The problem with appealing to “Burkean conservatism,” as Prof. Orin Kerr does, in explaining his position on the Individual Mandate cases, is that Burkean conservatism really doesn’t mean anything at all. What I mean by that is what I said in my article Some Problems With Spontaneous Order. “Burkean”* is generally taken to mean slow, gradual change, as opposed to the allegedly radical alternative of “rationalism.” Rationalists, we’re told, make their political or legal arguments on the basis of first principles, disregarding or slighting historical practice and traditionalism, and thereby causing various forms of unforeseen disruption. Rather than this disruption, we ought to prefer slow, gradual progress and incremental implementation of pragmatic movements.
As I wrote in my post, “The Romance of Gradualism,” (and its sequel) what this boils down to—if it boils down to anything at all—is just go slowly. But there are problems with go slowly. First, go slowly disregards or slights the injustices that occur in the interim. When Prof. Easterly claimed that “The gradual path has worked wonderfully for the U.S.,” all he was saying was that in the long run, we’re all dead. Surely he was not talking to southern blacks, or gays, or women. Incremental change only puts off curing injustices, often until it’s too late. Moreover, it often means that when we finally do act to change the injustice, it’s far harder to do so than it would have been, precisely because we took so long and moved so slowly at the outset. Sometimes it’s best to rip off the bandaid quickly. No, not always—but sometimes. And the problem with the “Burkean” is that he cannot tell when it is or is not, because his hostility to “rationalism” is—ipso facto—not rooted in rational principle, but in emotional preference and traditional practice. The truer the “Burkean,” the more Panglossian he actually is.
What’s more, as I wrote in my Spontaneous Order paper, gradualism is in the eye of the beholder. Kerr seems to regard a decision striking down the Individual Mandate as a radical step that would overthrow decades of case law. By contrast, those of us who oppose the Mandate believe that a decision upholding the Mandate would be a radical step that would overthrow, or at least extend without precedent, the powers of Congress. Each lawsuit, regarded as a discrete episode, is a radical new thing. But take ten steps back and look at the same case in the context of decades of case law, and now it’s just a small piece of the overall Spontaneous Order.
“Burkeanism” really survives for two reasons. First, because it conveniently allows the speaker to avoid committing himself to principled stands, thereby allowing the speaker to look objective and above-it-all, and second, because it is infinitely malleable. Anyone, at any time, in any circumstance, can claim to believe in “Burkean” (or Hayekian) gradualism, because any act whatsoever, no matter how dramatic and unprecedented, can be regarded as part of the gradual evolution of society or law or politics—contrariwise, every teensy, relatively insignificant change in practice can be regarded as a radical departure from tradition! The difference is entirely determined by which end of the telescope the speaker decides to look down—which is to say, the purported distinction between “constructed” order and “spontaneous” order, or between gradual, incremental change and radical innovation, is subjective and, as far as social science is concerned, utterly trivial.
Consider, for another example, gay marriage, or the desegregation cases that Hayek had in mind when writing the Law, Legislation And Liberty series. These are radical, unprecedented, extreme steps, no? Ones that break dramatically with centuries of tradition. But on the other hand, they’re relatively minor steps, compared to such upheavals as the Civil War, or the Holocaust, or the pogroms, and they’re certainly implied in the American constitutional promise of equality. Just as Hayek himself could conveniently dodge either way on these issues, so any “Burkean” can use this radical/gradual pivot to describe anything whatsoever as extreme (bad) or as just a gradual step (good) depending entirely on his mood at the time.
Saying you’re a “Burkean” means not only never having to say you’re sorry, but never having to commit yourself to a principle of justice or lawfulness (or “line-drawing,” as Prof. Kerr calls it). But lines cannot not be drawn, and every line will be regarded by those on one side of it as radical, and those on the other as gradual. Our only recourse is to draw those lines, as best we can, on the basis of “rationalistic” or “constructivist” grounds—i.e., principles of justice. It is not wisdom to pretend there is any other way.
Please consult my Spontaneous Order article for more.
*-I put “Burkean” in quotation marks because it is not clear to me that Edmund Burke himself would approve of the use of his name to describe the slippery, purposely unprincipled gradualism so often attributed to him.
