Power and the Liberal Tradition

I have long considered myself a liberal, in the following sense: I believe in liberal democracy. The ideal of a republic of free and equal citizens is my north star, guiding my own politics here in the messy mundane world. I believe that bodily autonomy is a fundamental right, and thus so are both abortion and gender transition. I believe that individuals have the right to speak, associate, and worship regardless of whether those actions are beloved of the majority. And I believe that the right to vote and be politically represented is fundamental to all the foregoings. I feel no doubts about these principles stemming despite the various conservative challenges to them.

But of late I have increasingly felt the press of what I will call the Marxist challenge: These legal rights you cherish are a superstructure on top of the base of class relations. Ultimately class inequality will hollow out any legal rights you think you have secured. A vulgar Marxism, admittedly, but a powerful one: as bosses strip workers of their cellphones so they don’t know a tornado is about to hit the warehouse, as student debt hangs like a millstone around the necks of a generation, as rising rents devour an ever-larger share of income, it’s hard not to feel the press of that challenge.

We can rephrase the Marxist challenge into a more general question: are there material or social preconditions for liberal democratic ideals?  And if so, what are they?  To respond to this challenge I’m going to cover a fair bit of ground—the nature of liberalism, the mischiefs of faction, a century’s attempts at police reform—but first, I want to bring out a specific strain in the liberal tradition, one given by some of the most prominent writers in the liberal canon: There is no base upon which the structure of liberal democracy cannot be erected. The only necessary precondition for liberal democracy is the fundamental equality of all humanity.

Meet the liberals

Let’s first take a look at some of the canonical writers in the liberal tradition—Thomas Hobbes, John Locke, and John Rawls. While they do not represent the whole of the liberal tradition, they are standard representatives, and each in their own way profoundly influential. More to the point, I think they are emblematic of a certain strain in liberalism that remains quite powerful. Even if they are not the whole or even the best of the liberal tradition, they encapsulate an important tendency.

Each of them is a seminal thinker in so-called “social contract” theory. And each of their theories begins with a sort of “state of nature” out of which individuals contract into society—this contract, of course, being the eponymous social contract. To put things in a different perspective, the state of nature describes the preconditions of the liberal order, the basic nature of society which can support and sustain the liberal order created by the contract.

This tradition traces its origin to Thomas Hobbes’ 1651 Leviathan or The Matter, Forme and Power of a Commonwealth Ecclesiasticall and Civil. Hobbes famously describes the state of nature as a state of anarchy, a war of all against all, which can only be exited by the formation of a single supreme authority—the king, the absolute monarch—the Leviathan of the title. But the state of nature is nevertheless a state of equality: 

Nature hath made men so equall, in the faculties of body, and mind; as that though there bee found one man sometimes manifestly stronger in body, or of quicker mind then another; yet when all is reckoned together, the difference between man, and man, is not so considerable, as that one man can thereupon claim to himselfe any benefit, to which another may not pretend, as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others, that are in the same danger with himselfe.

Leviathan Part 1 Chapter 13

John Locke’s 1689 Two Treatises of Government: In the Former, The False Principles, and Foundation of Sir Robert Filmer, and His Followers, Are Detected and Overthrown. The Latter Is an Essay Concerning The True Original, Extent, and End of Civil Government will update this conception of the state of nature in a key way:

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for our’s.

Second Treatise Chapter 2 Section 6

For Hobbes, our political system is rooted in the rough mental and physical equality of humanity. Locke, writing forty years later, offers a superficially similar premise of equality. But Locke’s equality is moral equality before God, not the material equality of murderousness. This concept of moral equality will be stripped of its religious trappings by later liberal thinkers—Immanuel Kant, writing in the 1700s, and more recently by John Rawls. Indeed, in his 1971 A Theory of Justice (revised in 1999), Rawls does away with even the appearance of material equality, beginning straightaway with the austere concept of moral equality:

In justice as fairness the original position of equality corresponds to the state of nature in the traditional theory of the social contract. […]  The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. […]  For given the circumstances of the original position, the symmetry of everyone’s relations to each other, this initial situation is fair between individuals as moral persons, that is, as rational beings with their own ends and capable, I shall assume, of a sense of justice.

A Theory of Justice, revised edition, p. 11

Later Rawls will add “the condition of moderate scarcity,” which means simply any situation between immediate starvation and fully automated luxury gay space communism—in other words, it is a rather small restriction (Rawls 1999 p. 110). Thus in Rawls we see the full flourishing of the idea that the sole basis of liberal democracy is the fundamental moral equality of persons. Historically, this has been an immensely influential idea—the notion that we are each due certain fundamental human rights, independently of our poverty, our subordination, our social abjection—there’s a reason it’s been the rallying cry of liberal democracy since its inception. In that respect, it is admirable.

But it is also closely correlated with another idea: that one can begin from the premise of fundamental moral equality and just sort of drop that onto any society to arrive at a liberal democracy: If we simply enshrine in law the rights due humanity, then liberal democracy will inevitably follow.  Let’s take a look at how that’s worked in practice, working through the lens of a particular issue: police reform.

A century of failure

Maybe you’re old enough to remember the Kerner Commission. Even if you are, you’ve probably never heard of the Wickersham Commission, and certainly not the Lexow Committee—that one was convened in 1894, after all. But every single one of these was a commission formed in response to police outrages. They each stand alongside more modern commissions such as the Christopher Commission and the President’s Task Force on 21st Century Policing in their goal, their findings, their recommendations—and their results. Their goal—respond to public outcry about police outrages. Their findings—that police engage in routine brutality, lawlessness, and plunder. Their recommendations—that we prohibit these activities. Their results—well, the fact that we keep on having to have these commissions rather answers that question.

It’s worth taking a moment, I think, to read the reports of two of the earliest and the latest of these commissions in parallel: the Lexow Committee, formed in 1894 in response to the outrages of the NYPD under Tammany Hall, and the Department of Justice’s investigation of the Ferguson Police Department, formed in 2014 under President Obama in response to the killing of Michael Brown in Ferguson, Missouri. Here is an excerpt from the Lexow Report, printed in full starting on the first page of the New York Times on Friday, January 18th, 1895:

It was proven by a stream of witnesses, who poured continuously into the sessions of the committee that many of the members of the force, and even superior officers, have abused the resources of physical power which have been provided for them and their use only in cases of necessity in the making of arrests and the restraints of disorder, to gratify personal spite and brutal instincts, and to reduce their victims to a condition of servility.

Some of them [patrolmen] had been convicted of such assaults as many as two or three times, and yet had never been suspended from duty.

One hundred and twenty years later, the Department of Justice published their report via their website. Here are two excerpts:

FPD engages in a pattern of excessive force in violation of the Fourth Amendment. Many officers are quick to escalate encounters with subjects they perceive to be disobeying their orders or resisting arrest. They have come to rely on ECWs, specifically Tasers®, where less force—or no force at all—would do. They also release canines on unarmed subjects unreasonably and before attempting to use force less likely to cause injury. Some incidents of excessive force result from stops or arrests that have no basis in law. Others are punitive and retaliatory.

Public trust has been further eroded by FPD’s lack of any meaningful system for holding officers accountable when they violate law or policy.

The complaints in both reports are shockingly similar: the police plunder money from citizens, engage in brutality as it suits them, and avoid any consequences for the foregoing. In the century since the Lexow Committee, the police have merely found new ways to dress their brutality in the color of law, beyond the bare-faced thuggery of Tammany Hall—civil asset forfeiture, fees and fines and court debts, qualified immunity and reasonable fear and prison gerrymandering. The words change but the music never has. In 2020, at the height of the George Floyd protests, a group of former police chiefs and officers—all members of the aforementioned President’s Task Force on 21^st Century Policing—wrote in the New York Times “The problem is not that we lack a playbook for fixing the police. We have one. The problem is that we have not successfully followed the one we have.”  But if we have had the playbook for a hundred and twenty years, and we have spent a hundred and twenty years not following it, perhaps it’s time to rethink our approach.

Faction

So why has police reform failed?  And does the liberal tradition have the resources to respond to these failures?  I think the answer to the latter question is yes, and I think a good place to start looking for answers to the former is in the writings of James Madison. In The Federalist, a series of articles co-authored with Alexander Hamilton and John Jay in 1787 and 1788, Madison especially concerns himself with defending the idea of democracy against the problem of “the mischiefs of faction.”  In Federalist no. 10, “The Same Subject Continued (The Union as a Safeguard Against Domestic Faction and Insurrection),” he writes

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

The so-called “mischief” of faction was the ever-standing possibility that a faction might gain control of the power of government, and use that power to pursue its own gain at the expense of the public good. Madison himself was especially concerned with the problem of majority factions. Minority factions, he argued, would be easily brushed aside by “the republican principle, which enables the majority to defeat [a minority faction’s] sinister views by regular vote.”  Majority factions, on the other hand, might carry “a rage for paper money, for an abolition of debts, for an equal division of property” into national law.  (One suspects Madison’s direction of concern was not unrelated to the fact that he himself was a large landowner and slaveowner.) Consequently, the Constitution was furnished with the “checks and balances” so familiar from high school civics, all with the aim of preventing an ill-intentioned majority from trampling on the rights of minority interests, as he elaborates in Federalist no. 51, “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.”

In understanding the problem of faction, we should not follow Madison in every particular. The centuries since The Federalist and the convention in Philadelphia have revealed that the problem of faction is, if anything, significantly worse than he imagined. Minority factions in particular have demonstrated immense power to grind the gears of government to a halt, at least in part because of the many convolutions and veto-points Madison and his compatriots built into the American constitutional system, the simple majority vote he so prized in Federalist no. 10 having gone the way of the dodo at almost every level of government.

So how should we understand faction in the modern world? Madison’s definition of faction as a group united around a common impulse, passion, or impulse is a good place to start. Contra Madison, this impulse need not be conceived of as inimical to the common good—from a perspective of political analysis, rather than moral evaluation, there is no reason to include this criterion. Rather, factions have political aims or effects; they are to some degree invested in political change (or resisting such change), with no qualification as to whether that aim is good or bad. Given this, we can say that factions come in greater and lesser sizes, greater and lesser degrees of organization, greater and less unity, greater and lesser power. Factions can overlap, often in messy and conflicting ways: a given person is full of different impulses, passions, and interests, and may be a member of multiple factions—ACT UP, the Democratic Party, a small group of homeowners in their neighborhood.

Factions so conceived are a key concept in political analysis precisely because they are inevitable. As Madison writes in Federalist no. 10, “Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air.”  The conditions of liberal democracy, even more than other forms of human social organization, encourage the development of different interests, ideas, passions, and bonds of feeling. But there is a deeper reason for the inevitability of faction: as Hobbes notes, any individual cannot stand against a confederacy of others. For those with political aims who wish to see them implemented, there is no dispensing with confederacy, with cooperation—with faction.

Once formed, factions apply themselves to the levers of power available to them. Some of these levers are easier to pull than others; this is a matter of institutional design. Police again provide a series of useful examples:

• Police lobby for legal or procedural changes that maintain their power.
• Police work to control the media narrative concerning crime and danger through periodic press releases or individual contact with reporters.
• Police engage in work slowdowns.
• Police engage in direct action to oppose disfavored policies or politicians

This last is a rather anodyne way of recounting the police practice of arresting, beating, and maimimg citizens and journalists, bombing politicians’ homes, targeting their families, and engaging in large-scale arson and rioting—in other words, using their legal impunity and capacity for organized violence against political actors who might infringe on those prerogatives.

The first of these examples involves working within the regular order of law; the others involve increasingly extra-legal or illegal actions. This basic spectrum of options is of course hardly restricted to the police; factions of various kinds have all engaged in these varieties of behavior. The power of a faction goes well beyond the question of formal law, and includes that faction’s extra-legal capacity for organization and action.  This does not entail that law is irrelevant to this kind of extra-legal power; rather, law and policy can profoundly shape a given faction’s capacity for extra-legal action, as the example of police departments (whose numbers, arms, training, and solidarity are all state-funded) itself reveals.

This conception of faction and its power has implications for our conception of a liberal society. Contra Rawls et al., the precondition of liberal democracy is not the mere moral equality of human beings. It is to be found in the power structure of society’s factions. To reframe Madison: the republican principle consists of the idea that the power of the faction of the people as a whole outmatches that of private factions, at any given level of analysis. “Ambition must be made to counteract ambition,” Madison says in Federalist no. 51. One might instead say “power must be made to counteract power.”

Thus armed, we can return to the problem of police reform with a diagnosis, and a proposal.

1. Police reform has failed because the faction of the police outmatches the power of the factions that are set against it.
2. Therefore, police reform must begin not with specific policy changes, but changes in the structure of power.

Advocates of defunding the police have been admirably clear about this. Mariame Kaba writes, “The surest way of reducing police violence is to reduce the power of the police, by cutting budgets and the number of officers.”  But this is not the only possible interpretation of (2). Adam Gurri argues that the centralization of police functions at the state level would give the faction of the people, considered as an entire state, better leverage against its own police officers. 

Regardless of your opinion of the relative merits of these proposals, they are both framed in light of the central problem: localities have demonstrated a near-total inability to rein in their police departments. To put it starkly, a group of full-time, well-paid, well-trained, well-armed and well-equipped men, with deeply inculcated solidarity and fellow-feeling, often numbering in the hundreds, and given total power over public safety and security, have a tendency to outmatch a part-time mayor and city council. It is, in the end, no accident that founders like Madison were especially concerned with the problem of standing armies. Something in the balance of power must change before any durable reduction in police abuse can be achieved.

Meeting the Marxist challenge

Gripping as it is, let us step back for a moment from the specific case of police reform, and return to what I called the Marxist challenge. The great question of this age—of our foremothers’ age, and their foremothers’ too—is whether the great experiment called liberal democracy can long endure, or whether the overgrowth of faction, and especially factions dedicated to its overthrow, must of necessity flourish in its liberty and ultimately undermine it. These factions include not merely two economic classes, but numerous others. 

I have here suggested an answer, or at least the start of one: factions and their power are not some naturally-occurring feature of the social landscape. Liberal policies are not an epiphenomenal superstructure on the inevitable base of class relations; rather they themselves shape and inform a base composed of factions. Which factions are encouraged and which not, what levers are made available for them to exert power, what interests are set against them—these are matters of policy and institutional design. This suggests a roadmap for approaching the problem of faction according to liberal principles: ensure that in any given policy or political arena, the faction of the people (as expressed through elections and representatives) outmatches the power of private factions. Beyond police reform this idea has implications for electoral reform, for urban development policy, for wealth taxes, for numerous other questions of our time. But those are topics for another day.

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Featured Image is the Police Riot of 1857