Professor Kate Shaw’s Texas Law Review article Beyond the Bully Pulpit won the American Constitution Society’s Cudahy Award on Regulatory and Administrative Law. Seventh Circuit Judge David Hamilton presented her paper at the ACS National Convention in early June. Congratulations to Professor Shaw!
July 4, 2013 Huffington Post - We Americans have a distinct suspicion of the relationship between government and personal virtue. Anything that stems from that huge, amorphous and ominous thing in D.C. isn't just a bad idea but likely to stain your character. Libertarians and social conservatives are convinced that they are more than fighting big government, they are promoting virtue. Though happy to invoke a gauzy vision of something just beyond (behind?) the horizon, what is stunning is that both strains of the conservative camp flies in the face of not just modern social science but against thousands of years of our thinking about the relationship between virtue and government.
The libertarian position is so deeply embedded in the American psyche, it comes across as plain or intuitive. This view is captured, ironically, in the words of progressive Supreme Court Justice, Louis Brandeis, who opined that the greatest of all rights is the right to be let alone. Libertarians take this one step further, viewing the right against interference as the sole right against persons and the government. Government power then, in the libertarian ideal, is only justifiable to the extent absolutely needed to protect against unavoidable invasions of rights. From the philosopher Robert Nozick to the less intellectualized Tea Party, it is the right of the single individual as against all others that animates the libertarian.
But recapping political philosophy 101 misses the romance of the picture. Somewhere in the leap from philosophy books to the political arena, the libertarian ideal gets beefed up and ruggedly handsome. He is self-sufficient and brave and thus able to care for himself. She is wise and humble in seeking to limit state power. Wise because she knows that giving any person power corrupts them. Humble because she understands that even well intentioned government officials are more likely to do harm than good. The point explicitly pushed by libertarian think tanks like the Cato Institute is that the libertarian is not just a respecter of other people's rights; a libertarian is virtuous.
The remarkable thing about this picture is how totally at odds it is with social science, our most ancient philosophical thinking about the nature of human virtue and most strikingly, our everyday experiences. The self-sufficient and virtuous frontiersman is hardly recognizable as a human ideal and certainly not as the achievement of virtue. Aristotle recognized this over 2000 years ago when he described human beings as deeply social and political animals.
The social part is self-evident. Human beings do not like being alone. Of course, I don't mean that people do not ever want to be alone; that would be silly. But trapped on an island, if one spotted another person, the first impulse would be joy and relief; fear would be a distant second. Think of moving to a foreign city where you found it impossible to make any friends. This would be a frustrating and then terrifying sentence. Some may prefer bustling cities and others quiet hamlets, but there are few people who wish to be socially isolated for extended periods of time and taken to an extreme, such a wish can be a sign of trauma or mental health issues.
What is just as deep is Aristotle's description of people as "political animals." Notice that our connections go deeper than material needs. In contrast to other animals, it wouldn't be long after one secured food and shelter on the island before one started thinking, "Hmmm... I wonder if we can fashion a hammock? And what would it take to make some wine out of these coconuts, anyway?" Once the material necessities of life are secure, our rational nature is driven to find ways of living well. Secure against hunger and pain, human beings begin to pursue and construct more complex visions of lives worth living. One need not pursue the life of the proverbial Oxford don; the job, hobbies and friends one chooses, the vacation for which one saves, the city to which you move for its action or for the wide open views; these and a thousand other decisions, so subtle we hardly notice them, are the stuff through which we pursue a vision of good life.
More centrally, our ability to live the good live doesn't just depend on living together; it is constituted by living together. I don't mean to invoke the romantic picture of Rousseau. The only reason this sounds so abstract is that for most we have been so successful that we hardly notice anymore. Sitting in your office, it is easy forget the incredibly thick bonds that envelop one in comfort. Never mind that your food is inspected, clean water is regulated and the police and fire department stand ready. Going out to dinner with your husband tonight entails a sea of collective decisions we hardly notice. That old part of town with the cute restaurant? It only exists because of a web of zoning regulations. The restaurant itself survived last year's fire nextdoor because of the fire codes we sometimes mock, having long forgotten that cities once regularly burned down. Have too much to drink? Your cab driver has been licensed to get you home. (That's right... Hard to believe, I know. But would you want to take your chances with anyone who could just offer you a ride for money? I didn't think so.)
The rather simple observation is that many of our most elevated capacities can only be developed not just having secured the necessary material benefits, but by coming together to collectively to chose what we view as the good life. Central Park only exists because we collectively commit to setting aside land for the common good rather than the marketplace of individual decisions.
This is why Aristotle argued that human virtue -- our ability to reach our full human capacity -- depends not on our heroic individualism but on our coming together to govern. Like most New Yorkers, Aristotle believed that one could hardly be fully human outside of a city. This is not to join the chorus of urban snobs who believe the suburbs make you sub-human. Rather, it is to point out that so many of the best things we do depend on countless joint legal and political commitments. Those unfortunate enough to live in areas before a political community had been formed would find themselves unable to do much more than scramble to survive. If your only encounter with humans were a single person or a small band struggling daily to survive -- think of the heartbreaking pictures of war torn or drought-ridden nations -- one could hardly imagine the heights to which human beings can develop. Our distinctly human virtues can only be developed when we act together to pursue a shared vision of a good live. And the heights of our capacities can only be reached by supporting the good life through our law and politics.
We have advanced from the Middle Ages, where even kings lacked toilets, to a world where we can text our friends a world away; it has been our political commitments to everything from modern roads, hospitals and sewers to research and development that has revealed the heights of our distinctly human virtues. Romantic visions of knights aside, it is hard to cultivate human virtues if the plague is constantly wiping out your village. Our museums, jazz clubs, chess tournaments and haute cuisine are all possible just because we bond together to not only live but to live well.
To be fair, it's not that libertarians all walk around shunning human contact; they need not deny the value of working together. What libertarianism denies is the ability to govern in the name of the common good. And in doing so, libertarians all to often borrow from the romantic view that standing alone is virtuous. Of course, those who believe in the ancient republican values of civic bonds cannot naively pretend governing together is always in pursuit of our best selves; the Holocaust no less than the polio vaccine was accomplished in part through the coordination of governments. We must always maintain a healthy space for individual rights. Still, the stirring language in last week's Supreme Court case overturning DOMA reminds us that supporting individual rights can often be more effective by recognizing our equal claims to the respect not just of individual rights.
But as one sees upon reflection, the most distinct human virtues can only be accomplished by laying down laws to achieve our heights together. That is why Aristotle thought that the highest virtues were often civic virtues; taking turns to contribute to your society by participating in government, ruling and being ruled in turn. It is in civic virtue that we recognize that part of what we do by law is set aside our unbridled individual interest. It is the sacrifice we gladly bare when we support taxes for our public schools and playgrounds though we have no children and when we give of our time for jury duty. We collectively guard our capacities by recognizing that one cannot flourish as fully if random disease can strike you down or leave you destitute. It is this philosophically republican spirit that Obama has invoked time and time again in his State of the Union addresses. And it is the civic virtue that we most celebrate on the Fourth of July when we recognized those who risk and sacrifice so much for our common liberty. It is the basic realization that rolling up your sleeves and being a part of your political community, rather than grasping at a fuzzy picture of a cowboy alone on a plain, is the true display of virtue.