Still Toying with "Tommy": On Kipling and Prejudice

It is a coincidence that today happens to be Martin Luther King, Jr., Day and I post a short blog note -- my first entry in some time -- on prejudice. My reflections are not on racial prejudice in the United States. There is unfortunately much of that still to be reflected on and rectified. What stimulates my thoughts is the poetry of a perhaps unlikely source: Rudyard Kipling.

In the estimation of George Orwell, "Kipling is a jingo imperialist, he is morally insensitive and aesthetically disgusting" ("Rudyard Kipling," Collection of Essays, 117). Orwell was a contemporary and published this essay in 1942, six years after Kipling's death. Orwell was also a writer of powerful pen and deep cultural observation. I, however, find what little I know of Kipling's verse to be complex -- complex with regard to imperialism, morality, and aesthetics. More than Orwell concedes, Kipling is at times artful in his moral critique of British imperialism and social prejudice.

Rudyard Kipling, 1895

One example comes from his poem "Tommy" (1890). The speaker is a common British soldier, who was by this time already known in slang as Tommy Atkins. Such soldiers then, as now, in both the U.K., the United States, and other countries, came often from the lowest socio-economic strata of society. They were much in demand as Great Britain expanded its imperialistic ambitions ever more globally afar in the latter half of the nineteenth century. They did the dirty work that made the crown sparkle with gems and ever increasing wealth. Kipling captures in this poem through Tommy's decidedly non-Oxford dialect a tension in British imperialism that consisted of not only prejudice against those foreign others but also those domestic others.

The speaker recounts in each stanza some experience of social prejudice, exclusion, ostracism, ridicule, moral snobbery, and a myopic concern for social justice. Then he follows each main experience with a varying chorus that points out the inconsistent ways in which not only proper British society and politicians but also bar maids and common theater-goers disregard "Tommy" (the familiar form of [dis]regard) in everyday situations, but quickly revert to "Mr. Atkins" (the respectful form of needy regard) when the topic turns to patriotic parades, military deployment, celebration of national heroes, personal protection, and defense from foreign enemies.

Striking, among other things, is the way in which the speaker captures how embarrassingly quickly disregard for him and his "kind" can turn to regard, nastiness can turn to need, jeering can turn to appreciation, and rejection can turn to reception. The aesthetic oscillation between the vocal forms of address "Tommy" and "Mr. Atkins" reflects the hypocrisy, or two-facedness, of those in society who so alternate.

Particularly indicting, it seems to me today, is the way in which politicians, as the speaker reports, can outwardly advocate improved military conditions and benefits for common soldiers, yet not only do they fail to deliver but they also miss what is most important to this common solider who would stand to benefit: humane, caring, consistent treatment face-to-face. The speaker says he would go without even more food provisions if those advocating them would just treat him like a valued human being: "We'll wait for extry rations if you treat us rational. / Don't mess about the cook-room slops, but prove it to our face."

Finally, the poem ends with the speaker's chilling reflection of social and moral condemnation: "An' Tommy ain't a bloomin' fool -- you bet that Tommy sees!" If there were any doubt about whether this hypocritical, inhumane instrumentalism of imperial and social convenience were done in the dark, the speaker removes it. He not only passively suffers; he actively sees. He experiences it painfully as he describes in so many situations, but what he ends with is a self-conscious recognition of his experienced injustice that, with the exclamation point, emphasizes his emotional anguish and the implied accusation. The sense is that this injustice does not escape notice -- and it will not escape judgment either.

Sometimes we need strong voices like those of "Tommy" or "MLK" to bring to light the various forms of inhumane treatment, marginalization, and prejudice in our own midst that work against human flourishing, consistent implementation of moral values, and social harmony.

Tommy

By Rudyard Kipling

(1890; reprinted in Barrack-Room Ballads, 1892)

I went into a public 'ouse to get a pint o' beer,
The publican 'e up an' sez, "We serve no red-coats here."
The girls be'ind the bar they laughed an' giggled fit to die,
I outs into the street again an' to myself sez I:

O it's Tommy this, an' Tommy that, an' "Tommy, go away";
But it's "Thank you, Mister Atkins," when the band begins to play
The band begins to play, my boys, the band begins to play,
O it's "Thank you, Mister Atkins," when the band begins to play.

I went into a theatre as sober as could be,
They gave a drunk civilian room, but 'adn't none for me;
They sent me to the gallery or round the music-'alls,
But when it comes to fightin', Lord! they'll shove me in the stalls! 

For it's Tommy this, an' Tommy that, an' "Tommy, wait outside";
But it's "Special train for Atkins" when the trooper's on the tide
The troopship's on the tide, my boys, the troopship's on the tide,
O it's "Special train for Atkins" when the trooper's on the tide.

Yes, makin' mock o' uniforms that guard you while you sleep
Is cheaper than them uniforms, an' they're starvation cheap.
An' hustlin' drunken soldiers when they're goin' large a bit
Is five times better business than paradin' in full kit. 

Then it's Tommy this, an' Tommy that, an` Tommy, 'ow's yer soul?"
But it's "Thin red line of 'eroes" when the drums begin to roll
The drums begin to roll, my boys, the drums begin to roll,
O it's "Thin red line of 'eroes," when the drums begin to roll.

We aren't no thin red 'eroes, nor we aren't no blackguards too,
But single men in barricks, most remarkable like you;
An' if sometimes our conduck isn't all your fancy paints,
Why, single men in barricks don't grow into plaster saints; 

While it's Tommy this, an' Tommy that, an' Tommy, fall be'ind,"
But it's "Please to walk in front, sir," when there's trouble in the wind
There's trouble in the wind, my boys, there's trouble in the wind,
O it's "Please to walk in front, sir," when there's trouble in the wind.

You talk o' better food for us, an' schools, an' fires, an' all:
We'll wait for extry rations if you treat us rational.
Don't mess about the cook-room slops, but prove it to our face
The Widow's Uniform is not the soldier-man's disgrace. 

For it's Tommy this, an' Tommy that, an' Chuck him out, the brute!"
But it's "Saviour of 'is country " when the guns begin to shoot;
An' it's Tommy this, an' Tommy that, an' anything you please;
An' Tommy ain't a bloomin' fool -- you bet that Tommy sees!

Echoes of Dante in Kant

One of the great pleasures of reading and re-reading is encountering conceptual connections between authors and works that you may have never considered in common.  I had one of these experiences recently while reading a short book about Dante.  While working through the author's discussion of Monarchia and its relation to the Purgatorio, I found myself thinking that in some respects Dante's dualistic political philosophy anticipated important elements in Kant's short monograph Groundwork of the Metaphysics of Morals and his essays "What Is Enlightenment?", "The Idea for a Universal History with a Cosmopolitan Intent," and "Toward Perpetual Peace."

On the Roman Republic's Decline and U.S. Politics

While I was recently reading relatively new history of the Romans (B. Campbell, The Romans and Their World), I ran across a few passages that resonated as having more than superficial connection to the contemporary western, and especially American, political scene. What made them so vivid was that in the main these passages were quotations or paraphrases of ancient Roman historians themselves.  Let me briefly discuss three of them:  signs of a declining culture (Sallust), lust for personal political power (Florus), and moral descent and civic paralysis (Livy).

Justice as Intrinsic & Instrumental in Plato's Republic

I am interested in the relationship between justice as a means and as an end because those aspects separately and their standing with respect to one another are integrally—that is to say inseparably—involved in how we think about ethics generally and in specific cases.

For instance, recent, disturbing race-related violence by police officers toward certain citizens in the United States and then the assassination of 5 Dallas officers and the wounding of many other police and civilians raised complicated questions about what is right, fair, and valuable in itself, about the nature and extent of contemporary prejudices, and about the use of violence in service of conceptions of justice.  Similarly, the recent decision by the U.S. Justice Department and its Federal Bureau of Investigation not to indict Hillary Clinton despite the overwhelming evidence of her violations of standard federal security procedure strikes many observers as unjust. This is so not only because the decision seems to contravene obvious desert (the FBI does not doubt what she did), but also because, notwithstanding Director Comey’s (knowingly erroneous) denial that positive intention is required for a violation of the law, it raises questions about whether some supposedly greater purpose like social and political harmony in an election year outweighs the upholding of the law for its own sake or even as a deterrent to future security mismanagement.  Is justice, we might wonder, something good in itself and to be pursued for that reason, or because of the ranked purposes that it may serve?

United States citizens in 2016 are not the first persons or society to entertain these questions.  The ancient Greeks anticipated contemporary Anglophones in this as in many areas, particularly Plato.  It may be timely and to our profit then to ask this:  Is justice in his Republic an intrinsic and an instrumental good, as Socrates promises to prove to his interlocutors? Or does he only show that it is an instrumental good, in which case Glaucon's ventrilloquism for Thrasymachus (i.e., voicing the latter’s position for the sake of argument) is more on the mark?

In what follows I wish to explore this important question about justice as an instrumental and a final good through the lens of Plato’s Republic.  Socrates contends that justice is both intrinsic and instrumental.  How does he argue for that conclusion? How might this help contemporary societies understand both justice and the proper relation and pursuit of various ethical, social, and political goods?

Emotionally Invested in the Union

Yesterday Scotland voted on the question of whether it would remain in the United Kingdom or secede to become an independent nation.  Today the results showed that the "No" vote -- no on separating -- carried by a margin of approximately 55% No to 45% yes.  Historic, yes this vote was. But I am writing because of the mystery surrounding how personally I took it.

It was personal in a way that I cannot fully explain.  I was pleased with the outcome.  I wished for Scotland to remain in the union.  But why?

I have Scottish heritage, but I also have English and Irish and French.  I am an American citizen, and so I had no say in the matter regardless.  I do not have living relatives who live in Scotland or England or Northern Ireland and therefore who would be directly affected.  So why was I so anxious leading up to the vote?  And why was I so pleased when I woke this morning early and read before 5 am that Scotland had voted to remain in the union?

I have reflected on my emotional investment for some time, at least in the weeks leading up to yesterday's vote.  The key question was why.

I have long appreciated the Scottish contribution to much of enduring influence.  There is, in no certain order, the valuable legacy of Francis Hutcheson, David Hume, and Adam Smith to moral philosophy.  There is Smith's broader contribution to global economics.  There is Thomas Reid's common sense realism, which affected so much of certain strands of western epistemology and even Christianity (particularly among Presbyterianism on both sides of the Atlantic).  There is golf.  There are tartans.  There is the brogue.  There is Sean Connery.  There are the picturesque Highlands, poets like Robert Burns, haggis, and contemporary philosophers like Alasdair MacIntyre.  And there is, of course, single malt Scotch, smokey, peaty pleasure in a wee dram -- or more than just a wee dram.

But this appreciation, maybe even nostalgia, could equally tend toward favoring Scottish independence.  Why then did I favor union?

It is hard to say.  I agree with Alan Greenspan that a vote for independence would have "surprisingly negative economic consequences."  The unknown -- unknown challenges, unknown blowback -- is a greater risk than the certainty of sovereignty.  Symbolically, at a time when Europe is struggling to preserve its own political/military experiment which is the European Union (and let us not forget that the EU is ultimately an economic union designed to prevent military conflict among countries where there has been so much of it through the centuries), it would have been antithetical to the rhetoric coming out of Brussels to preserve union if a member country, Great Britain, experienced a secession.  (Yes, Britain is not part of the monetary union, but it is part of the political union.)

So maybe it is loving the idea of Scotland and its distinctiveness but also wanting the best for Scotland and believing that independence would have brought hardship beyond the naive aspirations of certain older generations (mostly in Glasgow) and the excitable youth.  Maybe there is some desire to see Britain Great, and realizing that England and Scotland would likely be less if they were not connected beyond sharing a land mass.  David Cameron had a fair point, namely, that parties in power will come and go, but a vote to separate would be irreversible at this point.  And hasty actions of great consequence, especially when they involve such far-reaching effects as reconstructing (or doing it from scratch) a national security apparatus, choosing and implementing a currency, and looking beyond the potential immediate boon that North Sea oil assets would provide.  What happens generations from now?

Maybe it is realizing the something great would be lost if there were Scottish independence that made me want to preserve that greatness by preserving the union.

It remains difficult to say.  And maybe it will always be inexplicable.  In any event, tonight I raise my wee dram to 300 more years of united greatness for Britain.

Affirming What?

What are the philosophical reasons that support the policy of affirmative action?  And what would admissions letters to students look like if they were philosophically consistent with the supporting rationale?

An inch of difference?

What difference does an inch make?

That is really the question raised by this USA Today column, "We've Forgotten What Belongs on Page One."

The author writes about the events that form the basis of an ongoing trial in Philadelphia about infanticide performed routinely by a physician. The question surrounds the seemingly artificial, in the author's eyes, distinction between what is moral and what is legal:

...whether [the doctor] was killing the infants one second after they left the womb instead of partially inside or completely inside the womb — as in a routine late-term abortion — is merely a matter of geography. That one is murder and the other is a legal procedure is morally irreconcilable.

So an inch makes the difference between what is illegal and what is legal, between permissible termination of a life and the impermissible termination of it.

The details that emerged during the trial and that are described in the column are just horrifying.  The trial seems to highlight the real dispute at issue:  not when does life begin but when does life become socially valuable?

Our enlightened society and its legal system have an answer. An inch makes all the difference.

Ralph Waldo Emerson is famous for writing in his essay "Self-Reliance" that "[a] foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers..."  Apparently, little statesmen are also wont to adore foolish inconsistencies.  And it reflects the smallness of their minds.

In Hoc Anno Hominis?

In the past I have enjoyed the fact that The Wall Street Journal annually runs its traditional Christmas editorial "In Hoc Anno Domini."  I suppose that is because traditions have a cumulative effect, and I like that the editors of the paper have not bowed to contemporary pressure to diminish the significance of the holiday by reducing it to consumption or mere family time.

This year, however, I am finally able to give explicit expression to what has never sat completely well with me about the traditional editorial (reproduced in full below).

Ancient Greek Tragedies and Our Own

I have been rereading some ancient Greek tragedies, and I am impressed by how relevant their themes remain, especially for our struggles in families and societies.

The Current State of Irreligion

Two recent publications caught my eye on the subject of religion -- or, more precisely, irreligion -- in the United States.  Let me briefly list them, highlight the main points, and add a comment or two.

Making Sense of Wilson, pt. 9: Universal Impulse

In a prior post in which I reflected on James Q. Wilson's book The Moral Sense, I drew attention to the universal impulse in moral sentiment that he identifies:  "The most remarkable change in the moral history of mankind has been the rise -- and occasionally the application -- of the view that all people, and not just one’s own kind, are entitled to fair treatment" (191).  Because it is so remarkable, and because it has such sweeping implications, it is worth probing further this topic about the development of universalism in moral thinking and practice.

We can begin by focusing on a question that Prof. Wilson himself poses:  "How can we explain the great expansion of the boundaries within which the moral sense operates?  How, in particular, can we explain why we believe that moral rules ought to have universal applicability?  This aspiration toward the universal is the chief feature of the moral history of mankind" (194).  Indeed.

Professor Wilson suggests that the long development of consensual marriage, particularly in northwestern Europe, helps to provide a key, but not the only, component of an explanation.

The link between the two, consensual marriage and universal moral applicability, may not be immediately apparent.  The tie, however, is the parallel development in northwestern Europe of individualism.  What is the connection?

Making Sense of Wilson, pt. 7: Family

Why are the nature and structure of family life so heatedly debated?

This question can often be overshadowed by the rancor of contemporary disputes about family matters (such as cohabitation or marriage and wealth), but it is important to ask.  It is a question that arises in my mind frequently.  I wonder if exploring an answer to it might lay the groundwork for more constructive and less rancorous dialogue about these substantive topics than we sometimes have.

James Q. Wilson's discussion of the family, which occurs in a different context that is not about moral debate per se, may help us to pose an answer to this question.

Quite simply, one reason the nature and structure of family life are so heatedly debated, it seems to me, is because "[t]he family is a continuous locus of reciprocal obligations that constitute an unending school for moral instruction" (The Moral Sense, 162-63).  The fabric of the family ineluctably shapes the fabric of its members' morality.

Testing Tolerance

Until now I have tried to stay above the fray involving Chick-fil-A.  I post this only to say that the main point of an editorial in today's The New York Times strikes me as correct:  Government officials, such as the mayors of Boston and Chicago, the Speaker of the New York City Council, and an alderman of Chicago, ought not to discriminate against a lawful business enterprise on the basis of the personal views of the business owner.  Those officials have said that they would block additional expansion of Chick-fil-A franchises in their jurisdictions.

The editors at the Times, as well as NYC mayor Michael Bloomberg, hold a view of the permissible parties involved in and the moral nature of marriage that is opposed to that of Chick-fil-A owner Dan Cathy.  What they both accurately recognize, however, is that the public relations campaign and business threats by government officials against Mr. Cathy amount to intolerance of his religious beliefs and his entitlement both to hold and to express them.  As Mr. Bloomberg is quoted in the editorial as saying, “You can’t have a test for what the owners’ personal views are before you decide to give a [business] permit to do something in the city.”

The Chicago and Boston mayors', the NYC councilwoman's, and the Chicago alderman's views are intolerant because they seek to deny public rights (the rights to pursue property and lawful enterprise) as an attempt to censure private rights (the rights to free religious belief, free speech, and liberty of conscience).  These officials may attempt this in protest to, or as an expression of disagreement about, some other closely-held matter, but they are still intolerant.

And they are intolerant, moreover, because they deny in practice something at the heart of political liberalism, the fact of reasonable pluralism.  In a contemporary democratic society, John Rawls observes, the fact of reasonable pluralism is "the fact of profound and irreconcilable differences in citizens' reasonable comprehensive religious and philosophical conceptions of the world, and in their views of the moral and aesthetic values to be sought in human life" (Rawls, Justice as Fairness, 3).  The government officials do this -- deny in effect the fact of reasonable pluralism -- precisely by seeking to banish from their political communities (because they cannot be tolerated) those who differ in moral and civic viewpoints from them.  They do not accept profound and irreconcilable differences in worldview; they wish to eliminate them.  The officials make no room for public debate about how to balance in the community all agreed upon liberties with those that may be disputed.  In fact, they make little to no room for the exponents themselves who hold and express differing viewpoints.

In this vein, a creative thought experiment was narrated by Mona Charen in a column that she titled "Al-Rahim and Chicago Values."  She describes a situation in which a Muslim business owner of convenience stores articulates to a Muslim periodical his belief in the traditional, Quranic view of marriage, which is a man's having not more than four wives.  Apparently this differs from the view of marriage held by the mayors of Chicago and Boston, who go on record that they will do all within their power to prevent him from opening up more convenience stores in their cities, because his personal beliefs about heterosexual matrimony are at odds with their and their cities' approach to marriage and civil unions.  What would the response be to this Muslim man's comments?

This is a thought experiment, because it is retelling the story of Mr. Cathy as Mr. Al-Rahim, the story of a Christian businessman's expression of his personal viewpoint as the story of a Muslim's.  As Ms. Charen explains, "Rahim is an invention to illustrate the selective outrage of liberal Democrats. It is simply impossible to imagine that liberal Democrats would treat affirmations of Muslim faith with the kind of bullying that Cathy and Chick-fil-A have received.  Yet Islam is at least as doctrinally tough on homosexuality as Christianity is, and considerably tougher in practice."

The fact of reasonable pluralism, as Prof. Rawls understands it, is an unavoidable fixture of contemporary democratic republics such as the one in the United States.  It is also, as the present brouhaha attests, difficult to navigate in conjunction with a commitment to the core and treasured liberties of the moderns:  freedom of thought, speech, property ownership, and liberty of conscience.  (I borrow the phrase "liberties of the moderns" from Prof. Rawls; see Justice as Fairness, 140-45.)  As much as definitions of fairness still need to be clarified carefully, about which I wrote in a previous post, so, too, does the concept of tolerance.

Tolerance of a belief is not the same as acceptance of that belief.  In my view, however, in common, everyday practice, tolerance has become in many people's minds synonymous with conforming to, or acceptance of, their viewpoint.  This conception of tolerance is the converse of the popular conception of intolerance:  If you accept my view about P, then you are tolerant; if you do not accept -- do not agree with, do not conform to -- my view about P, then you are intolerant.  Disagreement is designated intolerance; reasonable difference of opinion is often quickly labeled bigotry.

But this popular conception, where it prevails, not only may serve as easy ad hominem argumentation.  This conception evacuates tolerance of all its meaning, for tolerance assumes non-acceptance.  It presupposes disagreement.  It says that a differing viewpoint and the one who holds it are not to be excluded from public discourse and the public square.  Reasonable disagreement will be endured and respected -- tolerated.  By contrast, to be intolerant is to be unwilling to grant equal freedom of expression or to penalize people unjustly for making free expressions.

The fact of reasonable pluralism tests real and workable conceptions of tolerance.  We may not agree with the fictional Mr. Al-Rahim's endorsement of traditional, Quranic marriage.  We may object to the real-life Mr. Cathy's advocacy of traditional marriage as a conjugal union.  These sorts of expression of speech and conviction of conscience are rights protected by the Constitution and enshrined as Constitutional essentials.

What we may not do, however, is this.  In advocating for fairness for all, we may not practice a selective view of fairness for some.  In an attempt to prevent certain Muslims and Christians from supposedly treating a group as separate but equal (for so goes the argument for same-sex "marriage"), we may not treat these Muslims and Christians themselves as separate but equal.  We may not, in other words, claim that they are equal but seek to separate them from our civic and business life.

But this is what the mayors of Chicago and Boston have done.  They say, "You may have your beliefs, but you cannot pursue your conception of life, liberty, and the pursuit of happiness in our community through your business enterprise.  You are equal, but you must remain separate from us.  We can discriminate, but you cannot."  In so doing, that is, by practicing a real separate-but-equal approach to matters of freedom of speech and lawful employment, these officials have undermined their professed moral justification for same-sex marriage on the basis of the same, namely, ending a purported practice of separate but equal.

Whether, in fact, the debate about the definition of marriage admits, as some parties believe, the separate but equal line from Plessy v. Ferguson (1896) is another matter.  The black community, for instance, does not on the whole view the subject in that light, and they might be positioned better than others to know separate but equal when they see it.  Separate but equal sounds nice; it is a powerful sound bite with a known civil rights pregnancy; but I am not sure that upon closer inspection it fully applies.  The debate about marriage seems to me fundamentally about the wisdom and propriety of redefining -- and thereby changing -- an indispensable cultural/civil (and arguably religious) institution, as well as about the moral consequences entailed by such a redefinition.

Be that as it may, the mayoral hubbub about Chick-fil-A demonstrates the ways in which so-called tolerance is frequently championed but inconsistently practiced.  For calling out what would amount to unjust policing and penalizing of law-abiding citizens and businesses for protected First Amendment rights, The New York Times editorial board is to be commended.

A Taxing Problem

Ari Fleischer writes in an op-ed in Monday's The Wall Street Journal about the latest Congressional Budget Office (CBO) report on U.S. taxation.  Mr. Fleischer discusses this in connection with the presidential campaign rhetoric about the income tax system.  He produces a graph, similar to a table produced recently by Harvard's Greg Mankiw, that helpfully illustrates the actual distribution of taxes paid by income level.

Mr. Fleischer's main point is this:  "If fairness in paying taxes means the amount you pay is based on the amount you make, then the only group in America paying at least a 'fair share' is the top 20% — people who make more than $74,000. For everyone else, the tax code is a bargain."  He substantiates his position based on a comparison of data that is summarized in the following graphic.

Based on the CBO report, Mr. Fleischer examines "the top 20% of income earners (over $74,000).  They make 50% of the nation's income but pay nearly 70% of all federal taxes.  The remaining 30% of the tax burden is borne by 80% of the taxpayers, those who make less than $74,000. In short, this group's share of taxes paid, 30%, is lower than the share of income they earn, 50%."

He compares not just income level to percentage of federal taxes paid in the period under review (through 2009).  He also tries to put this into historical perspective:

the share of taxes paid by the top 20% has gone up over the last 30 years, while the share of taxes paid by everyone else has gone down. … The top 20% in 1979 made 44.9% of the nation's income and paid 55.3% of all federal taxes. Thirty years later, the top 20% made 50.8% of the nation's income and their share of federal taxes paid had jumped to 67.9%. … Meanwhile, the federal tax burden on middle- and lower-income earners is lighter. In 1979, the bottom 20% paid barely any taxes at all, just 2.1%. Now their share of taxes is a minuscule 0.3%.

I doubt that the data that Mr. Fleischer presents will be disputed.  What will be disputed is his interpretation of the data.  It is important to remind ourselves of this distinction (data and interpretation of it), even generally, because it will help to clarify the moral issues that are debated and thereby to promote improved public discourse.

Although I sympathize with the perspective that Mr. Fleischer advances, I also think that he misses something critical to the ongoing national conversation about monetary and tax "fairness."  This is a complicated topic, but let me offer one observation.

When the president and others object to the current tax system on the grounds that many citizens do not pay "their fair share," they are objecting, among other things, not just to the rate at which certain citizens pay taxes (that the rate is too low) but also to the level of income on which taxes are paid (that the level is too high).  It is both the tax rate and income level, taken together and with a view to a certain social end, that is viewed as unfair.

To say the same thing slightly differently, the issue in question is both the progressivity of the tax system and the spread between income levels.  The wide spread between income levels now versus thirty years ago -- that is, the difference in earned income between the top and bottom quintiles -- may in fact be what prompts the outcry for greater progressivity in taxation than prevails at present.  (This income discrepancy, by the way, is not a uniquely American phenomenon.)  

I suspect that if the spread were narrower, then demands for greater tax fairness might be more muted.  If some people did not make so much more money than others, then the issue might not seem in certain quarters to be so problematic.

This is important to note.  It is a sense of unfairness about the spread between income levels that is effectively prior to -- and therefore it is this that motivates -- the sense of unfairness about the spread between average tax rates and share of income taxes paid.  The widening income gap seems to some to be wrong (unfair); so current taxes paid on the high levels of income also seem to be wrong (unfair).  At issue, in other words, is the understanding of fairness itself.

Mr. Fleischer himself seems to recognize this, which is why he begins the op-ed in the way that he does, namely, by proposing one understanding of fairness:  that "the amount you pay is based on the amount you make."  This is fairness as equity.

His construction helps him to make his case, since he presents his data in light of that construction.  He spotlights disparities in taxation relative to earnings.  He, too, identifies unfairness; however, it seems to him to be "unfair" to those who have higher incomes.  It is not unfair because they have higher incomes.

When viewed thusly, Mr. Fleischer's objection may not be to progressivity itself but to the degree of progressivity:  that discrepancy in taxation is out of proportion to the discrepancy in income earned; it is too progressive; this spread is too wide.  It is not equitable.  The increase in the amount of taxes paid is greater than the increase in the amount of the nation's income earned.  (See the nearby table.)
 

But others will object that "fairness" is not really or ultimately to be conceived in terms of the amount of tax that one pays compared to the amount that one earns.  If it is, Mr. Fleischer will probably win the argument on that assumption along the lines of his op-ed.  According to his detractors, however, fairness is not a matter of proportionality in Mr. Fleischer's sense, whether proportionality of contributions or proportionality according to merit.  The driving sense of fairness on their view is not one of fairness as equity, but fairness as equality.

On this view, fairness is that system which leads to more equal social outcomes regardless of contributions or merit.  (In some versions it may perhaps be fairness precisely in contradistinction to them.)  It is fair to tax people differently, often very differently, if it is done with the goal of making more equal the primary goods of income and wealth (often through federal programs) across society but especially among those defined as the least advantaged.

This view, as I have articulated it, echoes that advanced by John Rawls, justice as fairness, a theory in which what he calls the "difference principle" operates:  "the difference principle requires that however great the inequalities in wealth and income may be, and however willing people are to work to earn their greater shares of output, existing inequalities must contribute effectively to the benefit of the least advantaged.  Otherwise, the inequalities are not permissible" (John Rawls:  Justice as Fairness:  A Restatement, 64; see also 122-24).

According to Prof. Rawls, the operative principle is not equity but his own special brand of reciprocity.  (I say that it is special because reciprocity is usually, is ordinarily, an in-kind exchange between two parties, whereas that in view in Prof. Rawls's theory involves unlike transfers among multiple parties.)  A controlling idea, then, in Prof. Rawls's view of justice, which has been in the air that many government officials have breathed for the last forty years since he first proposed it in 1971, has to do with acceptable differences across society as judged by a notion of reciprocity.  And it is this notion of reciprocity that sheds light on one current group's sense of fairness:

To sum up:  the difference principle expresses the idea that, starting from equal division, the more advantaged are not to be better off at any point to the detriment of the less well off.  But since the difference principle applies to the basic structure, a deeper idea of reciprocity implicit in it is that social institutions are not to take advantage of contingencies of native endowment, or of initial social position, or of good or bad luck over the course of life, except in ways that benefit everyone, including the least favored.  This represents a fair undertaking between the citizens seen as free and equal with respect to those inevitable contingencies. (124)

Professor Rawls advances this notion of justice as reciprocity, or fairness, by way of a thought experiment:  what sort of society would representatives behind a veil of ignorance choose to create in a hypothetical original position?  Policymakers advance something akin to this notion of justice as fairness not in an original position but at a different stage; they regulate society that is in its current position with constitutional essentials already settled.  The goal of many current policymakers is, with reciprocity as a guiding light, to make progress toward the ideal through social and economic legislation and through the administration of related rules (see 47-49).

When politicians say that they only want the group with greater monetary wealth to pay its fair share of taxes, they do not refer to the statistics that Mr. Fleischer adduces.  They appeal, instead, to a moral idea that is not dissimilar to that of Prof. Rawls's, even if it is not directly dependent on his teaching.  The moral idea is that such a wide discrepancy in income as exists now between the top 20% of earners and the bottom 20% of earners -- which has widened over the last thirty years -- is permissible if and only if the wealth amassed by the top 20% works to the greatest benefit of those in the bottom 20%.

These politicians believe that such a benefit has not been realized.  Because the more advantaged seem to be better off to the detriment of the least advantaged, it follows for them that unfairness exists and that greater taxation is a justified means of producing fairness.  And fairness is what would be to the greatest benefit of the least well-off.  Increased taxation -- which is a form of coercive state power -- on one group of society is a justified means of producing "fair undertakings," or just plain fairness, for the rest or whole of society.  Hence, "fair share" on this view is the share that secures a fair distribution of monetary goods across society.

The debate about taxation, precisely because it is tethered to the ongoing debate about the best American political scheme for the future, is not going away soon.  It is therefore critically important to make explicit the assumptions about what is fair that are often unarticulated but that are nevertheless powerfully at work in people's thinking and speaking.  Taxation is a material manifestation of a more formal matter:  competing conceptions of fairness.

Until and unless we engage each other candidly at the formal level, inquiring sincerely about a person's view of fairness and pressing respectfully why that person believes in this sense of fairness and not another, we will be fruitlessly volleying material arguments back and forth.

Forcing the Issue

Today's The New York Times runs with a front-page story on forced abortions in China.  A woman is pictured whose child at around 36 weeks (a universally recognized point of viability) was killed by Chinese officials.  (Supposedly third-trimester terminations are illegal in this woman's province.)  The article reports on the growing push by some segments to end the policy.

The Chinese government insists that it will maintain its one-child policy, which was begun in 1980 and is a cause of many terminations in China.  The government attributes the policy to avoiding 400 million births.  Assuming that only 1 out of every 1,000 -- that is, only 0.1% -- avoided births were so avoided by termination of the child, that still amounts to 400,000 deaths.

That amount of deaths might garner "epidemic" status if the issue were different, say, West Nile virus.  That hypothetical figure of 400,000, as large as it is, still is less than one-half of the actual number of abortions performed in the United States each year, for example, about 860,000 in 2006 which were aided by publicly funded family planning services.  For comparison, the Rawandan genocide in 1994 involved the murder of an estimated 800,000 people.  That was genocide and in one year, not a "political disagreement" and per annum.  Maybe the problem in China is an epidemic; apparently it is not at home.  To the child in utero, however, that abortion to end life is, well, forced.

Two separate spheres of life?

Why does a blog ostensibly about "cultivating wisdom, prudence, and virtue" comment on and provide links to articles about political-legal topics such as termination of human life or Congress' powers to regulate it?

This is a fair question worth pondering.  Two recent sets of posts relate to these topics.

The question, it seems to me, probably reflects a critical assumption:  morals, morality, and moral evaluations -- those things tethered to virtue of mind and action -- have very little, if anything, to do with politics and law.

The reasoning behind such an assumption might go like this:  "If those two things, morals and politics, did have something to do with one another, then I could understand why you might mention them in this forum.  But I'm not really sure that they do go together.  Isn't morality just a private matter while politics is public?  Aren't these two separate spheres of life?  That's how I tend to think about it.  So I need some help understanding why you've raised those topics here, when you want to promote right practical thinking and action that are in accordance with virtue."  We might respond by posing a question of our own.

Are morals really separate from politics?

This is a well-traveled moral and political philosophical question.  It arises, for instance, in classical Greek thinking.  One encounters the matter in the dialogues of Plato and the writings of Aristotle.  It evolves in their successors, the Cynics, the Stoics, and the Epicureans.  I touched on it in my inaugural post.

Another way to frame this question is to ask:  Do morals and morality transcend social structures, or are morals and morality determined by them?  Is doing right (morality) distinct from faring well (socio-political pursuits in community)?  This matter is not only well pedigreed in classical philosophy; it is also a matter that tangibly affects daily life today -- including the propriety of content in blog posts such as this one.

It is a mistake, I submit, to divorce questions of morals from questions of politics.

It is erroneous, in other words, to separate decisively considerations of virtue in individuals from considerations of society's governing policies that form the communal environment in which these individuals find moral pursuits a matter of daily experience.  To separate them so, at least, is to reconfigure radically social community.

In a previous post, I noted that some people explain political differences in terms of different conceptions about the structure and function of the family:  the morality that informs approaches to the family gets mapped onto the government as family.  The guiding moral framework of the microcosm (the family) becomes the guiding moral framework for the macrocosm (the political state).  People tend to see the government as family, and they wish for those principles operative in the one sphere to prevail in the other.  This is just one theory (that of George Lakoff in Moral Politics), and it is not perfect.  It does, however, posit one vivid way in which morality and politics are connected:  the role and moral principles of the family understood subsequently as those of the government.

Morals and politics may be connected not only from the perspective of cognitive linguistics but also from the perspective of philosophical reasoning.

In his A Short History of Ethics, Alasdair MacIntyre makes this observation while discussing the supposition that "there are two distinct spheres of life, one for 'morals,' the other for 'politics.'"

But, in fact, every set of moral evaluations involves either neutrality toward or assent to or dissent from the social and political structure within which it is made.  And insofar as dissent is concerned, the moral evaluation will involve some degree of commitment to an alternative.  (MacIntyre, Short History, 97)

This connection between the two was the case for Plato and Aristotle, the Notre Dame professor argues, because they assume that the proper role or duty of an individual is inextricably intertwined with that individual's role and duty in the polis.  That is, these philosophical giants take for granted their particular social structure in deriving norms for practical guidance in pursuit of virtue. Therefore, the "Greek moral vocabulary is not so framed that the objects of our desires and our moral aims are necessarily independent.  To do well and to fare well are found together in a word like eudaimōn" (85).  And they are found together, moreover, in the daily context, the rough and tumble world, in which they both occur.

Additional reflection on Prof. MacIntyre's larger treatment of Greek ethics could help to shed light on multiple angles of this topic, particularly how morality neither completely transcends social settings nor is wholly subsumed by them.  To explore his treatment, however, would take us far afield.  The point I find most germane now is the moral evaluation that necessarily takes place in one's disposition toward a certain social and political structure.  We might simplify this structure and call it policy.  Professor MacIntyre identifies assent, dissent, and neutrality.

I am not always entirely sure whether neutrality in the strict sense, without a slight preference for one policy or the other, is in fact possible.  Even if it were, the person displaying neutrality would still be involved in a moral evaluation based on some sensibility, and that person would still be assuming a commitment to an alternative, a third thing, something either not on offer or not yet proposed.  Neutrality in this sense would also be dissent from the social and political structure (or policy), a lack of assent to this but desirous of "something else."

My concern is not indifference or neutrality per se; rather, it is that approval of, disapproval of, or even neutrality toward a particular socio-political structure involves a moral evaluation of it.  The one socio-political structure or policy is approved or disapproved because it is judged to be right, or just, or not.  If one is neutral, one is either unsure whether it is just (itself a part of moral reasoning) or has a framework in which what is right is judged to be based on different criteria (because, from an alternate moral sensibility, the policy is not clearly right or wrong as other partisans suppose).

Therefore, it does seem that morals are connected to politics; the two are not separate from each other.  To say this is not to identify them; they are distinct but not separate.  It is just to affirm that politics have an inextricable moral dimension, and our moral sensibility is what causes us to think and feel the way we do about politics.  Our moral sense, to use the phrase that is the title of James Q. Wilson’s valuable book, is what prompts our assent to, dissent from, or neutrality toward a governing policy or regime.  We are involved in judging whether we think it is right.

What is the payoff of these reflections?  This point is important to make because there is a tendency with some currency to divorce moral questions from political ones.  This proclivity may be subsiding somewhat.  The oft-rehearsed appeal to "social justice" explicitly introduces moral questions into political discussions.  But we need to realize that differences on questions that may relate to "social justice," on the one hand, are not necessarily a matter of one side's being moral and the other's being immoral, the one just and the other unjust.  It is, on the other hand, actually to underline that the political topic is a moral one and that the disagreement is about the nature of justice, precisely the moral principle in question.

Second, this is, in fact, to bridge the two things that sometimes are divorced, the norms of virtues like justice and the social and political structures in which the norms find expression.  It is to recognize the uniting thread of doing right and faring well, morality and politics.

It is, third, to admit that discussion about policy measures that we might characterize as questions of "social justice" may involve us in discussions about more basic questions of morals, morality, and moral evaluation.  We may have to back all the way up to comprehensive moral frameworks.  We must be prepared for those more difficult soundings in our conversations with one another.  We cannot raise the political matter and shy away from discussions of the moral matter.  More to the point, in raising a political topic we implicitly welcome moral questions.  We cannot cry foul if we are pressed to explain ourselves and our guiding moral convictions and assumptions.  This may be the only way to make real political progress in such conversations.

Finally, we must also train ourselves to engage in these discussions both respectfully and thoughtfully.  Not only in ancient Greece but also in our own day, to probe the moral questions that lie underneath surface questions of politics is what responsible individuals do, as a key component of their role, in social community.  This sort of communal self-understanding and sense of responsibility is something that we would do well to reclaim.

The Dark Knight (of Taxing) Rises

In an effort at once to sympathize with those who find themselves in the minority and to recognize respectable reasoning through a topic when it arises, I reproduce in full today's rather lengthy editorial in The Wall Street Journal.

A Vast New Taxing Power

The Chief Justice's ObamaCare ruling is far from the check on Congress of right-left myth.

The commentary on John Roberts's solo walk into the Affordable Care Act wilderness is converging on a common theme: The Chief Justice is a genius. All of a sudden he is a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times.

Now that we've had more time to take in Chief Justice Roberts's reasoning, we have a better summary: politician. In fact, his 5-4 ruling validating the constitutional arguments against purchase mandates and 5-4 ruling endorsing them as taxes is far more dangerous, and far more political, even than it first appeared last week.

This is a minority view. By right-left acclaim, at least among elites, the Chief Justice has engineered a Marbury v. Madison-like verdict that camouflages new limits on federal power as a reprieve for President Obama's entitlement legacy and in a stroke enhanced the Supreme Court's reputation—and his own. This purported "long game" appeals to conservatives who can console themselves with a moral victory, while the liberals who like to assail the Chief Justice as a radical foe of democracy can continue their tantrum.

It's an elegant theory whose only flaw is that it is repudiated by Chief Justice Roberts's own language and logic. His gambit substitutes one unconstitutional expansion of government power for another and rearranges the constitutional architecture of the U.S. political system.

***

His first error is the act of rewriting the plain text of a law, instead of practicing the disinterested interpretation that is the task of the judiciary, regardless of the partisan outcome. The second error is converting the health insurance mandate's penalty into a tax. Ninety years of precedents have honed precise and widely divergent legal meanings for taxes and penalties for violating laws or regulations, and they are not interchangeable.

The Chief Justice did not simply change a label—as if Congress said something was a penalty when it was really a tax. Rather, these categories are defined by their purposes and effects, by how they operate in practice. Taxes are "exactions" whose main goal is raising revenue, while penalties punish individuals for breaking the law. The boundaries can blur—legitimate taxes may also have strong punitive aims—but scarcely so in this case. ObamaCare's mandate was designed to regulate individual conduct to help achieve universal coverage. If it succeeds perfectly, it should collect $0.

Even if Democrats had passed the mandate tax as rewritten by the Chief Justice, and they did not, the Supreme Court until Thursday has never held that Congress can call anything it wants a tax. The taxing power like the Commerce Clause is broad, and the courts are generally deferential. But all powers the Constitution enumerates are also limited, and these limits—unique to each power—must be meaningful and enforceable by the legal system.

The Chief Justice's compounding errors deprive the taxing power of any viable limiting principles. Article I, section 8 gives Congress an independent grant of power to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." Taxes must originate in the House, the political body designed to be most responsive to voters. There are also important additional safeguards on the type of exactions known as "direct taxes."

Indirect taxes—"duties, imposts and excises"—are taxes on activities and products. They are passed on by a seller, triggered by a transaction and more or less optional: Consumers don't have to buy taxed goods and services. Direct taxes, on the other hand, are those that the federal government is empowered to impose on individuals as citizens. They cannot be avoided because they are levied on the existence of people.

America has its origins in a rebellion against arbitrary and pernicious taxation and the Framers wanted to make it extremely difficult to impose or raise direct taxes. These can easily morph into plenary police powers, the regulation of private behavior and conduct that the Constitution vests in the states. For this reason, while the taxing power in addition to raising revenue can achieve regulatory results, those regulatory results must be constitutional themselves.

***

That boundary held for 225 years until Thursday's ruling, as the Court had repeatedly struck down Congress's efforts to arrogate to itself police powers under either the Commerce Clause or the taxing power. The Chief Justice ruled instead that the mandate was an unconstitutional exercise of federal police powers under the Commerce Clause, only to transform the taxing power into a license for the federal government to impose taxes whose defining feature is commanding people as members of society.

Chief Justice Roberts concedes that "Congress's ability to use its taxing power to influence conduct is not without limits" and that in the 19th and early 20th centuries the Supreme Court "policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority." But then he writes that "more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures."

His error—or more likely, his deliberate sleight-of-hand—is that this modern jurisprudence does not deal with direct taxes but indirect taxes and income taxes. Income taxes were authorized in 1913 by the Sixteenth Amendment, which was necessary to bypass the other important limit on direct taxes, called apportionment.

The Constitution says that "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken." Colloquially, direct taxes are known as head taxes and they must be spread among the states according to population. Apportionment's onerous limits were meant to protect against abuse and sectional favoritism. If Congress uses direct taxes, the residents of South Carolina will pay the same overall share as Massachusetts, and so forth.

But apportionment would defeat the mandate tax's "whole point," the Chief Justice writes, since every state will have a different percentage of citizens that are uninsured. So he cryptically rules that "A tax on going without health insurance does not fall within any recognized category of direct tax."

But if not a direct tax, then what kind of tax is it? It is not an indirect tax because it applies to a failure to purchase something, what the Chief Justice calls "an omission," not an optional transaction. It is not a tax on income because that merely hits "accessions to wealth," not what people choose or choose not to do with those accessions.

The result is that Chief Justice Roberts has created the only tax in U.S. history that exceeds its own constitutional limits and is meant to execute powers that the Court otherwise ruled were invalid. His discovery erases the limiting principle—apportionment—that constrains the taxing power for everything besides income and excises.

In the process, Chief Justice Roberts has hollowed out dual federal-state sovereignty and eviscerated the very limit on the Commerce Clause that he posits elsewhere in his opinion and that has some conservatives singing his praises. From now on, Congress can simply regulate interstate commerce by imposing "taxes" whenever someone does or does not do something contrary to its desires.

The Chief Justice seems to understand this, so he tries to articulate his own new limiting principle for the tax power. His mandate tax isn't a mandate but merely a suggestion: choose to buy insurance or "pay money into the Federal Treasury, no more," an act he likens to a tax on gasoline. He also temporizes that "taxes that seek to influence conduct are nothing new."

True enough, but the punishments in the tax code for inactivity come in the form of not being able to claim benefits that Congress in its graces bestows. Such as: If you don't borrow to buy a home, you don't get a mortgage interest deduction.

Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty. The reality is that Washington would love to regulate the ordinary economic choices that used to be beyond its purview, and now it will be able to abuse the ad hoc "tax" permit that the Chief Justice has given it.

***

The John-Roberts-as-Daniel-Webster school argues that the long-term limits on the Commerce Clause and other aspects of the ruling are a good trade for the loss of upholding ObamaCare, and government excess has now reached its high-water mark and will recede over time. That false hope seems unlikely given the subversion of the taxing power and unleashing a general federal police power. This is equally harmful to liberty and dual sovereignty.

One possible saving grace is that this center-right country remains suspicious of taxation, and therefore the Chief Justice increases accountability somewhat through truth-in-labeling. But note how Democrats are already claiming that the ObamaCare mandate is not really the tax that is the only reason it was upheld.

White House chief of staff Jack Lew said Sunday that "The law is clear. It's called a penalty." Neither sentence is true. On Friday, the Obama re-election "truth team" was even less subtle in a memo titled "They're lying about ObamaCare" that made the same claim. Chief Justice Roberts has created a creature that is not a tax for political purposes but is a tax for constitutional purposes.

Chief Justice Roberts's ruling is careless about these bedrock tax questions, and they are barely addressed by either the Court's liberal or conservative wings. His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government's core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.

If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court's legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice's cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.

"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court's most important role is to protect liberty when the political branches exceed the Constitution's bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.

A version of this article appeared July 2, 2012, on page A10 in the U.S. edition of The Wall Street Journal, with the headline: A Vast New Taxing Power.