This is Brad DeLong's Grasping Reality—my attempt to make myself, and all of you out there in SubStackLand, smarter by writing where I have Value Above Replacement and shutting up where I do not… Is it "Life, Liberty, & Democracy", or Is It "Life, Liberty, & Property"?Democracy’s failure modes in the age of the Shadow Docket. Trump gives new life and force to the fears of Friedrich von Hayek. Spite-dictated tariffs and funding whims now discipline America’s...
Democracy’s failure modes in the age of the Shadow Docket. Trump gives new life and force to the fears of Friedrich von Hayek. Spite-dictated tariffs and funding whims now discipline America’s barons. That silence you hear? It’s power learning fear. We used to litigate before we confiscated; now we confiscate, then maybe litigate. Try unscrambling an egg after ten months of executive tantrum. Liberalism prizes dignity and citizenship, but without secure property, freedom collapses fast. Hayek saw the sequence; today’s Shadow Docket proves it…
Liberalism’s hierarchy—human dignity, self-governance, then prosperity—works only if prosperity and property are secure enough to sustain speech and safety. Hayek’s uncomfortable worries are now empirical: with SNAP suspended and tariffs weaponized, freedom from want, fear, and even speech depends on market stability. The Shadow Docket has short-circuited process, letting executive whims disrupt organizations before courts adjudicate laws and equities. Democracy’s failure modes—majoritarian cruelty, minority vulnerability, personalized spite—are live. When property becomes contingent on presidential favor, America’s barons learn to be quiet. The question isn’t socialism versus markets; it’s whether any rule-of-lawframework survives executive confiscation by Shadow Docket. Mike Brock wants a “classical liberalism” that centers democratic self-governance and treats economics as instrumental. But since January 2025, short-run judicial indulgence via the Shadow Docket has turned tariffs and appropriations into levers of personal dominance by whim. For-profit corporations, non-profit universities, and many others now face existential risk if they cross the executive’s mood, even if they have solid contractual rights to the money flows they had relied on. And so the barons of American society have discovered silence. The old rule-of-law sequence—authorize, regulate, enjoin, adjudicate—has become reverse-engineered into “act now, litigate later.” If the court reverses months on, the egg is already scrambled. Thus we need to register, once again, von Hayek’s reply to civic-first liberalism is sharp: without solid property and predictable markets, freedom from fear and want dissolves, and speech will follow. Yes, property-first liberalism requires an equitable distribution of property to avoid falling into different failures modes. But is quite clear right now what the most concerning failure mode is. What should “liberalism” be? Mike Brock has a view:
What do I think? I think Friedrich von Hayek would have a good reply: Without a market economy with private property dominant, you cannot have freedom from fear, and soon will not have freedom of speech, and—as we see now with the suspension of SNAP—freedom from want requires prosperity, property rights, and equitable property distribution even with formal rights to life and liberty, and to democracy. Just look around you! Well-distributed property and prosperity is not secondary, but primary to human dignity meaning anything. And democracy has failure modes that keep it from being a sufficient guarantee, as all minorities know in their bones, and as majorities occasionally find out, when they discover that their elected leader is Plato’s Werewolf. Look at Donald Trump: the corrupt Republican Supreme Court and the supine corrupt Republican House and Senate caucuses have, so far, given him the power to take the functional property of our large organizations and those who rely on them at whim, and out of spite. Laws that create money flows to organizations—good laws—are executed at his whim, and the organizations know that if they anger him they are in crisis. The globalized value-chain economy has created a world in which tariffs can destroy the profitability of almost all large- and medium-sized corporations, and corporations know that if Trump reacts to any of their words or deeds with spite, they too are in crisis. And as a result it turns out that Donald Trump has astonishing power to enforce acquiescence and silence upon the barons of American society. Back before January 2025, changes in money flows and in tariff levels by the federal government were lengthly processes that went through full congressional authorization or appropriation, or perhaps through formal rulemaking findings under the Administrative Procedures Act. If a legal dispute arose, the change was enjoined until a full adjudication could be conducted. Since January 2025, however, the six corrupt Supreme Court justices have used their Shadow Docket to, much more often than not, lower-court decisions enjoining changes. Thus for a short run which has now run for ten months, Trump essentially gets to do exactly what he wants to property. Back in the Day, if King William the Conquerer wanted to deprive Hugh “Goch” de Montgomery of his Earldom of Arundel, there were procedures to be followed: the kind would declare Hugh in breach of his feudal obligations, a royal court session—the curia regis—in which the tenants-in-chief and the great officers of the household and state would assemble, and after the evidence of breach had been presented, there would be a decision of “the king with the advice of his council”, with the king knowing full well as he made his decision that while he was stronger in his fighting tail than any one of his barons, that he was not stronger than them all and that their castles were strong. And so the forfeiture and escheat would be conducted. But today? It happens at whim. And if in the end some full adjudication reverses the decision of the Shadow Docket that Trump gets to disrupt such-and-such an organization at will? Good luck unscrambling the egg and returning the situation to any sort of approximation to the status quo ante. Today’s globalized value-chain economy magnifies idiosyncratic executive tariffs into corporate kill switches. Even the best appropriations laws become discretionary money flows whose faithful execution is contingent upon Trump’s non-malevolence. The congressional majority is unwilling to cross a president of its own party out of fear of electoral disaster. And misuse of the Shadow Docket denies the timely injunctions that, before January 2025, made money flows and tariff rates contingent upon procedure and thus matters of laws faithfully executed. Minority protections and majoritarian checks. Do they help when property is functionally revocable at the whim of the election by a transient majority of someone who turns out to be Plato’s Wereworld The result is acquiescence from America’s élite barons. There are, right now, big potential financial costs to being on the list of the top thousand contributor to the Democratic Party. Liberal democracy needs prosperity as condition, not prize; otherwise, “democracy” becomes a stage set over a confiscatory state. Von Hayek knew this. We are relearning it. References:
If reading this gets you Value Above Replacement, then become a free subscriber to this newsletter. And forward it! And if your VAR from this newsletter is in the three digits or more each year, please become a paid subscriber! I am trying to make you readers—and myself—smarter. Please tell me if I succeed, or how I fail…#is-it-life-liberty-democracy-or-is-it-life-liberty-property |
| ||||||||||
No comments:
Post a Comment