Is it "Life, Liberty, & Democracy", or Is It "Life, Liberty, & Property"?
Democracy’s failure modes in the age of the Shadow Docket. Trump gives new life and force to the fears of Friedrich von Hayek. Spite-dictated tariffs and funding whims now discipline America’s barons. That silence you hear? It’s power learning fear. We used to litigate before we confiscated; now we confiscate, then maybe litigate. Try unscrambling an egg after ten months of executive tantrum. Liberalism prizes dignity and citizenship, but without secure property, freedom collapses fast. Hayek saw the sequence; today’s Shadow Docket proves it…
Liberalism’s hierarchy—human dignity, self-governance, then prosperity—works only if prosperity and property are secure enough to sustain speech and safety. Hayek’s uncomfortable worries are now empirical: with SNAP suspended and tariffs weaponized, freedom from want, fear, and even speech depends on market stability. The Shadow Docket has short-circuited process, letting executive whims disrupt organizations before courts adjudicate laws and equities. Democracy’s failure modes—majoritarian cruelty, minority vulnerability, personalized spite—are live. When property becomes contingent on presidential favor, America’s barons learn to be quiet. The question isn’t socialism versus markets; it’s whether any rule-of-lawframework survives executive confiscation by Shadow Docket.
Mike Brock wants a “classical liberalism” that centers democratic self-governance and treats economics as instrumental. But since January 2025, short-run judicial indulgence via the Shadow Docket has turned tariffs and appropriations into levers of personal dominance by whim. For-profit corporations, non-profit universities, and many others now face existential risk if they cross the executive’s mood, even if they have solid contractual rights to the money flows they had relied on. And so the barons of American society have discovered silence. The old rule-of-law sequence—authorize, regulate, enjoin, adjudicate—has become reverse-engineered into “act now, litigate later.” If the court reverses months on, the egg is already scrambled.
Thus we need to register, once again, Hayek’s reply to civic-first liberalism is sharp: without solid property and predictable markets, freedom from fear and want dissolves, and speech will follow. Yes, property-first liberalism requires an equitable distribution of property to avoid falling into different failures modes. But is quite clear right now what the most concerning failure mode is.
What should “liberalism” bw? Mike Brock has a view:
Mike Brock: The Two Materialisms: Why I’m a Liberal <https://www.notesfromthecircus.com/p/the-two-materialisms-why-im-a-liberal>: ‘Marxist historical materialism treats the economic base as determining the political and cultural superstructure. Change material relations of production, and consciousness follows. Liberation comes through economic transformation…. Liberalism during the Cold War…became a philosophy that treats economic prosperity as the ultimate good and a political framework as legitimate only insofar as it serves markets. [But] classical liberalism… was never materialist. It insisted spiritual values are primary and economic arrangements are instrumental means serving them. This is what distinguishes me from both socialists and neoliberals….
In] the philosophy underlying neoliberalism… economic growth and market freedom ultimate values… [and] onsumer choice becomes a primary form of freedom. Markets get privileged normative status—what emerges from market process is treated as having special legitimacy…. This isn’t crude “money is everything”—it’s more sophisticated than that. Instead, the argument goes: markets produce prosperity, prosperity enables flourishing….
Classical liberalism—Madison, Jefferson, the Progressive Era reformers, FDR—was never materialist…. Democratic self-governance [wa]s primary. Economic arrangements are instrumental means that should be debated and decided within that framework. The classical liberal hierarchy: 1. Human dignity and democratic citizenship (ultimate values). 2. Political framework enabling self-governance (necessary means). 3. Economic prosperity and property rights (instrumental to the first two)…. Get the framework right—constitutional constraints, democratic accountability, pluralism, rule of law—and people can deliberate about economic arrangements. Get it wrong and no economic system produces genuine liberty…. Theodore Roosevelt’s trust-busting was about political power, not economic efficiency…. Herbert Croly’s The Promise of American Life articulated this[:]… Democratic citizenship was the ultimate good; economic arrangements should be reformed to serve it. This wasn’t socialism (Croly explicitly rejected it) but the recovery of classical liberal concern with preventing power concentration from destroying self-governance…
Some arrangements still threaten the framework…. Concentration of wealth sufficient to capture democratic process (whether private capital or party bureaucracy). Concentration of state power sufficient to prevent democratic accountability. Economic systems requiring authoritarian enforcement to maintain. Treating economic relations as having normative force beyond democratic deliberation. These threaten the framework whether they emerge from markets or planning, private or public ownership. Both liberals and democratic socialists should oppose them—which is why we can be allies in framework defense even while disagreeing about optimal content…. The framework is non-negotiable. The content within it is subject to democratic debate and experimentation….
Franklin Roosevelt, speaking on Flag Day 1942… articulated what was ultimately at stake—not economic systems but human freedom itself: “The four freedoms of common humanity are as much elements of man’s needs as air and sunlight, bread and salt…”… Roosevelt… made… primary—freedom of speech and religion, freedom from want and fear. Material security (freedom from want) is essential, but it’s essential as the condition for freedom, not as a substitute for it. Economic arrangements should serve human freedom, not determine whether freedom is possible…
What do I think? I think Friedrich von Hayek would have a good reply: Without a market economy with private property dominant, you cannot have freedom from fear, and soon will not have freedom of speech, and—as we see now with the suspension of SNAP—freedom from want requires prosperity, property rights, and equitable property distribution even with formal rights to life and liberty, and to democracy. Just look around you! Well-distributed property and prosperity is not secondary, but primary to human dignity meaning anything. And democracy has failure modes that keep it from being a sufficient guarantee, as all minorities know in their bones, and as majorities occasionally find out, when they discover that their elected leader is Plato’s Werewolf.
Look at Donald Trump: the corrupt Republican Supreme Court and the supine corrupt Republican House and Senate caucuses have, so far, given him the power to take the functional property of our large organizations and those who rely on them at whim, and out of spite. Laws that create money flows to organizations—good laws—are executed at his whim, and the organizations know that if they anger him they are in crisis. The globalized value-chain economy has created a world in which tariffs can destroy the profitability of almost all large- and medium-sized corporations, and corporations know that if Trump reacts to any of their words or deeds with spite, they too are in crisis.
And as a result it turns out that Donald Trump has astonishing power to enforce acquiescence and silence upon the barons of American society.