The Pity Party (30 page)

The Court ruled unanimously in favor of the Sacketts. The 9–0 vote meant that even the four justices appointed by Democratic presidents—Stephen Breyer and Ruth Bader Ginsburg, nominated by Clinton; and Sonia Sotomayor and Elena Kagan, nominated by Obama—ignored clear instructions from Obama's Justice Department and the
New York Times
, both of which wanted the EPA's position vindicated. The
Times
editorial warned that “those supporting the Sacketts with friend-of-the-court briefs are corporate Goliaths like General Electric and real estate developers eager to weaken the EPA's ability to protect wetlands and waterways under the federal Clean Water Act.” With a degree of understatement divorced from the facts of the case, and the realities of modern regulatory governance more generally, the
Times
contended that compliance orders private citizens cannot challenge in court “are useful because they allow the agency to press landowners to negotiate about mitigating harms.”
¹⁴
The Court had the sense and decency to grasp that the negotiating leverage the
Times
urged it to preserve for the EPA was comparable to that wielded by an extortionist. In a concurring opinion Justice Alito called on Congress to revise the “notoriously unclear” Clean Water Act. As it stands, “Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act. . . .”
¹⁵

What's scariest about stories like the Sacketts' or Marty the Magician's is that the villains come across as functionaries rather than tyrants. No one favors abused animals or dirty water, of course, so it makes sense for legislators to pass laws to mitigate those blights. Because the laws have to be enforced, and because Congress cannot anticipate every obstacle to achieving their stated goals, it confers both power and latitude on the agencies assigned to secure compliance from those in a position either to further or impede the laws' goals.

It's just that one thing leads to another, and then another. Laws enacted to prevent the big shot's damaging actions become the basis for policies superintending the little guy's innocuous ones. Having public officials telling citizens what they may and may not do is a means to an end, but it also appears that for at least a subset of those drawn to careers in government, bossing people around becomes an end in itself. Fortified with the moral self-confidence that comes from pursuing laudable aims, some bureaucrats view their demands on ordinary folks as justifiable measures that must be taken against recalcitrant obstacles to progress.

Furthermore, some theorists argue that apart from any broader social impacts, the best interests of the people being bossed around can justify issuing and enforcing edicts. Philosophy professor Sarah Conly, author of
Against Autonomy: Justifying Coercive Paternalism
, believes “sometimes we need to be stopped from doing foolish stuff” because “we often don't think very clearly when it comes to choosing the best means to attain our ends.” There's no need to be overly worried, however, that coercive paternalism will lead to intrusive, bullying government. Enacting “successful paternalistic laws” on the basis of prudently weighed costs and benefits “is something the government has the resources to do,” meaning not just the money and power but also the expertise and sagacity.
¹⁶

Compassion figures into this equation in two senses. First, liberalism's alliance of experts and victims will call upon experts to alleviate the suffering endured by the victims of ambient social problems, but also of those victimized by the limitations of their own decision making. “In the old days we used to blame people for acting imprudently,” writes Conly, “and say that since their bad choices were their own fault, they deserved to suffer the consequences.” Now, however, the expertise of the experts encompasses an understanding of the difficulties nonexperts have in making smart decisions. Laymen are too optimistic to be prudent, too shortsighted to defer gratification, too inertial to relinquish an old way of doing things when a better one is presented to them. Because of such insights, “we see that these errors aren't a function of bad character, but of our shared cognitive inheritance. The proper reaction is not blame, but an impulse to help one another.”
¹⁷
Helping one another does not mean reciprocity between experts and victims, of course, since the latter have nothing to offer the former in trade. Rather, it means the victims, of both social circumstances and their own decision-making insufficiencies, will come together to delegate power to experts who will spare each victim from suffering the consequences otherwise likely to be inflicted by forces beyond his control.

Second, because the welfare state socializes costs of individuals' bad decisions, costs formerly confined to the people who made those decisions, we all become victims of their mistakes. This encumbrance justifies state intervention to protect us from their follies. According to journalist Ben Adler, people who “fall ill from smoking or fatty food, cost the rest of us money. We pay their emergency room bill, their Medicare bills or their Social Security disability insurance.” Those who bristle against such government experts protecting individuals and the society that underwrites their welfare from the risks of heedless lifestyles betray a fallacy, one that, in Adler's words, “clearly expresses a fundamental tenet of conservative/libertarian thinking: that engaging in risky behavior with serious social costs is an entitlement.”
¹⁸
But since the elaboration of the welfare state means that there are fewer and fewer behaviors that do
not
have serious social costs, every augmentation of government power winds up strengthening the case for additional augmentations.

“It's not always worth it [for government experts] to intervene,” writes Conly, “but sometimes, where the costs are small and the benefit is large, it is.” This makes it sounds like we're confining the discussion to clear-cut cases, ones that rest lightly on individuals by curtailing their freedom in small ways, exercised at the margins of their lives. But perhaps not. Conly's next book project is
One: Do We Have a Right to More Children?
It will argue, “If population growth is sufficiently dangerous, it is fair for us to impose restrictions on how many children we can give birth to.”
¹⁹

Clearly, the humanitarian impulses to reform and elevate society lend themselves to other, more problematic motives. “It would be better to live under robber barons than under omnipotent moral busybodies,” C. S. Lewis wrote. “The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.”
²⁰

Another literary scholar, more strongly inclined to give social reformers the benefit of the doubt, reached the same gloomy conclusion about social engineering's capacity to validate abuse. In 1947 Lionel Trilling told a college audience that “the world is ripe” for “great changes in our social system.” The alternatives were “greater social liberality” or “a terrible social niggardliness,” and, “We all know which of those directions we want.” Precisely because of this consensus, however, he thought it imperative to remind his listeners that “the moral passions are even more willful and imperious and impatient than the self-seeking passions. All history is at one in telling us that their tendency is to be not only liberating but also restrictive.” Thus,

we must be aware of the dangers which lie in our most generous wishes. Some paradox of our natures leads us, when once we have made our fellow men the objects of our enlightened interest, to go on to make them the objects of our pity, then of our wisdom, ultimately of our coercion.
²¹

For many conservatives—the ones who take a no-retreat, no-surrender approach to politics—“compassionate conservatism” sounded like a bad idea from the start. From the vantage point that regards governmentalized compassion as immoral, self-righteous bullying, it is imperative for conservatives to oppose that endeavor root and branch,
not
to fashion a compromise with it or devise a more benign version of it. In this view, once conservatives accept the idea that compassion is a political virtue, not just a moral one, they invite liberals to judge them according to liberal criteria, an invitation liberals will eagerly accept. What's left of compassionate conservatism today, some fifteen years after George W. Bush inserted it into America's political vocabulary, is indeed its use to taunt conservatives for opposing rather than supporting the liberal agenda. One journalist singled out a Republican senator who argued for extending unemployment benefits in 2014 as “the last compassionate conservative,” a compliment that was really a vehicle for disparaging the GOP in general for being “wholly unconcerned with the struggles of working-class Americans.”
²²

Despite this intra-Right dissension over compassionate conservatism, its champions and detractors agree (1) that the distinction between state and society is indispensable to making modernity coherent and feasible; and (2) that the effect, and perhaps the intent, of American liberalism since the New Deal has been to break down rather than build up the wall between the two. Recall Hubert Humphrey's declaration that how it treats the young, old, and suffering is the moral test of government. Make one change—substitute “society” for “government”—and most conservatives would endorse that proposition enthusiastically. What leaves conservatives apprehensive is the strong suggestion that liberalism treats the one question as the only part of the other that matters: the moral test of a society is how
its government
treats the needy, which trivializes every nongovernmental aspect of society that prevents and alleviates suffering. Deval Patrick, the Democratic governor of Massachusetts, said in 2012 that government is “just the name we give to the things we choose to do together.”
²³
The narrator's script in a video welcoming delegates to that year's Democratic National Convention in Charlotte, North Carolina, went farther:

We
are
committed to all people. We
do
believe you can use government in a good way. Government is the only thing we all belong to. We're different churches, different clubs, but we're together as a part of our city, or our county, or our state, and our nation.
²⁴

Where the conservative opponent and proponent of compassionate conservatism differ is that the former's objections to liberal compassion are couched in terms of its aggrandizement of the state, while the latter's emphasize the danger of debilitating society. Compassionate conservatism's advocates make the further, practical point that conservative politicians have no choice but to appeal to voters as they are, rather than as conservatives think they should be. Decades of liberal speeches and journalism about heartless conservatives have altered popular assumptions, and any conservative who hopes to win a hearing, much less an election, does not have the option of ignoring charges in the electorate's expectations and assumptions, no matter how regrettable he considers those changes. As the late Michael S. Joyce, an influential conservative thinker and donor, told congressional Republicans in 1996, if budget and program cuts were the only item on the menu conservatives placed before voters, it will “play right into liberalism's caricature of us as heartless, uncaring conservatives.”
²⁵

During Ronald Reagan's eight years in the White House, federal outlays on human resources programs increased (after adjusting for inflation and population growth) by 9.8 percent. They had always grown at a faster rate before 1981, however, so liberals spent the 1980s denouncing Reagan's “savage cuts” to social programs. Vice President George H. W. Bush understood the necessity to respond to these accusations and assumptions about harsh Republicans if his 1988 presidential campaign was to succeed. Michael Dukakis had said in his acceptance speech at the Democratic convention that the election that year was about competence, not ideology. It was Bush, however, who came to devote his presidency to the proposition put forward by the man he defeated. The famous line from
his
acceptance speech was the call for “a kinder, gentler nation.” He elaborated this point in his inaugural address, contending that the “high moral principle of our time” is “to make kinder the face of the Nation and gentler the face of the world.” The chastened response to this imperative, he continued, was to regard liberalism as well-meaning but unrealistic.

The old solution, the old way, was to think that public money alone could end [social] problems. But we have learned that that is not so. And in any case, our funds are low. We have a deficit to bring down. We have more will than wallet, but will is what we need.
²⁶

Shortly after Bush finished his inaugural address, congressional Democrats, holding majorities in both houses and convinced that where there's a will there's a wallet, set out to make the new president break his campaign pledge not to raise taxes. Bush's capitulation to them in 1990 did more than any other decision he made to demoralize his political base and imperil his reelection. Conservatives, then and ever since, have disparaged Bush as a committed moderate who spent eight vice presidential years pretending to be a Reagan Republican in order to subvert the Reagan Revolution in his own presidency.

The seeds of the Gingrich Revolution, which delivered both houses of Congress to the GOP in 1994 for the first time in forty years, were sown in conservatives' denunciations of that tax increase. By the time George W. Bush announced his presidential campaign in 1999, political calculations once more dictated the need to rebut liberals' accusations of heartlessness, this time leveled against Newt Gingrich and his allies. (Because his genial persona blunted the criticism his domestic agenda was mean-spirited, Reagan's frustrated opponents had called him the “Teflon president.” No one ever called Gingrich the Teflon Speaker.)