Let’s start with my points of agreement with Tomasi’s refreshing Free Market Fairness. (1) Political justification is broadly contractualist: just principles must be endorsable by those living under them. (2) They would endorse principles of social justice in the neighborhood of Rawls’s principles of equal basic liberties and fair opportunities, and require that socially instituted inequalities redound to the benefit of all, especially the least advantaged. (3) We should try to arrange the rules of economic life such that just outcomes are largely produced as the byproducts of fair, general, impersonal rules of property, contract, taxation, etc., which are applicable to all. (4) Principles of justice should honor people’s concern for the self-respect they attain through their agency: that they not only enjoy certain outcomes, but do so through their own activities. (5) The economy is an important domain of agency. A just regime should arrange the rules of economic life to ensure a rich set of opportunities for people to engage in market activities according to their preferences, consistent with honoring the self-authorship of others. (6) This includes the freedom to create, own, and operate private productive enterprises. Tomasi argues that 4-6 constitute important amendments to, or perhaps distinctive market democratic interpretations of, “high liberal” principles of social justice. I’ll sign on.
Now for the disagreements.
Tomasi argues that rights to economic liberty should be constitutionalized, with economic regulations subject to a high level of judicial scrutiny. Considerations of social justice may sometimes override economic freedom—but only if judges approve. I don’t think this is a sensible way to limit economic regulation. Consider the contrast between the rights to freedom of religion and freedom of movement. In political philosophy, both rights are equally fundamental. Legally, however, virtually no regulations on freedom of religion are permissible, but courts rightly defer to the other branches of government with respect to virtually all general regulations of movement on public roads. You must signal a turn or a lane change, but a law requiring you to publicize your religious conversion would be unconstitutional. You must wait for green at a stop light, but a law requiring a waiting period before you could leave or join a church would be struck down. You can pray as fast as you want, even while drunk, but don’t try driving that way.
And here is a response by Jessica Flanigan.