The Meaning of Justice
Article #8 in a Series on the Constitution

By Timothy B. Lewis of the Constitutional Freedom Foundation

The first seven articles I called “Constitutional Primers” since they were designed to reacquaint people with our constitutional roots and to show how far we have removed ourselves from our founding philosophy. 

One of the characteristics of the great civilizations that have risen and fallen throughout history, is the fact that over time they departed from their basic founding principles.  Drunken by the success caused by the principles established by their forebears, later generations became blinded to actual cause and effect relationships.  They seemed to assume that prosperity was somehow their natural birthright regardless of what they themselves did and the principles they followed.

Both the departures from their founding principles and the results caused thereby were very gradual -- so much so, that at any point along the way, the resulting effects on the psyche of the people was almost imperceptible.  Only in cumulative hindsight could the results be seen.  Any call of warning along the way was easily dismissed as being irrationally reactionary. 

It seems to be a part of human nature that political wants almost always overpower political needs over time.  Unless direct and immediate negative societal repercussions come about because of a particular political change -- which they seldom do –  people tend to be totally blind to the probable indirect and delayed negative consequences of that change. As David M. Whalen once observed: “...much of what we would like to think of as inconsequential is often hugely consequential.” ^[1]   This failure on our parts is what unwittingly causes perverse incentives and costly unintended side effects.

It is a willful type of blindness similar to that of an inexperienced teenager who quickly dismisses and ignores the warnings of his parents about the natural consequences of certain choices he wants to make.  He is in no mood for self-restraint -- his impetuous wants obscure any sense of needs.  He truly believes that his parents simply don’t know what they are talking about -- that somehow things have fundamentally changed since they were teenagers.  But he eventually discovers that some things just don’t change and such is the nature of fundamental principles.

I my opinion, it is impossible to change our direction back towards the original political principles that caused our great American success story without a firm understanding of where we came from.  But these principles are no longer generally taught by our history and political science teachers because they are no longer generally believed by them.  They are simply passed off as principles that have outlived their usefulness in our day and age and are quickly glossed over in order to address things which, in their opinion, are “really” important.  Obviously, I disagree.

Perhaps there are other things that could be included in the Primer series, but for now, I would like to draw things to a close and change gears a little bit.  Before closing off the series, in the next three articles I would like to talk about three interrelated topics – justice, equality, and rights – which frequently arise in political debates but which are not well understood.  Because I have not found a lot of materials from the founding era on these topics and rely primarily on more contemporary writers, I will not call these articles “Constitutional Primers.”  Nevertheless, I hope you will find the final articles to be thought-provoking and useful even if on some points you personally disagree.

What Is Justice?

Socrates once mused: “...justice, if only we knew what it was.” ^[2]   From the outset, I must admit that due to the nature of this topic, whatever I say about it will necessarily be inadequate.   So please consider the thoughts and arguments expressed here as just a starting point for your own further exploration of the subject.  The only reason I take a stab at it here is because the word “justice” is used all the time to argue for legal change.  On its face, it is a very impressive word that naturally carries a lot of respect, but its meaning is illusive – and before one is convinced that, in its name, a particular proposal to change the law should occur, one should ponder its meaning a little more carefully than we tend to do.

For much of our discussion I will rely upon a very interesting book by Thomas Sowell entitled The Quest for Cosmic Justice.  All of my quotations will be from that book unless indicated otherwise.

If you haven’t noticed by now through the various articles to date, I am simply serving the role of a weaver of what I consider to be many silken threads of fine quality, produced by others.   Jacques Barzun observed: “...it could be said that no subject of study is more important than reading.  In our civilization, at any rate, all the other intellectual powers depend upon it.” ^[3]    Over the years I have read lots of things and whenever something strikes me as being both important and true (or at least very close), I save it for future use and try to weave it together with the great thoughts, observations, and insights of others into a piece of cloth which has a pleasing and insightful pattern for myself and others to see.  This is how I view my role as a teacher.  If you can weave a better and truer pattern, by all means do so and share it with others.  Through this process we enable all who will, to stand upon the shoulders of giants and see further and more clearly down the dangerous road which lies before us.

Our Lack Of A Universally Understood Meaning of the Word “Justice”

“One of the few subjects on which we all seem to agree is the need for justice.  But our agreement is only seeming because we mean such different things by the same word.  Whatever moral principle each of us believes in, we call justice, so we are only talking in a circle when we say that we advocate justice, unless we specify just what conception of justice we have in mind.  This is especially so today, when so many advocate what they call ‘social justice’ -- often with great passion, but with no definition.” ^[4]

Cosmic Justice

I believe that “cosmic justice,” as Sowell uses the term, refers to the perfect type of justice that only an omniscient God could render – rewards and punishments that are fairly and equally earned and deserved when all relevant things are properly taken into consideration.  Inherent human limitations, however, make it impossible for us to achieve this type of justice through human law, even though many times it seems that people are arguing for this type of justice and promote policies they think will render it through our human laws.  But our human legal systems should not try to dispense cosmic justice since we do not know all the critical relevant facts or understand all the complex causal interrelationships involved or even know definitively what cosmic justice really is. 

Whether somebody merits or deserves something is a very difficult thing for us to accurately determine.  For one thing, we are not knowledgeable enough about all the critical factors or smart enough, even if we knew what they all were, to perform the complicated calculus necessary to understand how all of the complex interrelationships among the various variables should affect our ultimate conclusions.  Merit or deservedness necessarily focuses on a consideration of inputs.  God is capable of perfectly considering all these things, but we are not.  With all the limitations that we face as mere humans, the best we can reasonably do is judge primarily based upon outputs, rather than inputs.

For example, as a teacher, whenever I give a test, there is a broad distribution of scores.  I have very little ability to judge the individual merits of any particular student’s score based on an assessment of inputs.  All I can reasonably do is judge based upon outputs – i.e. the relative test scores each student produces.  Students sometimes come to my office and complain about their grades saying that they dedicated huge amounts of time to their studies and deserved better grades than they got.  This may be so, but how am I to judge that?  Maybe they were lying to me when they said how much time they spent.  Maybe they spent as much time as they said they did, but studied very inefficiently – daydreaming, talking to friends while in the library, reading at the same time they were watching several television programs, etc.

Let’s say that I believed one student who got a “C” actually studied at the best of his abilities for ten hours for a particular test while another student who got an “A” studied only two hours for the same test.  Was the grading necessarily unjust from an inputs standpoint?  No, because we haven’t adequately considered all the relevant inputs, just a few.  For example, the “C” student may have been lazy (mentally) for most of his life and read very little on his own, choosing instead to watch T.V., play sports, etc.  The “A” student, on the other hand, may have spent most of his growing-up years with his nose buried in one book or another.  His voracious reading habits allowed him to read and comprehend things easily.  Such reading introduced him to various facts, figures and interrelationships that allowed him to see the connection of various dots and to improve his logical and rational thinking skills in the process.  His efforts may have enabled him to quickly distinguish between relevant and irrelevant information in making decisions.  His personal efforts probably caused his brain to become wired differently than the other student’s.  And all of this paid dividends later in life when he only had to spend two hours of study in my class compared to the ten spent by the other student.  So were the two relative grades just or unjust?   And who knows how many other critical variables I left out of the analysis?

And so it is in the rest of the real world of human society.  Because of our human limitations, most people try to judge primarily on outputs rather than inputs.  For example, in determining guilt or innocence, the judge in the criminal court won’t care what type of childhood you experienced, she and the law expect law-abiding behavior from everybody; the marketplace won’t care how much time and effort you expended in trying to build a better mouse trap, it only cares about whether or not you actually succeed in doing so; etc.  That may not be justice in a cosmic sense, but that is the practical reality of life.

Sometimes a reasonable assessment of inputs can be done, in which case they too are considered. For example, your employer will be primarily concerned with the quality of the job done but will also be concerned about how much time you spent in performing that job relative to your fellow employees.  If the quality of your work matches another employee’s but he can perform the same high-quality work in only half the time it takes you to do the same thing, then naturally, your employer will consider him to be a more valuable employee than you because of his relative efficiency in the use of inputs (i.e. time) compared to yours.   Arguably, this would be a more just judgment than just looking at outputs, but there are still other variables being ignored in the comparison that might have some bearing on the ultimate judgment.  For example, how were both employees raised by their parents – did one have an advantage over the other? Etc.

Sometimes “justice” and “fairness” are looked at as synonyms.  Concerning fairness, Sowell observed:

“Ask ten people what ‘fairness’ means and you can get eleven different definitions.  Expecting government to promote ‘fairness’ is just giving politicians more arbitrary power....As long as human beings are imperfect, there will always be arguments for extending the power of government to deal with these imperfections.  The only logical stopping place is totalitarianism – unless we realize that tolerating imperfections is the price of freedom.” ^[5]

Traditional Justice

Madison observed:

“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity....Is a law proposed concerning private debts?  It is a question to which the creditors are parties on one side and the debtors on the other.  Justice ought to hold the balance between them.” ^[6]

So according to Madison, impartial and disinterested judging between competing interests equals one aspect of justice.

“Cosmic justice is not simply a higher degree of traditional justice, it is a fundamentally different concept.  Traditionally, justice or injustice is characteristic of a process.  A defendant in a criminal case would be said to have received justice if the trial were conducted as it should be, under fair rules and with the judge and jury being impartial.  After such a trial, it could be said that ‘justice was done’ -- regardless of whether the outcome was an acquittal or an execution.  Conversely, if the trial were conducted in violation of the rules and with a judge or jury showing prejudice against the defendant, this would be considered an unfair or unjust trial -- even if the prosecutor failed in the end to get enough jurors to vote to convict an innocent person.  In short, traditional justice is about impartial processes rather than either results or prospects.” ^[7]

I presume that Sowell would say that cosmic justice would be frustrated when a murderer is acquitted even though he would say that “justice was done” from a traditional standpoint assuming the judicial process was fair and impartial.  One prime notion that most people have about justice is that when a law is broken, an appropriate punishment must follow.

Structural Justice

In Federalist No. 51, Madison also said:

“Justice is the end of government. It is the end of civil society.  It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” ^[8]

What did Madison mean by the word “justice” in this statement?  To answer this we must consider what the focus of the discussion of Federalist No. 51 was – separation of powers and checks and balances.  Throughout it he discusses the potential abuse of power by men and how the federal system of shared/divided powers (horizontally and vertically) was designed to limit the ability of majority factions to arise that could oppress the minority. ^[9]    If men were angels there would be no need to set up structural inhibitions to the abuse of some towards others, but since our motives lack angelic stature, the next best thing is to set ambition against ambition and set natural rivalries in opposition to one another in order to keep them in check. ^[10]    He talks about protecting human rights ^[11] and about the equal application and protection of the law for all people. ^[12]   For want of a better name, I will call this “structural justice” since the purpose of our structural framework of government is to prevent injustice from occurring to a certain extent.

Interestingly, Madison seems to recognize a possible trade-off between justice and liberty.  He appears to be warning us that there are practical limits to the ability of human law to promote justice and that if we don’t recognize those limits, we will unwisely sacrifice too much liberty in our pursuit of an unattainable level of justice.  This naturally leads us into a discussion of “social justice.”

Social Justice

Madison further observed:          

“The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice.  Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.” ^[13]

So Madison argued that justice requires equality of tax burden and that taxing one group unequally to benefit another group would amount to injustice. 

Lincoln tended to agree with Madison when he observed:

"What is the true condition of the laborer?  I take it that it is best for all to leave each man free to acquire property as fast as he can.  Some will get wealthy.  I don't believe in a law to prevent a man from getting rich;  it would do more harm than good....I want every man to have the chance -- and I believe a black man is entitled to it -- in which he can better his condition -- when he may look forward and hope to be a hired laborer this year and the next, work for himself afterward, and finally to hire men to work for him!  That is the true system." ^[14]
"The strongest bond of human sympathy, outside of the family relation, should be one uniting all working people, of all nations, and tongues, and kindreds.  Nor should this lead to war upon property, of the owners of property.  Property is the fruit of labor -- property is desirable -- is a positive good in the world.  That some should be rich, shows that others may become rich, and hence is just encouragement to industry and enterprise.  Let not him who is houseless pull down the house of another; but let him labor diligently and build one for himself, thus by example assuring that his own shall be safe from violence when built." ^[15]

In ancient Rome, Cicero observed:

"Our history teaches us that when a government is honest and just and virtuous, taxes are light.  But when a government becomes powerful it is destructive, extravagant, and violent; it is an usurer which takes bread from innocent mouths and deprives honorable men of their substance, for votes with which to perpetuate self." ^[16]

George Bernard Shaw (a socialist playwright) similarly understood that: "A government which robs Peter to pay Paul can always depend on the support of Paul.” ^[17]

Since “social justice” envisions the redistribution of wealth, of necessity, it flies in the face of Madison’s and Lincoln’s notion of justice.  Balint Vazsonyi lends some interesting perspective on the idea of social justice.

Vazsonyi was a Hungarian refuge who was able to escape to the United States during World War II.  He saw what life was like in his homeland first under Nazi German occupation followed by communist Russian occupation.  Both regimes looked very much the same to him – both had the same basic social goals and were very frightful, repressive and depressing.  Drawing from his experiences, he wrote a very interesting book entitled America’s 30 Years War – Who is Winning.  In it he discusses America’s departure from its political and philosophical roots. Concerning the subject of social justice, he said:

“[The words ‘social justice’] are among the most successful deceptions ever conceived.  Ask a variety of people to define what ‘social justice’ means, specifically, and you will get as many answers as people queried.  Ask the same person at different times and you will get different responses.  All ‘definitions’ of social justice boil down to any of the following:

(1) somebody should have the power to determine what you can have, or (2) somebody should have the power to determine what you cannot have, or (3) somebody should have the power to determine what to take away from you in order to give it to others who receive it without any obligation to earn it.

“If millions upon millions have been deluded into searching for ‘social justice,’ it is because ‘social justice’ displays the irresistible charm of the temptress and the armament of the enraged avenger; because it adorns itself in intoxicating clichés and wears the insignia of the highest institutions of learning.  Like a poisonous snake, it radiates brilliant colors.  Like the poppies in The Wizard of Oz, it lulls the mind to sleep.
“The easiest targets happen to be civilized people, who care about the fate of others....Hayek traces the origins of the usage to German theorists and argues persuasively that ‘social,’ far from adding anything, in fact drains all nouns to which it is attached of content or meaning.* * *
“Advocates of social justice point to the downtrodden, the dispossessed, the disenfranchised.  Advocates of social justice insist that, in order to demonstrate a social conscience, a person must resolve to eliminate poverty, eliminate suffering, and eliminate differences among people.  The assumption is that society can and will reach a state in which all its members enjoy just the right quantity and proportion of attributes, possessions, and good fortune in relation to all other members, and to their own expectations.
“Special attention must be focused upon the word ‘eliminate’....What are the practical implications?
“In order to eliminate poverty, agreement must be reached on terminology.  Poor by what standard?  Poor in Albania or Zaire is very different from poor in Switzerland or the United States.  Poverty, then, is relative, and in relative terms, there will always be ‘poverty’ as long as some people have more and others have less.  Two possibilities arise.  One is to establish the authority which will take possession of all goods and distribute them evenly among the populace.  This would have to be a continuous process because the more gifted and more industrious will keep accumulating more than the others.  The second option is to concede that it is all nonsense.* * *
“The ultimate nonsense is the search for social justice.  This is not to insult the millions of highly respectable people who have been deluded into adopting social justice as their goal.  But the truth is, if subjected to honest scrutiny, the very concept flies in the face of both reason and experience.  Worse still is the presumptuous implication that, were social justice possible, certain persons are better able than others to judge what it is.  (Incidentally, how does such an implication square with the doctrine that we are all the same?)
“‘Social justice’ generally means that justice must prevail in the social sphere.  But society is in constant flux; its state undergoes constant change.  Thus, if a state of justice exists in a given minute, it is unlikely to exist in the next.  There will be either more or less justice.  How do we monitor performance?  What are the measurements.”  Who judges the data?  And, even more troubling, what of the choice between a static and a dynamic society?  Most favor a dynamic society for obvious reasons.  But a dynamic society produces variable states of social justice.
“According to the only theory in existence, to attain a satisfactory state of social justice, social tensions – the source of dynamism – are to be eliminated (there is that word again!).  Once that is achieved, society will of course be static.  We have to work diligently, the prescription goes, to attain a state of being with no social tensions.
“The state so characterized is known as ‘communism.’
“Unwittingly, perhaps, in many cases, but persons who advocate social justice advocate communism.  Taking social justice to its logical conclusion, nothing less will suffice....The essence of communism is social justice – the elimination of poverty, the elimination of suffering, the elimination of all differences that erect walls between people.  The essence of communism is the global village in which everyone benefits equally within an interdependent and socially conscious world.  The essence of communism is the rearing of children by the village.  Even Hitler’s version, which he called ‘national socialism,’ was intended to deliver great and lasting benefits to the masses, once a few million redundant [and perhaps, uncooperative] people were, well, eliminated.* * *
“Social warfare clearly undermines domestic tranquility.  But the even greater evil is that it fuels discontent and induces a permanent state of hopelessness by setting unattainable goals.  And unattained they shall remain, except of course in communism – if you believe the theory.
“Perhaps some do.
“But the rest of us need to face the fact that the Rule of Law and the Search for Social Justice cannot exist side-by-side because social justice requires that those who possess more of anything have it taken away from them.  The Rule of Law will not permit that.  It exists to guarantee conditions in which more people can have more liberty, more rights, more possessions.  Prophets of social justice – communists, whether by that or any other name – focus on who should have less. Because they have nothing to give, they can only take away.  First, they take away opportunity.  Next, they take away possessions.  In the end, they have to take away life itself.” ^[18]
“That ‘social justice’ was as much Hitler’s slogan as it is today the battle cry of American liberals, has been long forgotten.” ^[19]

In considering the origin and implications of the term “social justice,” one should consider what Lord Acton once observed:

“Few discoveries are more irritating that those which expose the pedigree of ideas.” ^[20]

Socialism – How Its Meaning Has Changed

In Hayek’s original 1944 edition of The Road to Serfdom, he said:

“[S]ocialism means the abolition of private enterprise, of private ownership of the means of production, and the creation of a system of ‘planned economy’ in which the entrepreneur working for profits is replaced by a central planning body.” ^[21]

However, the meaning of language evolves and failed ideas tend to have the unfortunate habit of resurfacing and evolving along with the language used to describe them, which makes clear discernment and analysis more difficult.  In the preface to the 1976 reprint edition of his book, Hayek observed:

“At the time I wrote [the book in 1944], socialism meant unambiguously the nationalization of the means of production and the central economic planning which this made possible and necessary....[But now,] socialism has come to mean chiefly the extensive redistribution of incomes through taxation and the institutions of the welfare state.  In the latter kind of socialism the effects I discuss in this book are brought about more slowly, indirectly, and imperfectly.  I believe that the ultimate outcome tends to be very much the same, although the process by which it is brought about is not quite the same as that described in this book.” ^[22]

In the Preface to the 1994 edition of the book, Milton Friedman, who, like Hayek, was also a Nobel Laureate in economics, said:

“The free market is the only mechanism that has ever been discovered for achieving participatory democracy.  Unfortunately, the relation between the ends and the means remains widely misunderstood.  Many of those who profess the most individualistic objectives support collectivist means without recognizing the contradiction.  It is tempting to believe that social evils arise from the activities of evil men and that if only good men (like ourselves, naturally) wielded power, all would be well.  That view requires only emotion and self-praise – easy to come by and satisfying as well....Surely that is one answer to the perennial mystery of why collectivism, with its demonstrated record of producing tyranny and misery, is so widely regarded as superior to individualism, with its demonstrated record of producing freedom and plenty.  The argument for collectivism is simple if false; it is an immediate emotional argument.  The argument for individualism is subtle and sophisticated; it is an indirect rational argument.  And the emotional faculties are more highly developed in most men than the rational, paradoxically or especially even in those who regard themselves as intellectuals.” ^[23]

Friedman wrote his preface after the Berlin Wall had fallen, the communist governments of Russia and eastern Europe had collapsed, and after western Europe –  and to a lesser degree, America –  had developed into welfare states.  Recognizing, as Hayek did earlier, the same transition or change in the governmental expression of the notion of social justice, he said:

“‘What produced this unexpected check to collectivism?’...two forces....First,...the conflict between central planning and individual liberty....Second,...its inefficiency.  Government proved unable to manage enterprises, to organize resources to achieve stated objectives at reasonable cost.  It became mired in bureaucratic confusion and inefficiency....Unfortunately, the check to collectivism did not check the growth of government; rather, it diverted its growth to a different channel.  The emphasis shifted from governmentally administered production activities to indirect regulation of supposedly private enterprises and even more to governmental transfer programs, involving extracting taxes from some in order to make grants to others – all in the name of equality [,social justice,] and the eradication of poverty....” ^[24]

To illustrate his point, the story is told that on a tour of India once, Milton Friedman observed a lot of men constructing an irrigation canal with hand shovels but no heavy equipment.  He asked the government official giving him the tour why they did not make the work more efficient by giving the workers heavy earth-moving equipment to use.  The official answered “because we want to create more jobs through this project.”  “I see” said Mr. Friedman, “then why not give them all teaspoons instead of shovels?”

In contrast to free market business, government projects are not very concerned about cost and efficiency because the prime goals of each group differ.  Today, the government’s prime goals seem to be social in nature whereas the prime goals of free market business are economic in nature. 

But as economist Henry Hazlitt observed, the best way to achieve full employment is not to look at that as the direct goal but as an indirect goal that will naturally come about on its own if society’s direct focus is on the full and efficient production of goods and services. ^[25]   After all, real increases in wages are driven by increases in the efficiency of production ^[26] since such efficiency creates a bigger economic pie to divide among its various contributors.  So unwittingly, the real wages and economic well-being of those Indian workers were being artificially kept down by their government’s insistence upon making them work so inefficiently for the sake of achieving full employment. 

The Indian officials weren’t doing this maliciously – they thought they were acting in a socially responsible way in pursuing what they thought to be social justice.  But can’t everyone quickly see that had every man in India been given a teaspoon and a job on that canal project, life would be miserable for all those workers and their families?  The whole nation’s productive capacity would be dedicated to that one project.  Consequently, nothing else in the country could be accomplished and the economic pie created that year to be divvied up among everybody, would be very small and unsatisfying.   If instead, had only a few people been assigned to that project and been given good equipment to get the job done quickly and efficiently, everybody else would have been freed up to produce other things like food, shoes, cars, etc.  The resulting economic pie to be divvied up among everybody in this alternate case would consequently be much larger and more satisfying to each individual contributor. 

Despite the disdain many hold for the “profit motive” in free market systems, it naturally forces people to think in terms of efficiency of production; and these resulting increases in efficiencies, cause the economic pies created by such economies to be much larger than those created in countries where their economies are more heavily regulated and controlled for the sake of achieving  “social justice.” 

Ultimately, one has to decide for one’s self which is best – (1) producing more for all to enjoy but with vast disparities in the distribution of benefits among the populace because of differing intellect,  talents, abilities, drive, inclinations, etc., or (2) producing less for all to enjoy but with an equal (or at least less unequal) distribution of these lesser benefits among all of society.  And one’s sense of justice is but one aspect to be considered in that overall philosophical question.   The next article on equality will delve into this matter further.

Social Democracy

Today, pursuing the notion of social justice, many European countries are called “social democracies” which, to borrow a term from the various beer commercials on television, amounts to “socialism-lite” or simply, the new meaning of socialism as Hayek indicated.  As discussed above, whatever the name, the same social goals serve as the prime motivators.

The phrase “social democrat” even existed in Fredric Bastiat’s day (1850).  He made fun of the phrase as being an oxymoron or, contradiction in terms.  He said: “So far as they are democratic, they place unlimited faith in mankind.  But so far as they are social, they regard mankind as little better than mud.” ^[27]

Alexis de Tocqueville wrote an interesting book first published in1835 called Democracy in America.   He showed amazing clairvoyance concerning the future regarding the type of despotism we should expect to see in mature democracies, or social democracies, which turn away from classical liberalism (freedom) and turn toward heavy government regulation to promote various social goals.  Said he:

“[I]f despotism were to be established amongst the democratic nations...it might assume a different character; it would be more extensive and more mild; it would degrade men without tormenting them.
“Above this race of men stands an immense and tutelary [protective, guardian-like] power, which takes upon itself alone to secure their gratifications, and to watch over their fate.  That power is absolute, minute, regular, provident, and mild.  It would be like the authority of a parent, if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood....[I]t provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances; what remains, but to spare them all the care of thinking and all the trouble of living? 
“Thus, it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range, and gradually robs a man of all the uses of himself.  The principle of equality has prepared men for these things; it has predisposed men to endure them, and oftentimes to look on them as benefits.
“After having thus successively taken each member of the community in its powerful grasp, and fashioned him at will, the supreme power then extends its arm over the whole community.  It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd.  The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting: such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd.
“[They] are constantly excited by two conflicting passions; they want to be led, and they wish to remain free: as they cannot destroy either the one or the other of these contrary propensities, they strive to satisfy them both at once.  They devise a sole, tutelary and all- powerful form of government, but elected by the people.  They combine the principle of centralization and that of popular sovereignty; this gives them a respite: they console themselves for being in tutelage by the reflection that they have chosen their own guardians.  Every man allows himself to be put in leading-strings [chains], because he sees that it is not a person or a class of persons but the people at large, who hold the end of his chain. “By this system, the people shake off their state of dependence just long enough to select their master, and then relapse into it again....[They] are quite contented with this sort of compromise between administrative despotism and the sovereignty of the people...”
“[This arrangement seems] less degrading: because every man, when he is oppressed and disarmed, may still imagine that, whilst he yields obedience, it is to himself he yields it....” ^[28] (emphasis added)

F. A. Hayek observed:

“[T]he most important change which extensive government control produces is a psychological change, an alteration in the character of the people.  This is necessarily a slow affair, a process which extends not over a few years but perhaps over one or two generations.” ^[29]

In depressing fulfillment of both de Tocqueville’s and Hayek’s predictions, I recommend you read Life At The Bottom – The Worldview That Makes The Underclass (2001), by Theodore Dalrymple, a prison doctor who chronicles what life is like in the growing and violent underclass of present-day England where the welfare state provides for everyone’s basic needs.

A decade and a half after de Tocqueville’s book, in an acerbic jab at the socialist writers of his day in France, Fredric Bastiat observed:

“They divide mankind into two parts.  People in general — with the exception of the writer himself — form the first group.  The writer, all alone, forms the second and most important group.  Surely this is the weirdest and most conceited notion that ever entered a human brain!  In fact, these writers on public affairs begin by supposing that people have within themselves no means of discernment; no motivation to action.  The writers assume that people are inert matter, passive particles, motionless atoms, at best a kind of vegetation indifferent to its own manner of existence.  They assume that people are susceptible to being shaped — by the will and hand of another person — into an infinite variety of forms, more or less symmetrical, artistic, and perfected....[They] look upon people in the same manner that the gardener views his trees....And just as the gardener needs axes, pruning hooks, saws, and shears to shape his trees, just so does the socialist writer need the force that he can find only in law to shape human beings....[In most books on French philosophy, politics, or history] you will probably find this idea that mankind is merely inert matter, receiving life, organization, morality, and prosperity from the power of the state.***
“If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good?  Do not the legislators and their appointed agents also belong to the human race?  Or do they believe that they themselves are made of finer clay than the rest of mankind?  The organizers maintain that society, when left undirected, rushes headlong to its inevitable destruction because the instincts of the people are so perverse.  The legislators claim to stop this suicidal course and to give it a saner direction.  Apparently, then, the legislators and the organizers have received from Heaven an intelligence and virtue that place them beyond and above mankind; if so, let them show their titles to this superiority.  They would be the shepherds over us, their sheep.***They think only of subjecting mankind to the philanthropic tyranny of their own social inventions.  Like Rousseau, they desire to force mankind docilely to bear this yoke of the public welfare that they have dreamed up in their own imaginations.***
“By what right does the law force me to conform to the social plans of [the politicians of my day]?  If the law has a moral right to do this, why does it not, then, force these gentlemen to submit to my plans?  Is it logical to suppose that nature has not given me sufficient imagination to dream up a utopia also?  Should the law choose one fantasy among many, and put the organized force of government at its service only?  Law is justice.  And let it not be said — as it continually is said — that under this concept, the law would be atheistic, individualistic, and heartless; that it would make mankind in its own image.  This is an absurd conclusion, worthy only of those worshippers of government who believe that the law is mankind.” ^[30] (the italicized emphases were his and the underlined ones are mine)

A Major Sea Change In The Law: Rather Than Just Prohibit Harmful Intrusions Into Other People’s Affairs, The Law Started Trying To Make People Be Good To Each Other

In nineteenth century America, when people contracted with one another, they were free to custom make their relationship unencumbered by a lot of governmental intrusion.  People were free to be kind or rude to one another.  They were free to be charitable or stingy towards one another.  They had a wide berth to determine how they would treat one another under the dictates of their own personal consciences.  The founders were content to leave such matters in the sphere of moral persuasion/liberty with the ultimate determination of justice occurring on the judgment day between God and man.  However, more than a century later, this was no longer considered to be sufficient.

James W. Ely, Jr. tells us:

"The emergence of the business corporation, coupled with the workings of a free-market economy, exacerbated disparities of wealth and concentrated tremendous economic power in relatively few hands....Consequently, by 1900 the focus of lawmakers shifted markedly from the promotion of economic growth to its regulation.  Legislators sought to redress the unbalanced social and economic situation by, in essence, mandating a redistribution of property in favor of those viewed as disadvantaged.....The political and intellectual triumph of the New Deal seemingly settled this conflict by assigning property to a secondary status with only limited constitutional protection, a development that allowed a wide sway for economic regulation. * * * [G]iven the framers' concern with protecting property as well as the nearly 150 years of Supreme Court activity in this field, the relegation of property rights to a lesser constitutional status is not historically warranted.  The framers did not separate property and personal rights.  Significantly, the language of the Fifth Amendment unites safeguards from both liberty and property." ^[31]

So starting with the early twentieth century’s efforts to regulate child labor, minimum wages, and workplace safety, etc., motivated by a sense of social justice, government became more and more willing to inject itself into the contractual relations between individuals.  The trend really got steam rolling forward with the Civil Rights Act of 1964.  In effect, the law started taking on the very ambitious goal of trying to socially engineer people to be good to each other through the force of law.  Rather than being satisfied with the more modest goal of prohibiting an individual from interfering with someone else's legal rights, it starting mandating certain affirmative conduct on the part of individuals to benefit their fellow man -- or in other words, it added affirmative action to the traditional goal of anti-intrusion.

But the more we take things like this out of the field of moral persuasion and place them in the field of legal mandate, the more we experience what Frederic Bastiat called “philanthropic tyranny” or “indirect despotism.”  Said he:

“Usually... these gentlemen — the reformers, the legislators, and the writers on public affairs — do not desire to impose direct despotism upon mankind.  Oh no, they are too moderate and philanthropic for such direct action.  Instead, they turn to the law for this despotism, this absolutism, this omnipotence.  They desire only to make the laws.” ^[32]

According to Webster’s dictionary, the word “despot” originally meant “master;” “despotic” means “tyrannical;” and “tyranny” means “oppressive and unjust government.”  The fact that a particular form of government purports to be representative in nature (rather than run by a dictator), does not preclude it from becoming despotic — this, I think, is what Bastiat was saying. 

Walter Williams, an economist, likewise said: “Democracy gives an aura of legitimacy to things that once were considered to be tyrannical.” ^[33]

The Effects of Social Justice on Individual Incentive and Economic Prosperity

One of the problems with crossing this threshold –  i.e. going beyond the traditional anti-intrusionary legal focus and affirmatively forcing people to be good to each other –  is that there is no logical stopping point.  Once we inject the collective social conscience in one instance, then why not in the next ad infinitum?  It is reasonable to expect that no matter how far we go, there will always be some sense of injustice or unfairness remaining that people will want to eradicate next.  Degree by degree, the frog will eventually get cooked and our economy wrecked.  Again, each increase in temperature will hardly be noticed but cumulatively, the strength and vitality will be sucked out of the frog’s body.  Each change in favor of one side of the bargaining table comes only at the expense of the party across the table – the employer. 

Through legal mandate, as we artificially impose more costs on doing business, fewer people will think it worth the risk of pursuing their entrepreneurial tendencies.  Rather than starting their own businesses and supplying jobs both to themselves and others, they will ask somebody else for jobs.  The economy will lose its strength and become anemic. 

Also, as we continue to legally stack the deck in favor of one player, at some point the other player will simply opt out of the game and refuse to play by such rules.  After all, how can we force employers to employ if they see more resulting costs than benefits?  If we ever get to a point where the economy stalls and refuses to budge even when all the experts say it should begin turning around, remember this discussion about the legal environment of business.  It really is possible to inadvertently trade economic prosperity for our sense of social justice.

Along these lines, we should take some hints from Europe whose legally mandated welfare states are more extensive than ours.  Their average unemployment rate is about twice what ours is.  By virtue of the relatively more extensive “social justice” imposed by their laws, it is too costly for European employers to expand their employment bases relative to ours.

Returning to Thomas Sowell on the issue of “social justice” and its detrimental effects on individual incentive: “What ‘social justice’ seeks to do is to eliminate undeserved disadvantages for selected groups.” ^[34]    Of course, the difference between “deserved” and “undeserved” may be in the eye of the beholder.  When “rules and standards equally applicable to all are...deliberately set aside” to promote “social justice,” it will go contrary to traditional justice. ^[35]    I presume he would view “social justice” as some sort of crude human attempt to achieve somebody’s conceptualization of “cosmic justice.”

“...the question is not what we would do if we were God on the first day of Creation or how we would judge souls if we were God on the Judgment Day.  The question is: What lies within our knowledge and control, given that we are only human, with all the severe limitations which that implies?  

“One of the many differences between human beings and God on Judgment Day is that God does not have to worry about what is going to happen the day after Judgment Day.  Our decisions do not take place at the end of time, but rather in the midst of the on-going stream of time, so that what we do today affects how others will respond tomorrow and thereafter.” ^[36]

In other words, we as human beings not only have to concern ourselves with justice, to some extent, but we also have to concern ourselves with systemic incentive structures that will impact human conduct in the future in a positive way.  Besides the dilemma of pitting one type of justice against another, sometimes, we may have to make compromises between justice, however we conceptualize that term, and freedom, general economic prosperity, general safety, and/or other worthy goals sought to be achieved through the law.  Pursuing social justice may throw a giant monkey wrench into the economic works causing system-wide breakdown.  Russia would be just one example of such an occurrence. 

Is it really “just” to impose, through the law, economic make-up calls to benefit some people currently in the name of “social justice,” if the overall effect over time is to create generalized poverty for our posterity because of the resulting damage to systemic economic incentive structures?  Again, this is not just an academic question.  Russia has already tried it and reaped a very bitter economic and social harvest as a result. 

Justice At All Costs?  No, There Are Practical Limits To The Law

Sowell says:

“...‘justice at all costs’ is not justice.  What, after all, is an injustice but the arbitrary imposition of a cost – whether economic, psychic, or other – on an innocent person?  And if correcting this injustice imposes another arbitrary cost on another innocent person, is that not also an injustice?” ^[37]

With inherent human frailties, innumerable physical constraints, and inherently conflicting goals and objectives, the best we can reasonably hope to accomplish is to develop a system of general rules and procedures which, all things considered, optimizes our mix of freedom and overall societal justice, reasonably minimizes (but can never totally eliminate) injustice, and promotes the greatest amount of peace, harmony, order and prosperity throughout society.  But unfortunately, we are easily tempted to go farther than this with the law and to start trying to play God with it when we are very ill-equipped to do so.

General Justice vs. Perfect Individual Justice (or Cosmic Justice)

For the sake of making the law simple, knowable, and predictable, it must be comprised of rules that seek to achieve the best general results with few exceptions.  On the other hand, if we were to try to achieve cosmic justice on an individual basis, we would have to take a microscopic view of everything in each case creating exception after exception which, in turn, would gobble up the general rule by making the law overly complex, unknowable and unpredictable.  And what good is the law when we cannot clearly discern where the various lines or limits are?

James Madison wisely observed:

“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood...or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.  Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?” ^[38]

Unfortunately it is a fact of life that there is not always a satisfying solution to every problem.  We know that any human system of law will allow some injustice to exist and when such injustices are perceived, it seems to be our habit to clamor for a perfect solution to the problem as if it were really possible to do so.  But we should not be so quick to change the rules so as to try to totally eliminate the possibility of that particular injustice ever happening again.  This is because in the process, we will incur horrendous opportunity costs and probably cause even more injustice to occur in other sectors, as I will try to explain further below. 

First, let me define “opportunity costs.”  In economics, these represent the net benefits we forego by allocating scarce resources towards one particular venture instead of somewhere else.   For example, if I had $20,000 to spend and decided to spend it on a new car, the opportunity costs to that decision would be all of the foregone benefits I could have derived from that money had I spent it elsewhere.  I could have invested in the stock market to save for retirement and earn future income; I could have renovated my house; etc.  But by spending it the way I did, the cost I paid was all of the foregone benefits I could have enjoyed had I spent it differently.  Thus, to spend the money wisely, I should look for the option which produces the most net benefits relative to any other option open to me.  Applying that concept to the law, we should avoid focusing entirely on any particular legal goal or benefit we hope to achieve (i.e. freedom, justice, rights, economic prosperity, peace, order, safety, etc.) to the exclusion of all others.  Rather, we should choose the legal path which optimizes our mix of these, and other things.

The War Analogy–There Will Always Be Some Unavoidable Casualties

Perhaps an appropriate analogy to further explain these ideas would be that of war.  Imagine a general who would never enter any battle unless he knew with certainty that every man under his command would survive the battle.  Such a general would never engage the enemy for fear of losing some men in the process.  If the military were filled with such decision makers, no battles would ever be fought and we would lose the war, and our freedoms, by default. 

In reality, generals have to be willing to sacrifice many innocent lives for the sake of saving more innocent lives and defending the mother country.  Of necessity, they must do their own cost/benefit analyses and try to accomplish the most societal good at the least societal cost and leave the ultimate judgment of perfect justice, reward and punishment to God.

I remember as a boy seeing a war movie involving a battleship.  The ship was hit by a torpedo and it was taking on water in several compartments.  The camera was positioned at the hatchway of one such compartment and I could see waist-high water quickly rising on several men struggling to get to the hatchway in order to escape to safety.  All of a sudden my view of the scene was closed off by the hatchway door being slammed shut and the locking mechanism turned in order to seal off that compartment.  I remember feeling a sense of horror for the men behind that hatchway door but upon further reflection, I could see that there was no other reasonable choice to be made under the circumstances.  Unfortunately, sometimes in life instead of having to choose the better of two goods, we must choose the lesser of two evils–and this is never a very satisfying proposition.

The man who closed the hatch could have given those men a chance to escape that compartment, but at the possible cost of allowing the entire ship to sink causing all of the men on board to lose their lives and not just the unlucky ones in that flooded compartment.  Was it inherently fair and just that those particular men locked inside the compartment should die while the others on board survived?  Not particularly.  But considering the constraints involved, the best the Navy could do was to enact rules of operation that would maximize the potential for survival of the ship and to minimize the potential for the loss of life.  It was humanly impossible to come up with a set of rules and procedures that would produce cosmic or perfect justice under the constraints of the particular circumstances present. 

The man who closed and locked that hatchway door will probably have nightmares for the rest of his life over what he did, but he made the best practical decision open to him under the circumstances.   He couldn’t afford to wax philosophic regarding cosmic justice – the best he could practically deal with was damage control and maximizing general justice to the survivors.

And so it is with many of the rules of criminal law.  The criminal may have been raised in terrible circumstances that contributed to his criminal tendencies.  He may have been abused during his childhood; he may have been terrorized in his neighborhood; he may have grown up in abject poverty.  But be that as it may, for the sake of promoting safety and peace throughout society as a whole, we must expect certain levels of civil behavior from all members of society regardless of their backgrounds.  Human systems are pretty good at promoting damage control and generalized justice, but not so good at promoting perfect justice to every individual involved.

Critical Thinking

During your life you will probably be exposed to many people – teachers, students, writers, politicians, etc. – who will passionately argue for legal policy changes for the sake of producing what really amounts to cosmic, social, or perfect individual justice.  Every time somebody falls through a crack in the system and injustice follows, you can expect the story to make the nightly news.  Why?  Because they too seem inclined towards the pursuit of cosmic justice.  They want you to rise up en masse to demand that the law be changed, and many times the tactic works. 

But before being so easily persuaded, sit back and evaluate the situation a little more carefully.  Ask yourself such questions as these: “Considering human nature and inherent constraints, what practical consequences could one expect to see if we were to make the proposed change?   Would these consequences be all good?  If certain negative consequences can be foreseen, how do they stack up against the positive consequences we can reasonably expect to achieve from the change?  Do the expected costs (including opportunity costs) outweigh the expected benefits or vice versa?” 

Force yourself to stand back a little ways from the idealism and emotion expressed and take a pragmatic look at the situation with a wide peripheral view that is long term in nature.  Take the type of blinders off that so often constrict our vision when our heartstrings are tugged.  It is good to be compassionate and pursue high ideals through the exercise of individual conscience and choice, but let us never lose sight of the practical realities and limitations we face in designing and implementing a forceful legal system to pursue those ideals. 

The law cannot effectively produce all of the good we wish it to.  Not everything that is good or bad should become the subject of human or positive law.  Some things are beyond our reach and in our attempt to reach for them, we may forfeit other good things that were actually achievable.  It is easy for us to go too far with the law and do more net harm than good – all while giving ourselves self-congratulatory pats on our backs for our basic humanity and goodness.  Let us not be so content with what sometimes turn out to be only hollow, and perhaps even counterproductive, symbolic gestures. 

The Rubik’s Cube Analogy

The law creates many complex interrelationships like those involved in a Rubik’s Cube.  It is impossible to move one square on the cube without affecting other squares as well.  Nothing can be done in isolation, yet it is very easy for us to look at things in isolation and ignore what happens elsewhere on the societal Rubik’s Cube -- when we tinker with some of the legal squares on that cube, other types of squares representing economics, prosperity, freedom, peace, safety, order, race relations, etc. may be inadvertently thrown out of kilter in the process.   These are known as “unintended side effects” and “perverse incentives” – both of which are created when people fail to see that certain things are inextricably connected.  We need to think broadly before we decide on the propriety of any particular legal policy since any policy has more than just one consequence.

Conclusions Regarding the Conflicts Among the Various Subcategories of “Justice” and Other Worthy Legal Goals

So it may not be “just” in a cosmic sense for Bill Gates to have as much wealth as he does relative to other members of society, but that does not mean it would be economically wise to try to change things through the law by “cutting him down to size,” so to speak.  The vast mass of Americans (including you and me and our posterity) would probably end up to be net losers in the long run, just like the Russians, were we to be so rashly reactive and pursue our perceptions of social justice categorically and absolutely at all costs.  And I am not so sure “justice” would be the real motivating force behind such inclinations – it might very well be petty greed and envy that truly motivates us.

Sowell said: “Envy was once considered to be one of the seven deadly sins before it became one of the most admired virtues under its new name, ‘social justice’.” ^[39]

Personally, I don’t begrudge Bill Gates and others whose wealth far exceeds my own.  I am content to leave to God the ultimate judgment of the moral obligations inherent in that wealth.  Through the incentives inherent in a free market system, geniuses (for whom I am very grateful) have invented and created things that have elevated most of our standards of living beyond what even the richest kings could enjoy not too long ago.  Within almost all of our reach, are personal computers that are far more powerful than those used to get men to the moon and back.  At our finger tips through the world wide web, we each have access to a wealth of information that we can use to better our individual lives.  Science has cured most of the childhood diseases and continues to make our lives better. 

And relatively speaking, how poor really are our “poor?”  In America, our “poor” are far more likely to be obese than malnourished.  Most have access to cars, televisions, microwaves, etc.

It seems to be an unfortunate part of human nature to only want to look above us and feel cheated because others have more than we, rather than look below us at the billions who have far less and to feel grateful as a result.  We tend to justify our resentments under the notion of “social justice.”  But if our own notion of social justice were applied against us by those who are below us, we too would have to be humbled by the force of law for it could be argued that we in America each have more than our fair share considering the world as a whole.  And just like Bill Gates, we too, have individual moral obligations regarding our relative surpluses.

“At a minimum, it is necessary to understand the distinction between established prospective rules for the behavior of flesh-and-blood human beings toward one another and trying ad hoc [i.e. for this case only] to retrospectively adjust the cosmos to our tastes. 

“Not only does cosmic justice differ from traditional justice, and conflict with it, more momentously cosmic justice is irreconcilable with personal freedom based on the rule of law.  Traditional justice can be mass-produced by impersonal prospective rules governing the interactions of flesh-and-blood human beings, but cosmic [or social] justice must be hand-made by holders of power who impose their own decisions on how these flesh-and-blood individuals should be categorized into abstractions [e.g. rich, poor, advantaged, disadvantaged, etc.] and how these abstractions should then be forcibly configured to fit the vision of the power-holders.  Merely the power to select beneficiaries is an enormous power, for it is also the power to select victims – and to reduce both to the role of supplicants of those who hold this power.” ^[40]

“But, whatever one’s vision of a just world, what is crucial is to recognize that (1) different visions lead to radically different practical policies, that (2) we shall continue to talk past one another so long as we do not recognize that cosmic justice changes the very meaning of the plainest words, and that (3) whatever we choose to do, it should be based on a clear understanding of the costs and dangers of the actual alternatives, not simply the heady feeling of exaltation produced by particular words or visions.” ^[41]

The Fable of the Dog and the Bone

“There is an ancient fable about a dog with a bone in his mouth.  He looked down into a pool of water and saw a reflection that looked to him like another dog with another bone – and that other bone seemed to be larger than his bone.  Determined to get the other bone instead, the dog opened his mouth and prepared to jump into the water.  This of course caused his own bone to drop into the water and be lost.  Cosmic justice is much like that illusory bone and it too can cause us to lose what is attainable in quest of the unattainable.” ^[42]

The Need for Balanced Perspective

I find it interesting and disturbing when I hear people criticize this country for one inadequacy after another.  Are we perfect?  Is there really “justice for all?”  Or course not, but we should never lose sight of the overall forest for the trees -- one tree being injustice, another, inequality, etc.  For as William Bennett said, whatever may be America’s many faults, we should never forget that

 “we have provided more freedom to more people than any nation in the history of mankind; that we have provided a greater degree of equality to more people than any nation in the history of mankind; that we have created more prosperity, and spread it more widely, than any nation in the history of mankind; that we have brought more justice to more people than any nation in the history of mankind; that our open, tolerant, prosperous, peaceable society is the marvel and envy of the ages.” ^[43]

In short, when comparing the fruits of our efforts to other parts of the globe, our imperfect attempt to optimize our mix of societal benefits, should breed national optimism and pride, not pessimism and contempt.  Americans who contemptuously rail against our country for this imperfection or that, show quite a disproportionate and imbalanced perspective.  We should all be careful not to be taken in by it.

If you personally sense injustices before your eyes and feel a moral obligation to address them by expending personal resources of your own free will and choice, then by all means, do so.  But you need to be very careful before deciding to use the force of law in such a venture rather than just voluntary individual or collective action.  The dynamics of things differ dramatically depending upon whether (1) free will and choice or (2) force, is used.  As cautioned by our economist friends, we need to fully consider perverse incentives, opportunity costs, and probable unintended side effects before arriving at our ultimate conclusions.  

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Professor Lewis graduated from the J. Reuben Clark School of Law at BYU and currently teaches Business Law at Southern Utah University.

Ideas and Society Archive

Constitutional  Primer Introduction

Constitutional Primer #1: The Constitutional Convention and the Meaning of Liberty

Constitutional Primer #2:Federalism and the Limitation of Powers

Constitutional Primer #3
The Proper Role of the Judiciary

Constitutional Primer #4
Virtue & Morality: Freedom’s Prerequisites

Constitutional Primer #5
The 14^th Amendment and “Selective Incorporation”

Constitutional Primer #6
The Commerce Clause And Other Power-Expanding Mechanisms

Constitutional Primer #7 Property Rights