Social Justice vs. Civil Justice

 

Miller Upton

      Miller Upton is President Emeritus of Beloit College, former Dean of the School of Business at Washington University in St. Louis, and former President of the American Finance Association.

      Any objective observer of long-term political trends in the United States will have to concede that the federal government is moving inexorably toward becoming a national socialist republic as opposed to the federal capitalist republic intended by the framers of the Constitution. An editorial in a recent issue of The Economist even poses the question, albeit with tongue in cheek, as to whether President George W. Bush has become a socialist by his support of the social spending legislation proposed by a Republican Congress.

      The time has long since past for “we the people of the United States” to decide if we want this change in our governmental structure and are willing to accept the unconstitutional manner in which it is being brought about. Precisely, do we want our central government to become national in nature and committed through its laws to the redistribution of wealth among its citizens as a presumed means of achieving social justice? Or do we want to adhere to the original Constitutional concept of a federal central government with strictly delineated powers and based upon the principle of unalienable individual rights as to life, liberty, property and equal justice under the law?

      From another point of view, we need to ask ourselves if we want to become like the older nation states from which we evolved that seem to adhere in their psyche to the age-old notion that authority devolves from the top down. Or do we want to hold fast to those revolutionary concepts of our founding fathers which in a very short space of time catapulted us to being the world’s most creative, productive, and charitable nation: that sovereignty resides with the individual citizen, that governments receive their powers from the governed, that a decentralized structure of government is more protective of these democratic requisites?

      Two factors have contributed most to our drift away from our original Constitutional foundation. One is passive acceptance on our part of the continuing amendment of the Constitution by federal judges from the Supreme Court on down through their interpretation of the law in keeping with their own ideological bent. The legal amendment process provided by Article V of the Constitution is thus bypassed. And when this abuse of the Constitution goes without challenge we end up being a government of men and not of laws. There should be of little wonder that the appointment of our justices has become a hostile political confrontation in every case. The political ideology of the judicial candidate becomes the dominant consideration, for the law becomes what the sitting justices want it to be instead of what the Constitution says based upon original intent.

      The second factor is the extent to which the goal of social justice has influenced much of the legislation that was passed in the 20th century. There can be little doubt that “social justice” has always been the mantra of socialist thought and politics. One of the best references in support of this statement is Richard Rorty’s book, Achieving Our Country, published in 1998. He disclaims effectively being a Communist but proudly associates himself with what he calls the “reformist left,” which he equates with socialism. In this regard he speaks glowingly and approvingly of the utopian dreams of Walt Whitman and John Dewey to the effect that:

They wanted that utopian America to replace God as the unconditional object of desire. They wanted the struggle for social justice to be the country’s animating principle, the nation’s soul.

Thereafter, throughout the book, he makes reference to “social justice” as the essential concern of the “reformist left” and, by implication, socialist doctrine.

      Remarkably, what the socialists and those general citizens influenced by their thinking fail to recognize is that whereas concern for social justice should be an animating principle for a democratically organized nation it cannot be a legislative concern for the government of that nation. In their zeal, born of a humanitarian spirit, to overcome the inequalities of birth and circumstance, they fail to recognize that laws that favor one group of citizens over another violate the most essential principle of a true democracy: equal justice under the law. Concern for social justice must never be allowed to trump such civil justice if a true democratic government is to prevail. In short, “democratic socialism” is an oxymoron, unless one believes in the legitimacy of the tyrannical abuse of civil justice. Support of laws that discriminate against one citizen in favor of another emanates from an authoritarian mentality willing to use the full force of government to achieve its will. But by what right in a society based on equality under the law can one group of citizens force another group of citizens to share their wealth with others? Tyranny is as much an evil when exercised under democratic procedures as when imposed by an individual or oligarchy!

      Understandably, the socialist left has a different understanding of “democracy.” Rorty quotes John Dewey to the effect that: “Democracy is neither a form of government nor a social expediency, but a metaphysics of the relation of man and his experience in nature.” And he quotes Whitman to the effect that: “‘Democracy’ is a great word, whose history remains unwritten, because that history has yet to be enacted.” These people conceive of “democracy” in an ethereal sense, having more to do with the ethos of a nation than with its government. Due to one or more of a possible variety of motivations—genuine compassion, idealism, envy, hatred—they are more concerned with the redistribution of wealth and power than with civil justice. They reason in terms of static social groups—the poor, the wealthy, the working class, the homeless—failing to recognize that a free society and free economy produce over time a dynamic community in which individuals within these categories change places. They think in terms of “human rights” instead of “individual rights,” failing to accept the fact that humanity has no rights, only individuals. Theirs is a fatalistic, static secular religion which breeds divisiveness and group hostility. They preach social harmony but practice class confrontation and conflict.

      We need to be clear as to what we want our central government to be. Should it be an instrument of social order within the context of individual freedom and equality? Or is it to be an instrument of social change, inevitably favoring one segment of society over another? The essential role of any government is to provide for civil order by the creation and enforcing of laws essential to such order. It follows that the next responsibility of a true democratic government is to assure every citizen equality under the law: civil justice. Any violation of this equality violates an individual’s civil right. And the more such rights are violated and the government becomes ever more authoritanan our civil liberties become threatened. This fact seems to be lost in the socialist’s myopic quest for social justice through legislation. No citizen within a true democracy, whether it be direct or representative, can be granted a special right of entitlement.

      Where the two goals of social justice and civil justice can come together is in seeking to equalize individual opportunity to the fullest extent possible without impinging upon the sine qua non of civil justice. The availability and quality of education is paramount in this regard. Social justice is an essential concern for society at large, for we are all born into different circumstances and with different talents and opportunities. The earlier quote from Rorty to the effect that social justice must be “the country’s animating principle” cannot be denied, provided the word “country” is not used as a synonym for “government.” Too often we engage in semantic confusion through the interchangeable use of the words “society,’’ “country,” “government” and “public.” For example, we refer to “government service” as “public service,” failing to acknowledge that all legitimate occupations serve the public.

      But while social justice must be a paramount concern of society at large, it must not be a legislative concern of a democratic government, for much impinges on civil justice. It must be recognized that a humane society is grounded in social justice while a democratic government is founded on civil justice. Such a government must be concerned about the state of social justice within its society and do what it can to advance it without discriminating among its citizens. In this sense, promoting equality of opportunity without violating civil justice should be a dominant consideration.

      All religious organizations and non-governmental social service agencies should concentrate on serving local needs and cease lobbying the central government to assume their professed responsibility. And all individuals and private organizations need to be as generous as possible in support of the non-governmental agencies and the special needs of particular individuals and groups. Such voluntary citizen action, starting with the individual family, is the only alternative to pressure for the intrusion of government by way of social engineering and the concomitant violation of civil justice and our individual civil rights. Private social service agencies cannot serve the crucial social need of providing for civil order; only governments can do that. And a government must not undermine its crucial service in this regard by assuming the role of a social service agency. Only by such clear division of responsibility and authority can a society hope to realize a measure of compassion within order and community with civility.

      In his monumental study of contemporary social life in the United States, Bowling Alone, Robert Putnam clearly and thoroughly documents the decline of what he calls “social capital”—those voluntary organizations and groups that contribute so much to the individual and society at large.

The ebbing of community over the last several years has been silent and deceptive. We notice its effect in the strained interstices of our private lives and in the degradation of our public life. But the most serious consequences are reminiscent of the old parlor puzzle: “What’s missing from this picture”?

In short, what can be done about it?

      As Putnam points out there is probably no one answer. In trying to identify the principal causes of such “ebbing of community” he places great importance on the increased mobility of the people, urban sprawl, and TV. But the thrust of this article suggests that a major contributing factor is the abuse of civil justice by laws that favor one citizen or group of citizens over another. Such laws spawn divisiveness, not community. Such divisiveness is blatantly evidenced during election campaigns when candidates and their parties play group against group and make irresponsible promises of what they will do for particular groups through government programs once elected. The irony is that no one seems to recognize, much less complain, that such programs while favoring one group of citizens simultaneously violate the civil rights of others. The19th century French lawyer and economist, Frederic Bastiat, captures the point so clearly yet succinctly when he states: “The State is the great fictitious entity by which everyone seeks to live at the expense of others.”

      Is there any wonder that hostility within our land abounds, that career politicians put party advantage and their election ahead of the country’s welfare, that political campaigns keep getting longer and longer in time, that we continue to experience declines in voter turnout, and that special interest money continues to increase in support of the major political parties? The best way to bring about campaign finance reform would be to obviate the need for special interest lobbying by preventing government from indulging in favored giveaways, be they designed to deal with concern for social justice or not. Our democracy is under stress and arguably because of our misuse of the authority of our federal government. In a nation state committed to civil rights based on civil justice the time is long overdue for a Constitutional amendment which prevents Congress from passing special interest legislation, even under the pressure for social justice. We may already have gone too far down the road of national socialism to turn back, but for a nation conceived in liberty and committed to individual civil rights based upon civil justice “the people” should at least be given the chance in keeping with the Constitution to let their beliefs be known.

      Putnam goes on to say that: “Government authority should be decentralized as far as possible to bring decisions to smaller, local jurisdictions, while recognizing and offsetting the potential negative effect of that decentralization on equality and distribution.” In short, a federal republic as established by our Constitution is to be favored over a national republic. Each state in the federation is free to experiment with any form of governmental approach with the one proviso that it be truly democratic in principle and practice. In this way a governing laboratory throughout the nation is provided, with each state having the option of learning from another. At the same time the central government is protected as a federal republic and from becoming a national authoritarian republic.

      The major thrust of our Constitution is to protect the civil liberty of the individual citizen—in speech, in association, in religion, in ownership of property: to safeguard the citizen from the tyranny of government, even democratic government. And although there is no place in the Constitution that specifically establishes equality under the law for all citizens at the national level the intent has to be assumed since there can be no civil liberty for all if there is not such equality for all. The Fourteenth Amendment to our Constitution states that no State “shall deny to any person within its jurisdiction the equal protection of the laws,” and so by implication such equality must apply to the federal government as well. Logic, therefore, dictates that the federal government created by the Constitution must never establish laws that favor one group of citizens, even in its quest for social justice, for then violates its essential commitment to civil liberty for all.

      The conclusion is clear: Compulsory redistribution of wealth under the rubric of “social justice” is neither compassionate nor just but simply a form of political authoritarianism with all the political and social evils inevitably resulting therefrom. If we are to safeguard our constitutional federal republic, concern for civil justice must take precedence over social justice in all matters of legislative concern.     Ω