The principles are simple to enumerate: No income taxation (except during the Civil War), Social Security, Medicare, Medicaid, welfare, economic regulations, licensure laws, drug laws, immigration controls, or coercive transfer programs, such as farm subsidies and education grants.  —  Jacob G. Hornberger, “Liberal Delusions about Freedom“

He notes, too, the lack of regulatory agencies like the EPA and OSHA, and the right for everyone “to pursue an occupation or trade without seeking the permission of the government.”

The first, and simplest response to this, of course, is “who is ‘everyone’”? African-Americans were mostly enslaved until after the Civil War — were they free “to pursue an occupation or trade”? Did the Jim Crow laws of the late nineteenth-century South provide extra liberty for those former slaves?

Women could not vote and were — at various times, more or less — the property of their husbands. Were they “free”? (See David Boas, “Up from Slavery,” for more on this.) Thus, any nineteenth-century libertarian “utopia” is immediately undermined by the lack of freedom for so many.

But beyond this simplistic and obvious critique lies a deeper reality: Americans in the nineteenth century did not live without rules, regulations, and laws, and did not rely strictly on private contract and personal responsibility to conduct business or to handle social relations.

William J. Novak, in The People’s Welfare: Law and Regulation in Nineteenth-Century America, writes:

[It] was a public society in ways hard to imagine after the invention of twentieth-century privacy. Its governance was predicated on the elemental assumption that public interest was superior to private interest. Government and society were not created to protect preexisting private rights, but to further the welfare of the whole people and community.[2]

I have previously written, for example, about the extensive use of the state police power (which has little to do with modern “police”) to impose coercive quarantine requirements in colonial America:

Quarantine … was state-sponsored. It would be applied to incoming ships if smallpox was suspected, but there was no articulated provision for allowing any particular to leave quarantine early. The concept was to protect the public as a whole, not to preserve individual liberties.  —  Kristopher Nelson, “Smallpox inoculation and quarantine in colonial America.”

Novak lists the variety of New York laws passed between 1781 and 1801, all focused on regulating life in the young state. Regulations focused on “lotteries; hawkers and peddlers; the firing of guns; usury; … rents and leases; … counselors, attorneys, and solicitors; … strong liquors; … debtors and creditors; poor relief” and much more.[3] This was not Hornberger’s nineteenth century, free of “welfare, economic regulations, licensure laws, [and] drug laws.”[4]

Again under the aegis of “police power”, Novak notes, “railroads were ordered to reconstruct bridges for the public welfare … and private dwellings were summarily destroyed when found inimical to the public health or safety” — and without compensation to the owners.[5]

Still, this was different than modern regulation in a key sense: it was local and state-based, not federal and nationwide. The reach of an individual law was typically only as far as the city, county, or state line. But they were small, localized invasions, not national ones. And as the federal reach grew, so the importance of the federal Constitution and its protections grew too.

The failure of this local jurisdictional model (which is not equivalent to the “small government” call of modern conservatives) came with the explosion of interstate commerce towards the end of the nineteenth century, when corporations (led by railroads) grew beyond the jurisdictional reach of any individual locality or state. Thus, by the late nineteenth century, robber barons set their own rules, and monopolies grew more powerful than governments.

The coalescing of economic — and thus effective political — power in the hands of a few monopolists set the state for the twentieth-century growth of the modern, federal, nationwide regulatory and administrative state that libertarians rail against.

The big twentieth-century shift was not from an unregulated life to a regulated one, but rather from thousands of local rules that differed across the country to concentrated, interstate rules that applied everywhere — all in response to problems that themselves crossed state lines and jurisdictions.

The nineteenth century was different than the twentieth, but it was not a libertarian utopia of liberty and freedom from rules and regulations — those were everywhere, and could easily be more invasive (laws regulating morals, like forced Sunday closers of business are a good example) than anything the twentieth century brought us.

One pertinent example: most biologists look at the diversity of species and say that evolution by natural selection (with at least a hint of randomness) is the best explanation, whereas believers in Intelligent Design see God’s hand at work. Given a certain view of available evidence, both explanations might be possible (especially if an all-powerful God simply creates everything, including fossils, in situ). So how can we resolve this problem whereby a set of facts can justifiably be argued to support multiple potential theories?

One approach is to limit ourselves to certain kinds of theories as potential explanations: science tends to allow for only theories that are potentially testable, verifiable, falsifiable, etc. Most scientists say, despite arguments to the contrary, that the existence of a divine presence guiding evolution is simply out of bounds for scientific inquiry. It’s a matter for faith, not empirical inquiry; it’s religion, not science.

Of course, as John Hedley Brooke points out, the meaning of the terms “science” and “religion” has changed over time, and “it is more appropriate to speak of ‘sciences’ and ‘religions.’ When we do, any simple dichotomy loses its rigidity” (297). Thus, for example, the term “science” once included any organized body of knowledge (which would have included theology), though now it has a more specific meaning. “Religion,” too, only emerged as a useful term when “comparative approaches were needed for the analysis of different cultures … in the Enlightenment” (297). Still, the distinction is at least analytically useful, and however historically suspect, it is relied upon by most writers today.

Another approach to managing the (potentially illusory) conflict between science and religion is favored by Owen Gingerich, astronomer and author of God’s Universe. He turns to Aristotle to help differentiate two kinds of explanation put forth by science and religion. Put in Aristotelean terms, faith can be seen as a search for “final” causes, while traditional science could be said to stick instead to “efficient” causes. There is thus no conflict between science and religion, and no worries about underdetermination traceable to this conflict, since each explains different things.

Gingerich looks to Blaise Pascal’s notion that “some things only the heart knows” to explain this idea and justify his belief in (small case) “intelligent design.” Since science cannot know or determine certain truths (final causes, in Aristotelian terms), we can freely posit a (distant) intelligent designer without worrying about stepping on scientific concepts of proof. In essence, two truths become simultaneously possible, because they occupy different domains of truth. Intelligent Design (not Creationism, and not the lower-case “intelligent design” of Gingerich), on the other hand, believes that science can be used to access the truth of an intelligent creator, and that this search is scientific.

Creationism, on the other hand, tends to reject science more firmly (but not, interestingly, technology). It inherits from a tradition of the literal exegesis of scripture used, for example, in the 16th century. Of course, today’s Biblical literalism is only related to, but not identical with, 16th-century exegesis. After all, bringing in a passage of scripture today is no longer a means of shutting down debate.

So how did followers of Copernicus in the 16th century deal with the issue of causation, given the power of Biblical exegesis at the time? They did so by arguing that scripture itself underdetermines potential explanations — even if it can shut down blatantly conflicting theories. Relatedly, Johannes Kepler tried an accommodation approach with literalism. He maintained that God, in order to be understood by normal people, caused the Bible to be written in ordinary language. This is why there are no discussions of epicycles in the Bible. The Bible thus accommodates ordinary folk with a different, non-scientific vocabulary that, if read correctly, does not conflict with science.

Of course, many — most? — of today’s scientists simply step outside of the argument, and point to materialist, naturalistic explanations as being all that is necessary for science — certainly they are the only valid scientific theories — even in religion can provide different kinds of explanations (which may or may not be important to the scientists personally). And how do they often justify this? Because these explanations work. Certainly this is the approach taken by most engineers and developers of technology, and perhaps, then, this is why Christian fundamentalists and Muslims have no trouble reconciling their faith with structural engineering or software development. They focus on the science that works in a materialist sense, and not the science that raises uncomfortable questions (evolutionary biology, for instance).

Alternatively, if this approach to dealing with underdetermination is dissatisfying, then there is always the choice to go to absolute knowledge, as David Bloor reminds us: if the Pope says it’s true, then no doubt exists, and we escape the problem of underdetermination and uncertainty. The Catholic Pope is not the only option, of course. Islam, despite its lack of central authorities, also relies on the authority of absolute knowledge — revelation from the Qur’an — to solve the problem of underdetermination. Medieval Islam appears to have successfully negotiated any potential conflict between Qur’anic knowledge and scientific knowledge. Modern Islam, on the other hand, is arguably still searching for the proper balance. Modern evangelical Christianity, too, seeks a new balance between science and faith.

Porter quotes Richard Hammond’s observations:

In a country where mistrust of government is rife, the temptation to substitute supposedly impersonal calculation for personal, responsible decisions … cannot but be exceedingly strong. (195)

Porter goes on to refer to Sheila Jasanoff‘s observation that “Americans fear expertise … yet insist that administrative decisions be depoliticized” and thus “oscillate ‘between deference and skepticism toward experts’” (195). The United States — which “continues to nourish a distinguished tradition of anti-intellectualism” — paradoxically seeks “experts who are not intellectuals or men of culture at all” (195). Porter writes:

Procedures have become as important as outcomes, and rules may be maintained even though they are unable to accomodate new kinds of relevant scientific information (197).

The Courts

American courts generally emphasize process, too, encouraging the application of rules by courtroom experts: “science should mean the straightforward application of general laws to particular circumstances” (195). Attorneys attack courtroom experts for having personal opinions and unique approaches to their studies. “General acceptability” was the core component of Frye, and the modern standard for acceptance of expert testimony (Daubert) emphasizes this factor too (though it expands beyond it).

The Supreme Court’s “hard look” doctrine emphasizes this, too. That doctrine requires judicial review of agency decisions are “arbitrary and capricious.” It requires administrative agencies to maintain a proper record of evidence and actions, adequately consider evidence and various analyses, and explain their reasoning. The doctrine is not intended to emphasize outcomes, but rather to encourage objective process. Even this doctrine, aimed as it is at process and not outcomes, has been attacked as too political (i.e., not objective enough):

Administrative law doctrines for reviewing agency rulemaking currently give judges a significant amount of discretion to invalidate agency rules. Many commentators have recognized that this has politicized judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on the basis that they disagree with the policy decisions of a presidential administration. Keller, Scott A., “Depoliticizing Judicial Review of Agency Rulemaking,” 2009.

United States vs. Europe

The American approach — the way agencies make decisions and the way courts review those decisions — is distinctly different from how it’s done in Europe. Although they vary in their details, in general, all European approaches “are capable in some measure of formulating policies and determining how to apply them through negotiation with the interested parties, behind closed doors” (197). For good or ill, European states tend to institutionally trust their elite experts and the agencies they staff — but American agencies today lack this kind of citizen trust:

American regulatory agencies are forced to seek refuge in ‘objectivity,’ adopting formal methodologies for rationalizing their every action (197).

It hasn’t always been this way in the United States. American administrative agencies really only grew as outgrowths of the New Deal’s attempt to rationalize, control, and improve the economy during the Great Depression. These agencies — and the few that preceded them — were staffed by experts, driven by numbers, and depended on expert judgment and expertise in ways that are quite similar to their modern European counterparts (198).

Citizen Standing and Openness

The 1960s brought a new focus on citizen involvement in agency decisions. “Openness” was the “antidote to self-interest and to corruption masquerading as expertise” (198). The 1966 case, Office of Communication of United Church of Christ v. FCC, 359 F. 2d 994, exemplified this trend:

This was the case that began the process of opening the regulatory and judicial processes to everyday citizens by granting legal “standing” to citizens. The expansion of standing enabled regular citizens to be heard before regulatory agencies and to bring actions in court, amplifying the amounts and types of political issues taken up in the public arena. Horwitz, Robert, “Broadcast Reform Revisited: Reverend Everett C. Parker and the ‘Standing’ Case,” The Communication Review, Vol. 2, No. 3 (1997), pp. 311-348.

Problems and Contradictions

The attempt to bring openness and greater democracy to agency decision-making succeeded in bringing greater citizen scrutiny and input to the exercise of expertise. It came as a reaction to behind-the-scenes decisions that appeared to favor established interests. Thus, citizen-activists fought against agencies that appeared too close to the companies they regulated — and often succeeded in opening up their processes.

But this didn’t necessarily result in better decisions.

Agencies responded with a greater use of, in Porter’s terms, “mechanical objectivity” in place of expert judgment. Additionally, the critiques used to attack agency expertise began to be turned against scientific and medical expertise more generally. Thus, anti-vaccination campaigners accuse medical experts of profiting from vaccines and acting as “willing conspirators cashing in on the vaccine fraud’ or pawns of a shadowy vaccine combine.” What was once an attack on an FCC that consisted of former broadcast executives has become an attack on doctors who favor broad public-health mandates and on climate scientists who warn about the dangers of human-induced climate change.

Millenarianism — the belief in the end of this world and the coming of the next — is, in Noble’s view, a key driver of early proto-scientists, at least those in seventeenth-century England. There was, he argues, a sense at the time that the Fall of Adam from Eden “could be reversed” (45).

He describes these “Puritan Baconians” and their utilitarian and millenarian outlook as giving formative shape to modern science. He argues that these early scientists were really technologists: the early founders of the “new scientific academies … tended to view science as technology … as an enterprise … bound up … with the useful arts” (57).

Connected with this utilitarian perspective, for Noble, is the strong connection between scientific pioneers and early capitalist enterprise (59). He points to Robert Boyle’s father and other early Royal Society members who “were involved in such industries as tobacco, distilling, and trade” (59).[1]

Noble suggests, though, that these “founders of modern science” eventually moved away from earlier views of recovering Eden and, “with increasingly more hubris than humility,” began to speak of achieving of an understanding of divine creation itself, instead of the lesser focus on Adam’s knowledge characteristic of earlier times (62). In other words, they moved from being content with a focus on technology and “what works” to become scientists focused on questions beyond the materialistic.

Increasingly “mechanistic scientists” began to divorce God and creation, and to view God as outside his clockwork universe. They began to imagine themselves as occupying a similar, God-like perspective, one that gazed from “outside of nature”:

For Newton, then, to uncover the hidden logic of the universe was to understand and in that sense identify with, the mind of its Creator. (63-65)

This was very different from earlier views of “God in nature” that earlier hermetic and alchemical traditions — predecessors of modern “technoscience” — held.

In short, Noble argues that these early scientists began to dispense with a humble pursuit of the divine in nature and to instead view themselves as gods (67). (Perhaps a dislike of this hubris is why he identifies himself as a modern-day Luddite and refuses to use email.)

In his descriptions of eighteenth century European science, Noble continues to emphasize the importance of millenarian beliefs to the science and technology of this time. For example, Joseph Priestly, known for his work in electricity and with oxygen, insisted on the connections between his scientific work and his religious views, which included a belief in prophecy and Revelation. Priestly focused on the “practical application of science” to further the goals of “both immediate utility and millennial preparation” (71).

But it was not just Priestly. Religious belief generally motivated early scientists in this time, according to Nobel, who writes that Michael Faraday, known for his work with electricity, was involved in a sect of fundamentalist Christianity that focused on a very literal interpretation of the Bible (71). Charles Babbage, mathematician and industrial inventor, also focused on arguments “in favor of religion” (72). For Noble, religious belief and scientific pursuits were both unified and mutally supportive — at least in the minds of eighteenth-century European scientists.

Noble next moves into what I think might be the most intriguing aspect of this section of his work: his investigation of the role Freemasonry, including its “devoutly religious” — if anticlerical — beliefs, played in fostering scientific advances and improving the “useful arts” (77).

As the eighteenth century progressed, the technological Freemasons proved to be “among the earliest advocates of industrialization” and served as “midwives” at the birth of the “latest incarnation of spiritual men, the engineer” (79). Noble writes: “As the founding fathers of both the engineering profession and engineering education, the Freemasons passed on the legacy of the religion of technology to modernity’s ‘New Man’” (79).

Moving into nineteenth-century science, Noble turns his attention to Auguste Comte and his positivist system. Positivism, he argues, is “strikingly reminiscent of the Christian goal of a transcendent recovery of mankind’s original divine image-likeness and dominion over nature” (84). As with the millenarians, writes Noble, for positivists the “world’s transformation was inevitable and imminent” (84).

Marx and the socialists shared Comte’s “technology-inspired millenariasm” and carried the old beliefs forward into a “new secular age” (86). Comte and the positivists may have rejected nineteenth-century religion as unscientific, but, according to Noble, the scientific worldview they adopted instead was remarkably like the religion it replaced.

In a later chapter he calls “The New Eden,” Noble turns to America, where he believes “the useful arts became wedded to Adamic myths and millennial dreams” as “nowhere else before or since” (88). In America, “scientific and industrial revolutions followed in the wake of religious revival” (90). Technological inventions in America carried with them religious meanings. The telegraph, for example, was viewed as “divinely inspired for the purpose of spreading the Christian message farther … bringing closer and making more probable the day of salvation” (94).

In nineteenth-century America, religion and technology were neither distinct nor disconnected; instead, they both reinforced and strengthened each other.

But despite this deep connection between technology and religion, religion in the twentieth century moved away from being a driver of both technological invention and scientific innovation. Increasingly, religion has been seen as oppositional to science and technology.

Still, for many Christians this opposition is uneccessary and even problematic. For example, Noble explains tht NASA — at least into the Shuttle years — contained many devout Christians who saw their missions to space in deeply religious terms, and saw no conflict between their scientific and religious missions.

But what can one make, then, of the Young-Earth Creationismisms rejection of geological and evolutionary sciences? Or the ongoing attempts by Christian evangelicals to “teach the controversy” of evolution in high-school classrooms? Does this kind of fight prove Noble’s integration thesis wrong?

While I don’t think Noble fully answers these questions, his focus on technology perhaps suggests an answer. Science — or at least, some kinds of science — are not easy for some modern Christians to accept. But technology, even missions to the Moon or Mars, are much more readily reconciable with faith. They are, in older terms, explorations of God’s world, not challenges to God’s supremacy.

1. Take small steps.
2. Favor reversibility.
3. Plan on surprises.
4. Plan on human inventiveness.

James C. Scott presents these four rules in his book, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, a 1998 exploration of the history of major failed state projects (like Soviet collectivization and Tanzanian forced villagization). His work focuses on the necessary (for failure) intersection of state’s seeking to order a society, a “high-modernist ideology,” the existence of sufficient state power and an authoritarian desire for control, and a civil society that doesn’t resist.

But what does this have to do with your latest project?

Even if you aren’t planning a major state project, Scott’s advice is remarkably useful for anyone:

First, take small steps.

Scott suggests a humble approach: “presume that we cannot know the consequences of our actions in advance.” To deal with this ignorance, take small actions, then step back and observe the result. If you’re moving everyone in your company to Google Docs, try a pilot project first and see how it works. If you’re moving all your servers to the cloud, try doing it system-by-system (or some other smaller unit), rather than all at once.

Second, favor reversibility.

Remember, writes Scott, “Irreversible interventions have irreversible consequences.” If you’re switching to a cloud environment, consider keeping your old servers around for a few months, just in case you need to roll back. If you’re launching a new site (perhaps in an A/B testing fashion for a pilot group), don’t destroy the old system — just in case. For programmers, Git and similar version-control systems are key to this process — and non-programmers can leverage the same idea in other contexts.

Three, plan on surprises.

Given a choice, “[c]hoose plans that allow the largest accommodation to the unforeseen.” If you’re planning a farm, choose and prepare land that can support a variety of crops. If you’re building an API, allow for flexibility in use — don’t try to lock developers into on way of doing things — APIs like JSON, for example, can be accessed by a wide variety of programming languages, and allow for much wider developer base. If you expect a maximum of 10 API calls per day per developer — make plans to handle 10,000, just in case. Cloud computing excels at this kind of surprise capacity scaling.

Four, plan on human inventiveness.

What is a liberal democracy?

First, of course, it’s important to define what a “liberal democracy” is. The term liberal, unfortunately, has acquired a negative connotation for many today, especially amongst conservatives in the United States.

But “liberal” in this sense is not the opposite of “conservative”; liberal instead is aligned with governance through public decision-making and public discussion. “Liberal democracies” are thus democracies where the majority of people are eligible to vote and where, generally, the “rule of law” is established through some form of constitution.

It is, in Stephen Turner’s definition, “government by discussion.” There is one exception: religion, because of lessons learned after centuries of religious warfare, is generally removed from the discussion as being incompatible with civil debate. This has been done either through explicit state neutrality (the First Amendment) or through the establishment of a single, state religion along with tolerance for other faiths. The United States is a liberal democracy; Saudi Arabia is not.

An illiberal democracy might be a society in which citizens vote, but the terms of the debate are constrained through propaganda, censorship, or theology. Thus, many illiberal states, like North Korea, claim to be “democratic,” but most citizens of liberal democracies would disagree.

The problem of expertise

If free discussion and debate is core to liberalism — as Turner, backed by old-school liberal theorists like John Stuart Mill, argue — then anything that interferes with public debate and decision-making also moves a society away from liberalism (note, once again, that this is not the opposite of conservatism in the modern sense).

In a classic liberal democracy, public opinion — influenced through civil discourse and debate — is the basis of political action. But how can one have an effective political discourse when only experts understand the terms of the debate? We can all understand and participate in — at least in Turner’s view — debates over, for example, the extent of the voting franchise (“votes for women!”), but how can the lay public effectively decide if tobacco ought to be classified as a drug? Or if the MMR vaccine causes autism or not? Or whether global climate change is real?

These kinds of questions require scientific evidence to fully answer, but that evidence is difficult for non-experts to fully assess. Without the subject-area knowledge, lay participants frequently over- or under-value key evidence, confuse correlation with causation, or simply fail to follow the science.

However, turning such decisions over to experts in the subject conflicts with a core ideal of a liberal democracy: that a public debate ought to determine public policy.

Trust

If we simply trusted experts, then practically, at least, this conflict would largely disappear. We could simply establish commissions or groups of experts to evaluate problems and then provide solutions — much as the European Union does it (though not without criticism).

But a number of factors have combined to create a sense of distrust of experts by the American public. DDT, Three Mile Island, and Bhopal damaged the trust in science of progressives; a rise in religiosity, growing dislike of government regulation, and an increasing perception that scientists are “liberal” (in the contemporary sense) correspondingly degraded conservatives’ trust in science.

As a result, it has become untenable to leave decisions on issues like global climate change in the hands of experts — but as a result, rational, logic-based discussion and debate by educated and informed participants — another core value of a liberal democracy — has become rare.

Solutions

Turner suggests that creating pseudo-juridical, adversarial debates by experts might increase trust in the results. After all, we trust a similar approach to administer the death penalty — but we certainly don’t trust the lawyers who control the process! It’s an interesting, if impractical, concept, partly implemented already through the tort system, but unlikely to be extended elsewhere.

Alternatively, Turner suggests we adopt European-style commissions, but that we make them accountable to the public for their decisions in some fashion. This is effectively the path that has been adopted domestically and internationally, although it is not without its controversies — and does little to resolve the tension inherent in experts making decisions instead of the lay public.

To re-include the public in expert decision-making — or at least to create a public capable of effectively reviewing and scrutinizing expert commissions — the only real solution I see is education. While this may be inadequate to turn average citizen into domain experts, it would at least help make citizens capable of evaluating and assessing experts themselves, along with the logical reasoning of their decisions, more effectively.

Conclusions

Although it feels like this conflict is new the tension between experts and public decision-makers is not unique to today’s liberal democracies. But I think Turner might be correct that the incredible complexity of today’s science and evidence has compounded the tension into a crisis.

Additionally, the long-standing exclusion of religion from anything but moral decision-making — or, alternatively, the extension of science into the realm of theology — has created a new level of crisis. Free discussion in the Millean mode is simply impossible when faith and theology fully determine the outcome for a sizable percentage of participants.

There is no simple solution for any of this. Education is helpful, but not decisive; transparent mechanisms of science and government also help, but are not determinative; and letters to the editor from distinguished scientists can only go so far in re-establishing scientific authority.

Bacon and Comte

Turner begins with Francis Bacon’s “The New Atlantis” (1627). Although Bacon’s work was more political theory than scientific article (“science” in its modern form did not yet exist, nor did “scientists”), he nonetheless put forward a theory of knowledge based on induction and articuled a view that valued the knowledge of experts — a knowledge based on experience rather than more traditional forms of authority (34). (What about Bacon vs. Edward Coke, proponent of common law and the rule of law?)

Blithly moving ahead to 1793 — when science had actually begin to emerge in a more recognizably modern form — Turner picks up the story again with Condorcet’s “promot[ion of] the idea that science was the engine of human progress.” Condorcet, says Turner, believed in science and its benefits, but also thought the “the production of these benefits required state action” (34).

Condorcet’s main focus of state action is education — but he acknowledged that the point of that education was to create “collective submission to reason and science.” Educated citizens would choose their “intellectual betters” as leaders — essentially a “regime of expert rule, with democratic consent” (35).

Saint-Simon and Comte

Turner argues that Saint-Cimon took the implications of Condorcet’s ideas — ”that social knowledge allowed for the replacement of politics” — and radicalized them (35). Saint-Simon believed in “scientists as the saviors of society,” and argued — in a pre-Marxist fashion — that “the rule of main over man would be replaced by the ‘administration of things’” (35).

Comte, secretary to Saint-Simon and the founder of the new discipline of “sociology,” turned Saint-Simon’s ideas into “Positivism,” a new philosophy of science and politics (35-36). Comte’s Positivism reject the “liberalism” of John Stuart Mill (and other English philosophers like John Locke) in favor of the rule of the expert (36). Science would provide the model “for overcoming the ‘anarchy of opinions’ by providing consensus” (36). The “authority of science,” he believed, ought to “be imposed on the ignorant, just as the dogmas of Catholicism had been so effectively imposed in the past” (37).

John Stuart Mill

In the mid-nineteenth century, Mill advocated “liberalism” — a political theory grounded in governance by discussion that invested power in the general public — as opposed to aristocrats, technocrats, or bureaucrats. But he was caught between his belief in free discourse as a model of liberal democracy, and his equally powerful belief that “the canons of induction lead to proven knowledge” (37). Mill never resolved this tension between lay decision-making and scientific truth-finding.

Pearson and Mach

Ernst Mach and Karl Pearson, writes Turner, are “transitional figures” between Comte and Communists theories of science of the 1930s (38). Both oriented science toward “efficiency.” Both were deeply concerned with ideas of consensus.

Pearson, in particular, believed in the power of the scientific method to “assure[] consensus without force” (38). But how can general citizens join this consensus? Again, like Comte, Pearson advocated both education and popularization — but only the experience of actually studying a small area of science closely could really inculcate the proper frame of scientific mind (39). If citizens could generally experience this too, it would “produce consensual politics without coercion” (39).

Science, Culture, and Politics

Do advances in science depend on cultural conditions? Or is science the “prime mover”? Philosophers like Alfred North Whitehead and socioligists like Sorokin and Max Weber saw Western civilization as enabling the growth of science, and not the reverse (40).

Early in the century, “efficiency” became the watchword, and scientific and engineering solutions were proposed as ways to resolve social issues. Otto Neurath and others argued that Socialism and the “planned economy” were scientific and efficient, and therefore both practical and desireable (40).

John Dewey promoted the experimental method as the best way to solve problems in human affairs, “replacing ‘custom’ and attachment to traditions, such as constitutional traditions” (40-41). But Dewey wanted the scientific spirit in politics, but not scientists themselves (41).

Max Weber dismissed the idea of scientists as technocratic replacements for politicians:

the qualities that make a man an excellent scholar and academic teacher are not the qualities make him a leader … specifically in politics (43).

The Impact of Marxism

Marxism itself was intended to be a scientific account of history and progress. After the Soviet Union began to put a version of Marxism into practice, early theoreticians in the USSR explicitly bound science to society, and argued that science itself was driven by “social formations and historical considerations” (43). For these theorists, “an autonomous realm of pure science was a sham and an ideological construction” (43).

Outside of the Soviet Union, “the Left” accepted the idea that science was not neutral — but also that rational, planned societies were the apotheosis of the scientific approach (44). During the Depression, many saw politicians — and democratic capitalism itself — as standing in the way of scientific progress (44).

Post-War Science Studies

Turner argues that the debate over the role of science in society was transformed after World War II for a variety of reasons:
The response of physicists to the Bomb, the coming of the Cold War, the betrayal of atomic secrets by scientists, the Oppenheimer case, the Lysenko affair (which finally discredited the Soviet model of science), and the rise of an aggresively anti-Stalinist Left transformed the debate (47).

The new, post-war world valorized science, but generally removed politics from explicit consideration — and the result was Thomas Kuhn’s seminal work, The Structure of Scientific Revolutions.

"Cornwall School House Nº 3 (1830)" by Flickr user Don Shall. CC BY-NC-ND 2.0.

In the twentieth century, the general move in regards to Fourth Amendment jurisprudence — one prong of privacy — has been away from a focus on property, and towards a view that focuses on people instead. (See, e.g., The Fourth Amendment: from property to people.) This move gave us warrant requirements for wiretaps even when a physical trespass had not occurred, for example, because it protected people’s “reasonable expectations of privacy.” But as I noted in a previous article, an alternative approach to creating an entirely new right would be to extend property rights to cover information or personal data, rather as copyright, patents, trademarks, and other forms of intellectual property extended physical rules into the realm of the intangible.

While there are undoubtedly benefits to this, there are limitations as well. Pamela Samuelson, in “Privacy As Intellectual Property,” discusses several of them:

First, the infrastructure necessary for enabling a privacy market to flourish is not insubstantial, and would likely require government oversight anyway, especially given the disparity between individuals and data companies (1136-37).

Second is the problem Samuelson characterizes as “free alienability”: normally, once sold, the buyer can resell a product to a third party. But this is likely to be a problem with privacy, since individuals may well be comfortable selling to one company but not to another. Limiting alienability undermines a core part of a property system. (1137-38, 1145)

Third, it is unclear if a property market is really the most efficient way to allocate resources: “What is scarce is information privacy, not personal data,” but Samuelson argues that it is personal data that is being bought and sold. The goal of the market, then, unlike most others, is to limit availability, not increase it. (1138-39) One might counter by re-conceive of the market as one where privacy is what is bought and sold, but I’m not sure this fixes the market issue.

Fourth, but relatedly, the market for intellectual property exists because of a bargain: the law grants temporary monopoly rights (patents, copyrights) to encourage creation and to benefit the public as a result. Everyone benefits from the system. Without it, creators may not have sufficient incentive to invest in, for example, research and development in the face of potential free riders who might undercut them without investing themselves. In the case of privacy rights, though, there is no similar incentive: “Property rights are not needed to bring them [personal data] into being, nor to achieve widespread distribution of them.” In short, what incentives does creating property rights in personal data create? (1140-41)

"Property of the Hess Estate" by Flickr user Jason Eppink. CC BY-NC-SA 2.0.

In Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Terry Hart does an excellent job of exploring why the First Amendment has never been held to interfere with the enforcement of copyright, including pre-publication injunctive relief. A few quick highlights:

• Until the late 1960s, the idea that there exists any tension between the First Amendment’s prohibition on government restrictions of expression and copyright law’s encouragement of expression was nearly nonexistent.
• There were some who noted, at the least, a prior lack of recognition of the potential conflict, as in this Columbia Law Review note from 1913 on “Freedom of the Press and the Injunction.”

The main reason Hart identifies as to why legal thinkers did not consider there to be a conflict?

The first reason is that legal thinkers primarily conceived of copyright as a property right. Property is on the same footing as life and liberty. Freedom of speech, or freedom of the press, ends where deprivation of property begins.

Hart points out that the earliest (1839) case — Brandreth v. Lance, from New York — ruling on the constitutional grounds of free speech noted the following when denying an injunction for potential libel:

There is, perhaps, but one instance in the books, of any judge having maintained the existence of a power in the court of chancery of restraining publications on any other ground, but that of property and copyright.

(Note: there is another key ground on which judges — including the Supreme Court — have said that injunctions can be granted in regards to copyright: the fact that copyright is granted in the Constitution itself. See New York Times v. U.S., from 1971.)

Allgeyer v. Louisiana

As I discussed earlier, Allgeyer v. Lousiana, 165 U.S. 578 (1897) expressed the unanimous opinion of the Supreme Court that freedom of contract was a fundamental right protected by the due process clause of the Fourteenth Amendment. While this case itself was applied to limitations of out-of-state businesses operating in Louisiana, its valorization of the “liberty of contract” was extended to employment regulations as well (Hall 398).

Holden v. Hardy

Still, despite this valorization of contract as liberty the year before, hints emerged of limitations on contract that would emerge more fully in the twentieth century. In Holden v. Hardy, 169 U.S. 366 (1898), Justice Henry Billings Brown “accepted the idea that employer and employee do not stand on an equal bargaining footing” (Hall 399):

the proprietors of these establishments and their operatives do not stand upon an equality, and … their interests are, to a certain extent, conflicting. … In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them.

As regulations limiting children’s working hours in factories are a valid exercise of a state’s police power — which also includes enforced vaccination, quarantine, and other protections of the public’s general welfare — so too is an act that seeks to protect workers in a particularly dangerous occupation (mining).

Lochner v. New York

At the turn of the century, the “triumph of contract” was effectively constitutionalized: Lochner v. New York, 198 U.S. 45 (1905) held that the “liberty of contract” was a fundamental right protected by the Fourteenth Amendment. Lochner invalidated legislation limiting the workweek to 60 hours on the theory that

the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.

The Lochner Court construed the law as an absolute interference “with the right of contract between the employer and employees,” then declared that “the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” The Fourteenth Amendment’s Due Process Clause — originally intended to overturn Dred Scott and to prohibit so-called “Black Codes” — prohibits states from depriving any person of life, liberty, or property without due process of law. To the Lochner Court, the right to buy and sell labor through contract was a “liberty of the individual,” and was thus constitutionally protected.

The end of Lochner

Lochner was finally challenged successfully during the Depression, in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), which finally allowed for a general minimum wage in Washington State — and thus overturned the maximalist version of freedom of contract.