Sandy Levinson’s Challenge

In a recent post at Balkinization, Sandy Levinson argues that the recent mostly government-funded rescue of the trapped Chilean miners proves the need for a large welfare state. He also issues a challenge to the Volokh Conspiracy:

PBS reports that the cost of rescuing the 33 trapped Chilean miners was $10-20 million. A third apparently came from private donations, with the rest from a mix of the state-owned copper company in charge of the effort and the government of Chile itself. Every American law student is told that there is, in the United States, no “duty to rescue.” It is, of course, just such a notion of “good Samaritanism” that is the foundation of the welfare state, in which haves see their funds redistributed to have-nots lest the latter end up starving or freezing on the streets or watching their houses burn down because they can’t afford to pay the user fee to the local fire department….

I’ve done a quick check of recent entries to the Volokh Conspiracy, which I take it is the leading collection of libertarians in the legal academy, and I notice that none of them saw the rescue as worthy of comment. Might it be too threatening for, say, David Bernstein, who announced his forthcoming talk to the Federalist Society (with a comment to follow by Jack Balkin) on his new book that attempts to rehabilitate Lochner, to admit that at least sometimes there is a role for the “rescuing state,” which, almost by definition, must take from those who have in order to provide for those who don’t?

First, I very much appreciate Sandy’s calling us “the leading collection of libertarians in the legal academy.”

Second, I can’t speak for David Bernstein. But my own view is not that the mine rescue is unworthy of comment, but that I’m not a good person to comment on it. Why? Because I am not an expert on either industrial accidents generally or mining specifically. For reasons I recently explained here, I try to limit my blogging on public policy issues to areas where I have real expertise or at least follow closely. Sandy Levinson is a leading constitutional law scholar, and his work on the issues where he is an expert is almost always insightful and interesting. On this issue, however, I suspect that Sandy’s expertise isn’t much greater than mine. At the very least, such expertise isn’t evident in his post. For example, Sandy doesn’t actually cite any evidence showing that a government-led system for dealing with industrial and mining accidents is superior to private sector alternatives.

Given my own lack of expertise on industrial accidents, I’m not going to try to offer an argument to the contrary. I will say, however, that the mining accident adds little to the case for the modern welfare state even if Sandy’s interpretation of what happened there is completely correct.

As I pointed out in a recent response to one of Sandy’s co-bloggers, it is perfectly consistent to believe on the one hand that government should provide some degree of assistance to those of the poor who genuinely can’t care for themselves, while also arguing for a massive reduction in government intervention in the economy. That was the view of libertarian thinkers such as Milton Friedman and F.A. Hayek. Much government intervention benefits not the poor, but the wealthy and well-organized interest groups, who generally have vastly greater political power than the poor do. It is ironic that Sandy brings up David Bernstein’s work on Lochner in this context. A central element of David’s analysis of Lochner and other early 20th century labor regulations is that those policies in fact benefited organized interest groups at the expense of poor, immigrant, minority, and female workers. In many cases, David points out,this was actually their intended purpose, not merely an accidental side effect.

It is also somewhat strange that Sandy (in the same post) uses the issue of government aid to the poor to attack people like Paul Ryan and Eric Cantor. These politicians haven’t even come close to proposing the abolition of the welfare state. They are far less radical in that respect than I am (I too would not abolish the entire welfare state, but I would abolish a lot more than either Ryan or the GOP leadership would). Rather, Ryan’s famous “road map” proposes to scale back the welfare state primarily by introducing greater means testing. In other words, he seeks to cut benefits to the wealthy and middle class, not the poor “have-nots” who, in Sandy’s words, might “end up starving or freezing.” As Ryan himself puts it, he supports a “robust safety net” for the latter.

As I noted in my last post, there is actually a lot of historical evidence that private sector institutions often do a better job than the state in aiding the poor as well as the rich and middle class. But even if you believe, as I do, that some degree of government redistribution to the poor is needed, that doesn’t justify anything remotely resembling today’s overgrown government. Indeed, redistribution to the genuinely needy would be far easier to maintain if it weren’t for the looming fiscal crisis created in large part by enormous bailouts and entitlement programs that mostly benefit the nonpoor.