To Bauer, the Third World masses have repeatedly demonstrated their responsiveness to systemic economic incentives.55 He rejects "condescension toward the ordinary people" of the Third World, 56 "the classification of groups as helpless,"57 and the notion that they "do not know what is good for them, nor even what they want"58 -a view which "denies identity, character, personality, and responsibility" to them.59 To Bauer, the evidence "refutes the suggestion that individual Africans and Asians cannot or do not take a long-term view."60 He notes that proposed "sacrifices are not borne by those who so warmly advocate their imposition."61 To Bauer, "the intellectuals so highly regarded by Professor Myrdal" were seen as a special danger rather than a special source of progress, for "their attempts to iron out differences in culture, language, status, wealth and income," and to "dissolve the bonding agents of society" could only lead to an "extreme concentration of power."62 Their hostility to the market and "contempt for ordinary people" are to him "only two sides of the same coin."63 Bauer rejects "Myrdal's conception of man and society" in general and in particular "Myrdal's practice of regarding poorer people as helpless victims of society"64
Whether Myrdal or Bauer is more in favor of equality depends entirely on whether equality is conceived as equality of economic results or equality of political process. Myrdal clearly believes more in equality of economic results-and Bauer equally clearly prefers equality of social processes. In this they are very representative of historic visions, even though contending over modern issues.
Their respective conceptions of power are likewise in the tradition of the two conflicting visions. According to Myrdal, power has shaped economic results in the Third World, for not only have Western nations "exploited the resources and peoples in the huge backward areas of the world and kept them politically and economically dependent,"65 but also domestically "swarms of money lenders and middlemen" have "too many of South Asia's peasants in their grip today"66 There is "economic power" by the Chinese minority in Malaysia,67 for example. Economic planning is said to have failed when it did not lead to "a lessening of the concentration of economic power."68 Bauer, by contrast, rejects the whole concept of economic power in a competitive market:
The market order minimizes the power of individuals and groups forcibly to restrict the choices of other people. Forcible restriction of the choice of others is what coercion means. Possession of wealth does not by itself confer such power on the rich. Indeed, in modem market economies the rich, especially the very rich, usually owe their prosperity to activities which have widened the choices of their fellow men, including those of the poor. Obvious examples are the fortunes made in mass production and mass retailing.69
Note that there is not simply a disagreement between Myrdal and Bauer on an empirical issue as to the magnitude or locus of power but also, and more fundamentally, a different conception of what power consists of. As with equality, freedom, and justice, power is defined as a result characteristic in the unconstrained vision (Myrdal) and as a process characteristic in the constrained vision (Bauer). Bauer's definition of coercion or power as "restrictions of the choices of others"-a process definition-is one that Myrdal's examples do not even attempt to meet. Such results as being "economically dependent" are sufficient for Myrdal's purposes as evidence of being subjected to economic power. Implicitly, this is a definition of power advanced long ago by Max Weber, endorsed more recently by John Kenneth Galbraith, and generally characteristic of the unconstrained vision-"the possibility of imposing one's will on the behavior of other persons."7° The two definitions may seem at first to be very similar, but they are in fact quite different.
Whenever A can get B to do what A wishes, then A has "power" over B, according to the results-oriented definition of the unconstrained vision. For example, two modern theorists say: "A Controls the responses of B if A's acts cause B to respond in a definite way." Even when a "subordinate negotiates with another employer in order to induce his superior to grant him a raise," that is Control with a capital C in these authors' terminology, or power.71 It is the result which defines power. But if B is in a process in which he has at least as many options as he had before A came along, then A has not "restricted" B's choices, and so has no "power" over him, by the process definition used by Bauer and characteristic of the constrained vision. The "offer of some specific quid pro quo" by A to B would be an exercise of power according to Galbraith,72 but not according to Bauer, for A has only enlarged B's options rather than restricted them. Even if the new option offered by A is so superior to B's existing options as to make B's choice virtually a foregone conclusion, a quid pro quo is still not power by this definition. Whether in a Third World context or otherwise, arguments about the magnitude and locus of economic power are not simply disputes about empirical facts, but go back to a basic conflict of visions and a conflict of definitions derived from those different visions.
Because the ability to affect particular results in one way or another is much more widespread than the ability to shape whole social processes, power is a more pervasive feature of the unconstrained vision than of the constrained vision. In modern times, the concept of "economic power" has been predominantly associated with those who, on other grounds as well, are in the tradition of the unconstrained vision, while those with the constrained vision remain skeptical, if not dismissive, of such a concept. The salient point here is that how much power exists, in whatever context, depends upon how power is defined. More important, the appropriate policy response to power depends upon what it is substantively that is being responded to, not the word used to describe it.73
To those with the constrained vision, to deal with the problems of an economic process, in which power is at most attenuated, by increasing and concentrating political power that is very real is to reduce rather than increase human freedom. But to those with the unconstrained vision, with a different conception of power, the exercise of political power "is pale in contrast with that exercised by concentrated and organized property interests."74 They use the same word, but they are talking about two different things, overlapping just enough to be confused with one another.
The Law
In many legal cases, the most fundamental decision is who should decide-in short, the locus of discretion. The question of narrow versus expansive judicial interpretation of the Constitution is ultimately a question as to whether the courts should restrict themselves, as much as possible, to defining boundaries within which others may exercise relatively uninhibited choices, or whether instead the courts should reserve to themselves broad powers to review those choices with respect to their arbitrariness or reasonableness, bias or good faith, duress or freedom, or equality or inequality of bargaining power between the parties concerned. The locus of discretion under the law is one of the many questions seen in radically different terms by those with the constrained vision and those with the unconstrained vision.
To those with the constrained vision, the locus of discretion should be, as much as possible, with those individuals and organizations directly concerned and systemically responsible for the consequences, in the sense of personally gaining or losing. Once the law has drawn the boundaries of their discretion, courts should be very reluctant to second-guess their choices. Even if the decisions made were clearly for the purposes of avoiding taxes, for example, the real questionaccording to Oliver Wendell Holmes- was whether they were within the legal boundaries of individual discretion, for "the very meaning of a line in the law is that you intentionally may go as close to it as you can if you do not pass it."75
This principle was applied to many kinds of cases. Within limits, someone who makes a will may be "a despot" with his property, according to Holmes.76 Within the bounds of their discretion, state legislatures may pass laws "so foolish as to kill a goose that lays golden eggs," Holmes declared. "Intelligent selfinterest," he noted, "is not a constitutional duty."77 He said, "it by no means is true that every law is void which may seem to the judges who pass upon it as e
xcessive."78 Nor was Holmes prepared to condemn legally someone who killed an assailant, even though his action "may seem to have been unnecessary when considered in cold blood" afterward. "Detached reflection cannot be demanded in the presence of an uplifted knife," he said.79
In all these very disparate cases, the underlying premise was that, once the law had drawn the boundaries of discretion, courts should avoid secondguessing the actual exercise of that discretion. Given the assumptions of the constrained vision, the principle could hardly be otherwise. It is the legal equivalent of laissez-faire in economics, based essentially on the same vision of man and society.
To those with the unconstrained vision, such holding back by courts is simply allowing injustice to flourish unnecessarily. Laurence Tribe and Ronald Dworkin are among the most prominent contemporary advocates of this view. Ronald Dworkin sees a need for courts to go beyond demarcation of the boundaries within which other branches of government exercise their own discretion. According to Dworkin, there must be a "fusion of constitutional law and moral theory"80- again, based on values found in the Constitution, rather than only on explicit rules of procedure prescribed by that document. According to Ronald Dworkin, courts must supply "fresh moral insight" when judging "the acts of Congress, the states, and the President."81 If someone has "a moral right to an equal education," then "it is wrong for the state not to provide that education," and courts should rule accordingly.82 This view is skeptical of "the supposed natural right to the use of property"83 and dismisses "the liberty of an employer to hire workers on such terms as he wishes" as not entitled to constitutional protection from statutory law.84
To those with the unconstrained vision, it is not simply a question of the locus of discretion, but also of the morality, reasonableness, and equality or inequality with which that discretion was exercised. If third parties are able to make such judgments, as the unconstrained vision assumes, those with the power to change these decisions have little justification for their failure to do so.
Laurence Tribe likewise rejects the "substancedenying" idea of courts limiting themselves to drawing boundaries defining acceptable procedures, without judging the substance of what those procedures produce within those boundaries.85 Judges should "question the trade-offs arrived at by the political branches" of government rather than be satisfied if "due process" is observed within the boundaries of legislative and executive discretion.86 It is not enough that explicit constitutional rules are followed; implicit constitutional "values" are to be discerned and applied by judges to the substance of decisions made by others. While discerning implicit values is inherently subjective, legal process cannot be "emptied of substance or subjectivity," according to Tribe.87
The fact that particular rulings have particular effects means, for Tribe, that implicit choices have been made as to the substance. For example, protection of property rights means, in effect, "immunizing from majoritarian rearrangement extant distributions of wealth and economic power."88 Thus, the U.S. Supreme Court, by overruling state laws infringing property rights "reinforced the protection of existing patterns of capital distribution."89 There is a "deep bias against economic redistribution" in constitutional requirements for "just compensation" by government when private property is taken under eminent domain.90 The law's "built-in bias against redistribution of wealth" is seen as a benefit to "entrenched wealth"91-that is, it is seen in terms of its individual results rather than in terms of the social processes facilitated by a property-rights system of economic decision-making.
By contrast, legal theorists who support property rights defend them on the entirely different ground that they "have an effect on the efficiency with which the economic system operates."92 It is not the retrospectively observed results for particular individuals or classes but rather the prospective incentives created throughout society-the effect of property rights on "the penaltyreward system'93- that is central in the opposing vision. In short, Tribe does not simply reach a different conclusion, but argues on an entirely different ground, from those with the constrained vision.
According to Tribe, "seemingly neutral principles" of the law betray a "tilt decidedly in the direction of existing concentrations of wealth and influence."94 What is needed is "a more substantive conception of equality," for "equality is essential to the Constitution's protection of free speech and association."95 As in other versions of the unconstrained vision in other fields, so in the law, it is not the process but the result which defines equality. According to Tribe, "free speech has not been available at all."96 Because "inexpensive methods of communication such as leafletting, picketing, and soapbox orating have given way to expensive media such as electronic broadcasting, newspaper advertising, and direct mail,"97 freedom of speech as a process does not mean freedom of speech as a result. While there is "equality of voting" there is not "equality of voice."98
Economic power and institutional participation are central to this reasoning. The importance of both is denied by those with the constrained vision, who see the "power" of a corporation as a "delusion," and "participation" in collective decision-making as often inefficient.99 Once again, the points of disagreement are not purely empirical because "power" in the constrained vision means an ability to reduce someone else's options. It is the existence of power in this sense that is denied:
What then is the content of the presumed power to manage and assign workers to various tasks? Exactly the same as one little consumer's power to manage and assign his grocer to various tasks. The single consumer can assign his grocer to the task of obtaining whatever the customer can induce the grocer to provide at a price acceptable to both parties. That is precisely all that an employer can do to an employee.100
Because the employer cannot reduce the employee's pre-existing set of options, he does not have "power" over him in this conception. But to those with the unconstrained vision, power or force is not defined in these process terms. In the unconstrained vision, where results rather than processes are central, if A's chosen behavior changes B's behavior, then A has forced B to behave in a particular way. For example, according to Tribe, if the government refuses to pay for abortions for indigent women, then it causes "coerced childbirth," acting in effect to "conscript women (at least poor women) as involuntary incubators," thereby "denying women power over both their bodies and their futures."101 This is consistent with the general logic of defining power in terms of the ability to change someone else's behavior, though inconsistent with the definition of power as the reduction of pre-existing options. In the latter sense, the government would be exercising power over pregnant women if it forbade abortions but not when it simply declined to pay for them.
The clash of the two concepts of power is especially sharp in legal issues in which governmental power is put at the disposal of private parties to enforce contracts or property rights. Where the terms of contracts have been privately and voluntarily agreed to, the locus of discretion is in the private sector- both initially and when a breach of contract presents to the aggrieved party the option of resorting to the enforcement power of the state. Similarly, when property rights are trespassed, the locus of discretion is with the individual property-owner, who may choose to ignore the trespass or to invoke state power to eject and/or prosecute the trespasser.
In a landmark case involving "state action" at the behest of an aggrieved private party, a woman handing out leaflets in a privately owned residential development, in defiance of the development's rules against it, was arrested for trespass. In the constrained vision and the judicially restrained view of the law based upon it, the central question for the court to decide was whether the "state action" requested was within the boundaries of the owners' property rights. But in the more judicially activist view of the opposing vision, the court should inquire into whether the "state action" requested was consonant with the "values" emanating from the Constitution, not simply whether it was consonant with the explicit rules written there. Among these "constitutional val
ues" would be freedom of speech under the First Amendment, which explicitly forbade government- but not private individualsfrom restricting communications.
In this particular case- Marsh v. Alabama (1946)-the U.S. Supreme Court overruled the trespass conviction on grounds of freedom of speech. In subsequent cases involving similar trespass in shopping centers, the Supreme Court decision sometimes went one way and sometimes the opposite way.102 What is relevant here are the rationales for each position and how they relate to the underlying conceptions of power and the locus of discretion in applying it. Where the state's enforcement of trespass laws is procedurally correct as an application of explicit property rights, those with the unconstrained vision have nevertheless argued that the courts should refuse to countenance "state action" when the net result will be to deny someone the exercise of free speech on that property or to exclude someone from that property because the owner does not like people of that race. Like so many issues between those with constrained and unconstrained visions, "state action" cases turn on whether it is process or result that is paramount.
While conceding that "the Constitution does not directly concern itself with private actors," Laurence Tribe nevertheless declares that "to put 'private' actors in a position to inflict injury" by resort to state power under trespass laws makes the state guilty of the substantive result.103 Thus "state action" can be "a subterfuge for substantive choices."104 But to those whose constrained vision limits what man should attempt to making processes operate according to agreed principles, the only question is whether the legal boundaries of property rights were rightly drawn, not what substantive result occurred within the bounds of the discretion permitted the owner. There are echoes of Oliver Wendell Holmes in a latter-day Supreme Court Justice's dissenting opinion that the right "to use and dispose of his property as he sees fit" means that within those boundaries the owner has the legal right to be "irrational, arbitrary, capricious, even unjust."105