Opinion

The end of unions?

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Richard Epstein
Senior Fellow, Hoover Institution
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      Richard Epstein

      Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011), The Case against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).

The age of big government is now upon us. The question is how to respond to this daunting reality. One possible approach is prudential acquiescence to the inevitable. Conservatives could work toward incremental reform within today’s political paradigm. The Hoover Institution’s Peter Berkowitz offers this advice in his thoughtful column in The Wall Street Journal. Libertarians, in particular, must “absorb” the lesson that frontal assaults on New Deal-era policies are out. He writes:

[C]onservatives must redouble their efforts to reform sloppy and incompetent government and resist government’s inherent expansionist tendencies and progressivism’s reflexive leveling proclivities. But to undertake to dismantle or even substantially roll back the welfare and regulatory state reflects a distinctly unconservative refusal to ground political goals in political realities.

 

Conservatives can and should focus on restraining spending, reducing regulation, reforming the tax code, and generally reining in our sprawling federal government. But conservatives should retire misleading talk of small government. Instead, they should think and speak in terms of limited government.

I fear the downside of Berkowitz’s counsel of moderation. For starters, no one can police Berkowitz’s elusive line between “small” and “limited” government. At its core, Berkowitz’s wise counsel exposes the Achilles’ heel of all conservative thought, which can be found in the writings of such notables as David Brooks and the late Russell Kirk. Their desire to “conserve” the best of the status quo offers no normative explanation of which institutions and practices are worthy of intellectual respect and which are not. No one doubts that politics depends on the art of compromise. But compromise only works for politicians who know where they want to go and how to get there.

The call for limited government doesn’t start with the radical proposition to disband the army, fire the police, or close public highways. Rather, it relies on the theory of public, or collective, goods. The sound theory of limited government uses the state to provide those essential public goods that ordinary individuals, acting either alone or in combination, cannot supply for themselves in voluntary markets. Individuals and firms can effectively purchase food, clothing, and shelter in competitive markets, which are the best way to match buyers with sellers, and employers with employees. The sellers who try to raise prices above the competitive levels will lose their customer base. The firms that try to reduce their wages below competitive levels will lose their employees. The result is, in general, the optimal social outcome.

Armed with this insight, the appropriate intellectual approach toward politics always involves this two-step inquiry: first, figure out the desirable social policy; second, figure out the low-cost way to overcome obstacles to achieve this social outcome. The great danger of politics is that it waters down principled argument in order to secure a political compromise. But these compromises must be accepted as such: the willingness to take a middle position because the preferred position is not politically attainable. They should never be defended as though they represent the best intellectual solution. To do so is to concede too much to the progressive agenda, which causes the conservative or libertarian reformer to sound evasive and hypocritical, uninformed and foolish.