The Curse of Fairness

Justice Louis Brandeis, among others, pointed out that when we consider what is just we are thinking about what is fair.   Justice is fairness.   Fair enough.    You want someone you are arguing with to admit it when something you say is fair.   “That’s a fair point,” is a concrete step toward agreement.    Children, at a certain age, are obsessed with fairness.   They are right to be, fairness is manifestly better than unfairness.  Sadly, it’s a childish idea that is soon slapped out of young heads by the observable world around them.   The world, by and large, doesn’t really give a rat’s armpit about fairness.   By that I mean that the powerful, who have the option to enforce extremely unfair arrangements, are almost never shy about doing so.

So we have American billionaires, citing their liberty, who cry that raising their tax rate (radically cut by recent Republican presidents) by 2% is as inhuman as placing them in Auschwitz.  OK, in fairness, it was one American billionaire, probably having a very bad day, who publicly carried on that way.   The rest of America’s billionaires  shook their heads, it made them all look bad, even if it was hard for many of them to disagree with the sentiment.  

The American discussion of fairness has been shaped by the beneficiaries of an increasingly unfair arrangement.    In the name of freedom and liberty for all, some compromises must occasionally be made.  The CEO of Amazon, for example, acceded to the until recently unthinkably radical idea that American workers should be paid a minimum of $15 an hour.   Fair is fair.  Nobody who works for the richest corporation in the world should work for less than $600 a week, or almost $30,000 a year, before taxes.   So although he does not allow unionized workers, collective bargaining or other basic mechanisms of what a kid might think of as fairness,  he stepped up and paid Amazon workers the $15/hr.   He continues to make almost $9,000,000,000/hr but, then again, he is an amazing American genius, so, why are we talking about childish things like “fairness”?

Many intractable problems could be solved by investing billions to fix them, poverty being one of them.  It would require a real commitment, and the best ideas of how to do it–  a large scale multifaceted government program, job training, low cost public colleges, affordable housing and so on, but we could eradicate poverty in the wealthiest country in the world, if we were dedicated to doing it.  The same goes for slowing the catastrophic climate disruption we are already seeing.   It will take a commitment, and a lot of money, but it can be done.

America has always had unlimited funds for war (whether justifiable or not) but peace is harder to justify spending money on. A hundred million for the president (whoever he or she happens to be) to launch a massive missile attack against an airbase somewhere?   No problem at all, the blank check is already in your pocket, Mr. President, ma’am.   A hundred million to continue funding a program to make sure the elderly can afford heat in the winter?   Well… why can’t the old fucks just put on an extra sweater, a scarf and a hat?  If they weren’t morally weak or  criminally stupid they would be rich enough not to need the subsidy, right?

(You can fact check me here and  here and see how full of shit my numbers are.)

The discussion is always arranged to make certain ideas– like the vaunted Free Market– sound just and reasonable, while others– like renewable energy and a sustainable rather than extractive economic model— are the mad ideas of crazy radicals (as a $15/hr minimum wage was two or three years back).   The Free Market subsidizes many vastly wealthy corporations and industries to the tune of many billions annually.  How exactly is it free?   No matter, renewal, sustainable— just crazy talk you crazy commie bitches!

I heard this bit from Rupert Mudorch’s FOX mocked the other day by one  of our most successful late night comics.   In a discussion of raising revenues by increasing taxes on the ultra-wealthy, something apparently supported by most Americans, a Fox host fought back the idea in  a laughable but honest way.  The reason 70% of those polled by Fox favor raising taxes on the very rich is that there is a creeping ideology of “fairness” that is about to become an electoral force when these little bastards reach voting age.  

Schools have apparently been teaching children fairness for years, and it has distorted a whole generation’s values!   You can read most of the weak ass “discussion” below. [1]

The idea expressed by Louis Brandeis and others, that justice and fairness are the same thing, is deeply, intuitively true.   Eisenhower appointee Earl Warren apparently believed the same thing, and acted on it as Chief Justice of the Supreme Court from 1953 to 1969.   He steered the court to numerous decisions based on common decency and fairness.  He was not shy about what his project was– increasing fairness and justice at law, sometimes relying on the court’s equitable powers– the power to go beyond the law to fashion relief that’s fair.   He got landmark decisions on the Civil Rights of all Americans, took stands to protect workers’ rights, the rights of the poor, the weakest among us.   Warren’s court was one of the most liberal in American history.   This, naturally infuriated many. 

In an excellent, very readable Law Review article called  Justice-as-Fairness as Judicial Guiding Principle,  author Michael Anthony Lawrence writes:

At the same time, many Warren Court decisions were hugely controversial, upsetting the settled expectations of those who benefited from long-entrenched governmental biases and practices. The ubiquitous “Impeach Earl Warren” [2] billboards seen throughout the countryside during the late 1950s and the 1960s reflected the underlying efforts of laissez-faire conservatives to overturn aspects of the New Deal, which began a quarter century earlier. The intensity of the political opposition to the Court’s newfound commitment to fairness and equality was matched only by the infamous pre-Civil War Dred Scott case a full century earlier. To this day and through the decades, conservative jurists, academics, and others have bemoaned the Warren Court’s “lawlessness” and lack of principle.

Laissez-faire conservatives are generally wealthy and content with the status quo, as long as it zealously protects their particular privileges and immunities, their inalienable liberties in the pursuit of happiness.  Laissez-faire [3]  is a French term that translates to “go fuck yourself”.  “Leave it alone” is the mantra of these liberty loving conservatives, unless, of course, the thing you are leaving alone is an honest societal commitment to basic fairness.   Too much fairness is unfair to the most privileged beneficiaries of a system that favors unfettered liberty above all else.   Unfair tyranny over the few by the many!  Stinking majoritarian hoards!


[1]  SANDRA SMITH (CO-HOST): There is — what seems to be, a movement against capitalism in this country. This is a piece in Politico, just published: “Soak the rich? Americans say go for it.” In this piece — it talks about how recent polling is showing that the American public is increasingly on board with raising taxes on the rich. As evidence, we pulled up this latest Fox News poll on the issue, whether Americans support raising taxes on the wealthy, on incomes over $10 million. Those that are in favor of that, 70 percent, Charles. Over a million dollars in income, 65 percent are in favor of raising taxes.

CHARLES PAYNE (FOX HOST): The idea of fairness has been promoted in our schools for a long time. And we’re starting to see kids who grew up in this notion that fairness above all and now they are becoming voting age and they are bringing this ideology with them. In the real world, though, you have places, very progressive states like in New York where you have the governor saying, hey, 46 percent of — the 1 percent pay 46 percent of the taxes. Last year in California, the governor, you know, [former Gov. Jerry] Brown said the 1 percent pay 48 percent of the taxes. Let’s not go back to that well anymore. So there’s a practical, realistic idea about this and there’s the ideological, hey I’m going to — it’s the right thing to do. It doesn’t work. But I will say capitalism has to do a better job defending itself….


[2]  My footnote:

“Impeach Earl Warren” was embraced by Fred Koch, charter member of the John Birch Society (once the lunatic fringe of the far right) and father of the accursed octogenarian brothers Charles and David Koch, men whose life’s work has been to make the lunatic fringe of the extreme right mainstream.    How proud ruthless Fred would be of these two highly successful motherfuckers!


[3]  Google translates the French term laissez-faire into English as laissez-faire.  Nice work, boys.  (without the dash it is rendered as “let do”)

here’s a generic definition of the English term:

lais·sez-faire/ˌ    lesāˈfer/   noun
  1. a policy or attitude of letting things take their own course, without interfering.
      abstention by governments from interfering in the workings of the free market.
      “laissez-faire capitalism”
    • synonyms:  free enterprise, private enterprise, individualism, nonintervention, free-market capitalism, private ownership, market forces, deregulation


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