaning of conservatism depends on what goods are being conserved, and in the West—and especially in America—those goods include freedom.
Like liberals, conservatives recognize that effective freedom depends on the choices the social environment makes available. Like libertarians, they recognize that a general system of social administration that determines what those choices are is at odds with any freedom worth the name. So conservatives join liberals in wanting government to support more institutions than contracts and private property. Nonetheless, they look for an approach that limits the growth of the administrative state, and believe that a more substantive standard than self-defining freedom is needed for reasonable decisions on what to support.
Their approach to limiting the administrative reach of the state is an extension of the libertarian strategy of supporting social self-organization. Libertarians value the self-organization of markets, and support it through legal enforcement of contractual and property rights, and through business law in general. Conservatives extend that strategy to other basic arrangements through which people carry on forms of life in which they find satisfaction. Those arrangements include family, cultural standards and connections in general, and religion—that is, generally-accepted systems of ultimate commitments and understandings. Such arrangements have been central to all societies, and they enable people to carry on their lives cooperatively in a dignified and productive way without constant government intervention. Conservatives therefore consider them worthy of some form of public support, and believe that such support can increase rather than suppress freedom by facilitating the functioning of relatively autonomous institutions such as families, local communities, and customary moral understandings.
But if government is going to support various features of social life that facilitate non-economic self-organization, it’s going to have to decide what to support, how to support it, and what overall goals to use as a standard. How can it do so? Like liberals, Conservatives believe that government should show special concern for basic goods that facilitate other goods. Unlike liberals they recognize that choosing those goods requires a view on the organization and relative value of human goods in general. Liberals and libertarians say it’s oppressive for government to take such a view, but they do so themselves, since they put forward their own views as the path to the best society for human beings to live in. How can they do so without a view on what such a society looks like, and what human life is about?
Conservatives only make the need for a social understanding of what life is about more explicit. They deal with it by noting that we never start from zero, since society functions coherently only to the extent it already has implicit answers to basic questions regarding human life. So the issue is not how to create a social order ex nihilo that conforms to abstract requirements, but how to preserve, restore, and extend goods already present in social life. In other words, it is how to maintain, repair, and develop an existing social, moral, and political tradition.
That general approach provides no immediate answers to concrete questions. It does, however, suggest something about how issues like Obamacare should be discussed. Discussions should appeal less to universal abstract standards like efficiency, equality, and autonomy, which lend themselves to schemes of social engineering that destroy freedom and ignore many dimensions of human life, than consideration of how American society has operated with respect to the complex goods Americans have lived by, and how to promote its better functioning in as prudent and little oppressive a way as possible. That is of course a complicated and difficult task, but who said politics or human life can be made easy?