How much say should the political process have over what we can freely buy and sell?

Trevor Burrus
Research Fellow, Constitutional Studies

Trevor Burrus is a research fellow at the Cato Institute’s Center for Constitutional Studies. His research interests include constitutional law, civil and criminal law, legal and political philosophy, and legal history. His work has appeared in the Vermont Law Review, the Syracuse Law Review, and the Jurist, as well as the Washington Times, Huffington Post, and the Daily Caller. He holds a BA in Philosophy from the University of Colorado at Boulder and a JD from the University of Denver Sturm College of Law.

A Review of Michael J. Sandel's What Money Can't Buy: The Moral Limits of Markets

In many dystopic visions of the future, corporate ads are everywhere. In “Minority Report,” holographic ads accost Tom Cruise with personal suggestions. In films like Arnold Schwarzenegger’s “Running Man,” corporations sponsor death‐​match game shows, sometimes replete with little absurdities like the “Wells Fargo Death Blow.”

Harvard professor and communitarian philosopher Michael J. Sandel seemingly believes we’re already living in that dystopic future. Corporations name our stadiums, Rolaids brings in relief pitchers (“that spells relief!”), and unscrupulous people bet on other’s lives through life insurance exchanges and death pools. What Money Can’t Buy: The Moral Limits of Markets is Professor Sandel’s jeremiad against this increasing tide of commodification. He asks for a national conversation on “the great missing debate in contemporary politics,” namely the “role and reach of markets.”

Sandel objects to a long list of market exchanges. To name but a few: paying students to read books, carbon credits, tolls to drive in the carpool lane while driving solo, payments by companies to employees to get healthy (so‐​called “health bribes”), paying line‐​standers, athletes selling autographs, selling stadium naming rights, and skyboxes. He objects for two reasons: 1) market choices can reflect underlying economic inequality; 2) markets corrupt goods and degrade social norms.

Both of these objections deserve the careful attention of political philosophers. Even libertarians don’t believe that everything should be bought and sold, and sometimes allowing market transactions will crowd out other norms. Sandel discusses one example extensively: after a day‐​care center became fed‐​up with parents arriving late to pick up their kids, thus making teachers stay late, they decided to charge parents a late fee. The result? More parents showed up late because they felt they were now paying for a service.[^footnote] An interesting social phenomenon, certainly, and worthy of consideration.

But Sandel hardly supplies any deep thoughts on these questions. Instead, what he mostly offers are his unsupported feelings about when a good is corrupted and when underlying economic inequality is a problem. Ultimately, like Judge Robert H. Bork’s Slouching Towards Gomorrah: Modern Liberalism and America’s Decline or Rick Santorum’s It Takes a Family: Conservatism and the Common Good, What Money Can’t Buy is largely a list of things that Sandel doesn’t like. For a book by a respected political philosopher, it is startlingly short of philosophical insight.

The occasional valuable observation is overshadowed by complaining and moralizing. For example, “moneyball”–the term given to Oakland Athletics’ manager Billy Beane’s strategy of focusing on recruiting undervalued players who contribute to winning through unappreciated skills such as drawing walks–leaves Sandel cold. Moneyball brings the cold values of economics to baseball and makes it worse because “it’s hard to stand up and cheer for the triumph of quantitative methods and more efficient pricing mechanisms.” Instead, Sandel would rather see more free‐​swinging for the fences. Similarly, skyboxes separate fans into classes, thus undermining the “civic teaching” of sports–“that we are all in this together, that for a few hours at least, we share a sense of place and civic pride.” During one extended passage, Sandel criticizes Inuits who sell their exclusive right to hunt walrus to big‐​game hunters. “The appeal of such a hunt is difficult to fathom,” he writes, because walruses are so easy to kill that it is “less a sport than a type of lethal tourism.” Therefore, “this bizarre market caters to a perverse desire that should carry no weight in any calculus of social utility.”

But Sandel never explains why skyboxes magnify inequality in a worse way than Upper West Side apartments. He never explains why Inuits should be allowed to kill walruses but not big‐​game hunters. He never acknowledges that there are those who think “moneyball” results in a more interesting game. Moreover, he never seriously addresses how some markets, such as granting property rights in endangered species (including the right to hunt), benefit those endangered species. Perhaps most surprisingly, Sandel never discusses black markets and whether bringing them into the open may be preferable to their effects–e.g. crime and dangerous merchandise. No, Sandel would rather address the problems that come with black markets by earnestly imploring people to stop buying things he doesn’t like.

Rick Santorum and Michael Sandel should go fishing some time. If they put preconceptions aside, they will quickly realize they have a lot in common. They both feel the “national character” is eroding and that “we” need to have a serious conversation about where our culture is going. They can even trade knowing nods over their shared conviction that, while there’s nothing wrong with certain voluntary relationships (same‐​sex couples and corporations), why do they have to do it in public?

Clearly, the attitudes of a new “moral majority” infect the left as much as the right. To see how, pick up Sandel’s book and turn to a random page. Page 59: “Health bribes trick us into doing something we should be doing anyhow. They induce us to do the right thing for the wrong reasons.” Page 89: “When market reasoning is applied to sex, procreation, child rearing, education, health, criminal punishment, immigration policy, and environmental protection, it’s less plausible to assume that everyone’s preferences are equally worthwhile. In morally charged arenas such as these, some ways of valuing goods may be higher, more appropriate than others.” Page 33: “Something is lost when free public theater is turned into a market commodity, something beyond the disappointment experienced by those who are priced out of attending.” Page 47: “Before we can decide whether market relations are appropriate to such domains, we have to figure out what norms should govern our sexual and procreative lives.”

Thankfully, we already have a way to “figure out what norms should govern our sexual and procreative lives”: individual rights. The great insight of Enlightenment political thinkers was that governments should not have jurisdiction over certain personal choices. Individual and property rights delineate “zones of autonomy” that remove some questions from the public sphere. In a sense, classical liberal philosophers conceptually drew a bubble around our bodies and our property and argued that penetrating that bubble with outside commands is only justified in limited circumstances.

Those who argue against this view have always pointed to how individual choices have effects that leak outside the bubble. Libertine and indulgent choices, for example, can erode the moral fabric of society, thus giving governments the right to regulate our personal lives. The misuse of private property, such as selling ad‐​space on your forehead (something Sandel criticizes) can also have negative ramifications outside the “zone of autonomy” by making others believe that the human body is just a commodity to be sold. The world is too interconnected, the argument goes, to give individual rights a moral trump card.

Conservative and communitarian arguments are thus equivalent in form. For both philosophies, “we” are supposed to be engaging in a collective conversation about what values will run “our” lives. Neither philosophy argues that such personal choices are off‐​limits on principle; each only offers arguments based on situational convenience and personal taste. Thus, by collaborating in this type of argument, conservatives and communitarians clear the way for increasing government’s encroachment on our personal space. When politicians battle over our foreheads and bedrooms our control over those personal zones is only as good–only as tenuous–as a political victory. Come the next election, a Sandel may turn into a Santorum, and you may lose the control you once had. Ultimately, the world is too interconnected to not give individual rights a moral trump card.

Sandel, like Santorum, like Bork, like all of us, wishes that people were better–better at staying healthy, better at reading books, better at taking care of the environment–or at least good enough to not need cash payments to make us “do the right thing for the wrong reason.” Yet I doubt that Professor Sandel teaches at Harvard for free. By taking a paycheck, is he doing the right thing for the wrong reason?

I don’t mean to demean Professor Sandel with a base tu quoque argument. I believe Professor Sandel should charge for his services just as I believe Mickey Mantle was justified in charging for his autograph. I bring up the example, however, to challenge whether there is a difference between professors’ salaries and Mickey Mantle charging for autographs–a difference, that is, not rooted in Sandel’s fond memories of the halcyon days when baseball players were the “object of fervent pursuit by young fans clamoring for autographs.” The onus is on Professor Sandel to differentiate between the two, and in What Money Can’t Buy, he fails to meet this challenge.