For nearly three decades, conservative orthodoxy has summed up its central objective in the mantra “starve the beast.” Although Grover Norquist may have been exaggerating slightly when he said he hoped to make government so small he could “drown it in the bathtub,” his sentiment certainly captures the myopic obsession of the GOP during the “Contract with America” and “Tea Party” eras. Another favorite line of modern conservatives, repeated with solemn gravity and finger-wagging, is Lord Acton’s mantra, “All power corrupts, and absolute power corrupts absolutely.”
Armed with this profound summation of political philosophy, conservatives marched off to Washington with one objective: reduce the concentration of power in the federal government, confident that by this means, power would be weakened, corruption reduced, freedom expanded, and civil society would flourish. What this one-sided political philosophy failed to grasp, however, is that power is not so much created or destroyed, but concentrated or dispersed—and that it does not like to stay dispersed. If one power center is starved of resources, power will, without fail, reconcentrate itself elsewhere, drawn by dynamic personalities, bold problem-solving, and above all, wealth. The question for political philosophers and statesmen, then, is not whether there will be concentrated power, but where power will be concentrated, and to whom it will be responsible.
Concentrations of power will always fail to be optimally responsible—they will resist democratic accountability and popular pressure, they will protect their own and advance unworthy flatterers, and they will mistake their own goods for public goods. All of this is true; and to this extent, Actonian conservatism is right to complain. But in a world of imperfect institutions, we do not have the luxury of holding out for a perfectly accountable concentration of power. Indeed, we had better beware that in starving the beast of insufficiently accountable federal government, we do not feed its scraps to new beasts equally ravenous and far less accountable.
Arguably, this is precisely what post-Reaganite conservatism has done. In April of this year, following the farcical dog-pile of big business on the state of Georgia for its supposed reinstatement of “Jim Crow” through voter ID laws, Mitch McConnell railed that corporate America was beginning to behave like “a woke parallel government.”1 McConnell could be forgiven his frustration, for this was hardly hyperbole. During the previous three months, Twitter had permanently suspended the account of a sitting president, as had Facebook. Both companies had begun aggressively deleting users and content that they deemed guilty of misinformation or offensive speech, using opaque and seemingly arbitrary internal protocols and review boards. In response to the growing outcry, Facebook submitted its actions to the review not of any government agency, but to its own internal “supreme court,” the Facebook Oversight Board.
That was at least better than Amazon, which began using its growing monopoly over book distribution (at least 50 percent of all books and 83 percent of e-books at last count2) to reinstate censorship on a scale not seen since Bourbon France. Only now, it is not heresies from the Catholic faith or attacks on the sacred sovereign that are too dangerous for public consumption, but heresies from the woke gospel and attacks on the sacred sovereignty of the individual. Before long, no less an icon than Dr. Seuss had joined the blacklist.
The problem with these decisions, it should be stressed, is not the practice of censorship per se. Although Western democracies today give very wide scope to freedom of speech, even public authorities retain the right in certain circumstances to restrict or prosecute speech that imminently threatens public order and safety. And privately-owned content platforms and book distributors can surely, in principle, make decisions about what content to host or sell. The problem with today’s Big Tech censors lies precisely in the adjective. The entities in question increasingly function not as sellers, but sovereigns. They are clothed with much of the power and pomp of governments, but without any of the legal responsibility and public accountability. As Francis Fukuyama wrote recently on American Purpose, “Sovereignty means that there’s no one with higher authority to control you, an attribute that is usually reserved for states. Facebook is now so large and powerful that it’s hard to say the government of the United States can control it. Like a state, it has started to accumulate the attributes of sovereignty.”3
How has Facebook (or Amazon, or Google, or Apple) done so? In the same way that the “robber barons” of the later nineteenth century achieved quasi-sovereignty: by exploiting a vacuum of legal authority to consolidate positions of economic power that rival those of state actors. It is worth pausing for a moment to reflect on the sheer scale of the Big Tech behemoths that we have allowed to grow up right under our noses—and for whom short-sighted Covid-19 policy responses acted as fast-acting steroids, as the profits of a rapidly digitizing economy fell straight into their laps.
Consider that by early 2021, the five biggest giants of Big Tech—Apple, Google, Amazon, Facebook, and Microsoft—had a combined market capitalization of $7.7 trillion, well in excess of the U.S. federal budget for 2020.4 To be sure, market capitalizations can prove ephemeral, but while they last, they can confer enormous status and political clout upon the executives who preside over such behemoths. And the monstrous market capitalizations of the tech giants are matched by eye-popping cash flows. During 2020, the five companies just listed raked in a combined $1.072 trillion in revenue, more than half the revenues of all fifty state governments combined. Both Apple and Amazon, with $274.5 billion and $386 billion, respectively, even managed to comfortably outstrip the revenues of notoriously big-government California.5
These revenues correspond to the monopolistic positions that such companies have established in various sectors. Google has held around 90 percent of the internet search market for years now, and also dominates the global mobile operating system market. Facebook’s main competitor is Instagram, which it conveniently owns. Amazon demolished the brick-and-mortar book industry years ago and now accounts for 40 percent of everything sold on the internet in the United States.6
Although monopolistic companies can exercise great control over their consumers, they have even more power over their workers. For years, the tech giants lagged well behind brick-and‑mortar industries in the size of their workforces, but even that is now changing as they broaden their control over important sectors of the American economy. By the end of 2020, Amazon directly employed nearly 1.3 million people—two-thirds as many as the entire federal government.
If the titans of Big Tech are increasingly functioning as a “parallel government,” it is because they increasingly operate on the scale of state entities; last year, Amazon brought in nearly as much revenue as the government of South Korea. If they are functioning as a “woke parallel government,” that should hardly surprise. After all, the newest interest groups on the political scene are those most likely to attach themselves to the newest effective centers of power in a society. Individuals and interest groups seek out within a society those who can most effectively offer them protection and advance their interests. Power follows wealth, and clients follow power.
In order to understand the logic of this new feudalism, and to recover a more well-rounded theory of political and economic power, conservatives would do well to learn from history. Many have begun to draw attention to the aforementioned era of the “robber barons” of the nineteenth century, who similarly outstripped the power of the states and rivaled the federal government during their heyday. First, however, we must look even further back—to the age of genuine feudalism and literal barons. Here, in fifteenth-century England, we find perhaps the earliest theorist of the Anglo-American conservative tradition, Sir John Fortescue, grappling profoundly with the problem of how to both consolidate and limit the exercise of power. His observations, foreign though they may seem from the age of Facebook, offer an enduring blueprint for retrieving a balanced political vision that can move beyond the stale nostrums of Actonian suspicion and equip us to resist the encroachments of the aspiring sovereigns of our new feudalism.
Power Shifts in the Wars of the Roses
For the purposes of this discussion, I will define “feudalism” as a system in which political power is vested not in publicly recognized representatives of the whole, but in large property-holders exercising effective control over territories or sectors of the polity. This was the dominant form of political order in much of medieval Europe. In England, however, from the reign of Edward I (1272–99) until Henry V (1414–22), feudalism had been largely superseded by Europe’s first effective national state. Although even the most powerful kings still relied heavily on the fiscal resources, soldiers, and police powers of the barons, Plantagenet and early Lancastrian England witnessed both a theoretical and practical consolidation of executive, legislative, and judicial authority in the institution of the Crown-in-Parliament and the King’s common law courts. But state-building is not a one-way street. Inept leadership or fiscal irresponsibility at the center can result in the rapid flow of power back to the peripheries, with devastating effects on political stability.
So it was in fifteenth-century England, which nearly went to pieces during thirty years of civil war known as the Wars of the Roses. The ostensible origin of this conflict was a dynastic dispute: in 1399, Henry Bolingbroke, Duke of Lancaster, had deposed his tyrannical and childless uncle King Richard II, bypassing the prior succession claim of Edmund Mortimer, Earl of March. Six decades later, Edmund’s grandson Richard, Duke of York, would hoist the banner of the “White Rose” of York to stake his claim to the crown then worn by Bolingbroke’s grandson, Henry VI. The real cause of the war, however, was not dynastic. After all, the dukes of York had loyally served the House of Lancaster during the preceding six decades, including in the glorious Agincourt campaign of Henry V. The real problem was the collapsing power and credibility of the Lancastrian monarchy.
Sir John Fortescue, who served as chief justice of the King’s Bench in the 1440s and 1450s, and then as chancellor-in-exile to the deposed King Henry VI, had a front-row seat for the descent of England into a new feudalism. This collapse was in part the result of the long minority of Henry VI—he had ascended the throne, after all, at the age of nine months. Worse still, he never really seemed to grow up. His official minority ended in 1437 but he remained shy, childish, and impressionable throughout his adult life, and the sinews of government steadily atrophied despite the efforts of faithful public servants like Chief Justice Fortescue and many others. When Henry’s incompetence turned to incapacity following a mysterious psychological breakdown in 1453, many in the realm began to wonder whether the House of Lancaster had run its course, and if the House of York should take its turn at the helm of the state. Well-intentioned barons, torn between rival claims to legitimacy and the urgent need for effective governance, mixed with ambitious nobles, like the Earl of Warwick, who eagerly exploited the power vacuum for their own ends.
As Fortescue would keenly observe in his 1470 treatise The Governance of England, however, even this was hardly a full explanation of the crisis. Henry’s personal incapacity was lamentable, but the Crown still had perfectly adequate agents to carry on the business of government—men like Fortescue himself, for instance. The more fundamental problem was fiscal. England was locked in an expensive war with France, and Henry VI had just the qualities to make a bad situation worse. His greatest personal virtue was a serious political vice—a heedless generosity that frittered away the financial base of the Crown (then dependent largely on income from land) and transferred tremendous wealth to the barons in return for services. Since wealth was usually interchangeable with power, the king who failed to protect the dominant position of the Crown’s wealth might soon find that he no longer had a crown. This was the disastrous lesson of the reign of Henry VI. Not only had he impoverished the royal treasury, but in the process, he had enriched already over-powerful noblemen in the realm. Whereas Henry V had brilliantly consolidated the resources, energies, and identities of the nation into a single center of power, his son dispersed them back into the periphery, into the regional power centers controlled by great magnates like the Duke of Somerset and the Duke of York. By the 1450s, power was draining rapidly from Westminster, and both commoners seeking justice and gentry seeking advancement were increasingly likely to seek it from the hands of one of the great barons rather than from the hands of the king. The violent politics of feudalism, which had been steadily rolled back by the energetic Plantagenet monarchs since the twelfth century, staged a rapid comeback.
The new state of affairs was epitomized by the career of Richard Neville, sixteenth Earl of Warwick, popularly known as “Warwick the King-maker.” By 1456 he had accumulated an enviable list of titles, immense landed estates, and the politically crucial appointment of constable of Calais, with England’s largest standing army at his disposal. His support of the Duke of York in the years that followed was decisive in propelling the Yorkist Edward IV to the throne in 1461, a success that still further increased his own power. By 1462 he had added the earldom of Salisbury and the duchy of Lancaster to his portfolio and was the richest man in England besides the king. His family members crowded into key positions and he came to dominate English diplomatic relations on the continent, so much so that the French governor of Abbeville, writing to King Louis XI, joked, “The English have two rulers, M. de Warwick and another whose name I have forgotten.” When Edward IV made the mistake of snubbing Warwick, the King-maker decided to throw his lot in with the Lancastrian exiles, and succeeded in briefly restoring Henry VI to the throne before dying on the battlefield of Barnet in 1471.
“Over-Mighty Subjects”: Fortescue’s Diagnosis
Although Fortescue had until this point faithfully served the Lancastrian dynasty even in exile, after Barnet he reconciled himself to their effective extinction and offered his services to Edward IV. The Governance of England, written for this purpose, advised Edward on how to prevent another such “kingmaker” from emerging, and how to reestablish a genuinely national center of power. In the crucial ninth chapter of the treatise, Fortescue seeks to show “the perils that may come to the king by over-mighty subjects.” “For certainly,” writes Fortescue, “there may no greater peril grow to a prince, than to have a subject of equal power to himself.”7 For all his own respect for law, precedent, and loyalty, Fortescue was a realist, who understood that loyalty cannot be taken for granted, and that, if not carefully managed, power can ebb and flow quickly. No subject wants to live under the ignominious reign of an impotent prince. If someone else in the realm seems more able to administer justice, more able to reward his followers, and more able to provide security than the king, he may soon find the people clamoring for him to occupy the throne: “For the rest of the subjects of such a prince, seeing that if so mighty a subject might obtain the estate of their prince, they should then be under a prince twice as mighty as was their old prince—which increase any subject desires . . . [they] will therefore be very glad to help such a subject in his rebellion.”8
This was precisely what England had witnessed in the 1450s and 1460s. The process had four main phases, which we shall see repeated in later feudal relapses. First, the monarchy, lacking either political will or power, overgenerously showered wealth on barons willing to offer them “loyal” service—like Warwick. Remarkably, both Henry VI and Edward IV made this same mistake with the faithless earl. Second, these barons then used their economic power to attract immense followings of clients dependent on them for employment. Adam Smith, three centuries later in his Wealth of Nations, was to report with astonishment that Warwick was said to have fed thirty thousand men at his tables each day.9 Third, having established effective fiscal independence and a dependent client base, the barons increasingly began to exercise sovereign powers within their own domain—they could defy the law with impunity and dispense their own rough justice, undermining the central administration of the common law built up over the previous three centuries. Indeed, the monarchy, now fiscally weakened, relied upon these semiautonomous lords to carry out security functions it was no longer able to fulfill. Fourth and finally, these quasi-sovereigns dared to play the role of kingmakers, bestowing titular sovereignty on whoever best advanced their own interests. The only way to prevent such an anarchic outcome, Fortescue insisted, was to stop the process at the source: the sovereign must jealously assert his power and guard his revenues.
Naysayers might malign such rulers as “greedy” and “power-hungry,” but the wise ruler, argues Fortescue, understands the royal sources of revenue not as his own personal property, but the property of the Crown as an institution, a patrimony that he is duty bound to maintain and bequeath intact (or increased) to his successor. Fortescue goes so far as to advise his new master Edward IV to make it a matter of law that the king cannot give away or sell Crown lands without consent of Parliament. The royal power must be “limited” so as to strengthen it. Indeed, although we are liable to equate strong government with expensive government, Fortescue observed the opposite to be the case in Henry VI’s court. Since Henry VI had only the weakest of holds on the reins of government, he was unable to prevent his agents and courtiers from wasteful and unsustainable spending, and could not resist showering his supporters with key revenue streams that would enable them to then live independently of his support. Such prodigality altered the balance of power in the realm, enriching and empowering key noblemen at the expense of the king, and thus tending to divide and dissipate sovereignty.
Whereas modern conservatives have worried obsessively about the threats of injustice lurking in the overconcentration of public power, Fortescue saw keenly the threats in the opposite direction. A king who was too weak to uphold the rule of law was every bit as much of a danger to the public as a king who thought himself too strong to be bothered with law. As Shelley Lockwood observes in her introduction to Fortescue’s works, “A chronically weak king was as much of a threat as a tyrant because he would lack that constant and perpetual will to justice which was the sworn duty of his office.”10 Ultimately, Fortescue recognized, the steady administration of justice requires a vigorous, independent, and well-funded Crown.
To this end, the aged Fortescue advised in Governance that the king should undertake, with support of Parliament, a vigorous resumption of Crown lands that had been foolishly given to unworthy parties in previous years. Fortescue also counseled that henceforward, when a deserving subject needed to be rewarded for his services to the realm, the king should, whenever possible, do so with cash rather than with lands, reserving the latter as a long-term income stream for the Crown. Fortescue also called for an overhaul of the royal administration, establishing a regular council of twelve lay and twelve clerical advisors drawn not necessarily from the upper ranks of the nobility, but from the most talented civil servants of lower rank. This remarkably modern proposal for replacing a fractious feudal council with an efficient and professional civil service, along with Fortescue’s advice on fiscal policy, bore fruit in the farsighted, tight-fisted policies of Henry VII, who ended the Wars of the Roses and established the Tudor dynasty in 1485, laying the foundations for England’s future greatness.
But why, we might ask, should we prefer the centralized power of the monarchy (or “the state” to use a somewhat anachronistic term) to the power of “over-mighty subjects”? Why not accept the flow of power from center to periphery as a fait accompli and acknowledge the effective sovereignty of the barons?
This question misses Fortescue’s key insight into the nature of power, an insight that proved foundational to the Anglo-American political tradition and used to guide conservative reflection before its lapse into libertarian amnesia. For Fortescue, the royal power was both centralized and distributed—centralized because concentrated in one responsible agent, but distributed because residing in one responsible agent. In England, he insisted, the Crown did not exercise mere “regal rule,” in which the king makes the law, as in some other European monarchies that were to evolve in an increasingly absolutist direction. Rather, it exercised “political and regal rule,” in which it could just as well be said that the law makes the king. Political rule, in Fortescue’s terminology, was a form of self-rule by a people seeking their shared interests. Such a people might appoint a king to guide and lead them, but his power derived from the body politic, and the laws of such a polity were not the mere commands of a superior, but rather the fibers or “sinews” which bind together the people, and hold both subjects and rulers accountable to seek the common good. Indeed, Fortescue boldly insists that the king who rules politically will himself be stronger (or at any rate, no less strong) than the king who rules regally, a king whose will is law, since “to be able to do evil, as the king reigning royally can more freely do than the king ruling politically, diminishes rather than increases his power.”11 By confining the king’s will within wise limits, the laws channel it toward the good of the people, giving such a king more effective power than the king whose will is unrestrained from acting rashly and destructively.
In England, the built-in controls of the common law, together with the requirement that the king rule by parliamentary consent, served as restraints upon royal power that actually made it more effective than private power. The power of the king was to be preferred to the power of the barons not merely because it helped prevent anarchy but because it was at least to some extent accountable to the public, responsible to the popular will. The rough justice of the barons could never command such legitimacy.
The Age of the Robber Barons: Feudalism in Nineteenth-Century America
Although rich in lessons for our own time, the age of Fortescue is so far from the present that we might be forgiven for struggling to grasp its relevance. Before fast-forwarding to the twenty-first century, then, it might help to take a brief whistle-stop in the nineteenth.
America had spent its first century as a nation fighting fiercely against the centrifugal forces of sectionalism. And like Lancastrian England, by the end of the Civil War it had apparently achieved a hard-won triumph: sole sovereignty, henceforth, was understood to be vested in the one national people of the United States, expressing its will supremely through the organs of the federal government. The Supreme Court of the United States, armed with the Fourteenth and Fifteenth Amendments, now had a jurisdiction capable of trumping all lesser legislative and judicial authorities, and the president, having just exercised extensive war powers to pull the country back together by force, could surely overawe every other power in the land. And yet, as in fifteenth-century England, years of weak and inept leadership by the supreme executive generated a dangerous flow of power from the center to the peripheries. This centrifugal movement took the form of a renewed sectionalism after the abandonment of Reconstruction in 1877; but equally seriously, it revealed itself in the emergence of private actors—trusts and corporations—endowed with increasingly dangerous economic power.
Like the openhanded administration of Henry VI, all levels of U.S. government after the Civil War sunk into a reflexive cronyism, generously handing over lucrative railroad right-of-ways, charters, and monopolies in response to political donations or outright bribes. At the same time, the antiquated legal system had not yet adapted to the new national scale of the American economy. Immense trusts, like John D. Rockefeller’s Standard Oil, and the railroad conglomerates controlled by the Vanderbilts and the Morgans, created industrial and financial empires that reached from coast to coast, subject only to the increasingly impotent regulation of state legislatures and attorneys general. While the term “robber barons” might be unfair, inasmuch as these titans saw themselves as scrupulous guardians of the rights of private property, the allusion to “barons” is certainly apropos. Like the men of Fortescue’s England, these industrial overlords exercised virtual sovereignty in their private domains, able to ignore or cow public officials who might seek to rein them in, and buy influence that rivaled or even surpassed that of the state. Through their monopoly power and immense employment rolls, they held large swaths of the country in clientage. “We have three crops,” wrote one Nebraska newspaper editor, “corn, freight rates, and interest. The farmers farm the land, and the businessmen farm the farmers.”12
This new feudalism reached its apogee in 1901, with the formation of the mammoth conglomerates U.S. Steel and Northern Securities by J. P. Morgan and his associates. The journalist Ray Stannard Baker analyzed these developments in a series of searing articles for McClure’s magazine, observing that Morgan now controlled “a yearly income and expenditure nearly as great as that of Imperial Germany, paid taxes on a debt greater than that of many of the lesser nations of Europe, and by employing 250,000 men, supported a population of over one million souls, almost a nation in itself.”13 The Northern Securities Company, he wrote, was an “absolute dictator in its own territory, with monarchical powers in all matters relating to transportation.”14 Morgan, observes Ron Chernow, was simply “too large for the flimsy regulatory structures that encased him. He had outgrown his age.”15
By this point, the familiar four-step process of feudalization had more or less run its course. During the Civil War, the weak federal government had given lucrative contracts to well-placed businessmen who used this wealth to consolidate a dominating position in various industries, and had given immense gifts of public land to railroads, which were meant to serve the national interest but were largely left alone to reap the windfall profits that came with network control. Having amassed wealth, they amassed clients in the form of their dependent consumers, contractors, and employees, as well as the growing ranks of lawmakers and judges in their pay. Thus entrenched, they wielded semi-sovereign powers, filling the vacuum of government and conducting what Ron Chernow calls “a form of national industrial policy, albeit conducted by businessmen for private gain.”16 Finally, through their financial contributions and media assets, they largely determined the course of elections, ensuring the victory of business-friendly William McKinley in 1896 and 1900.
But they didn’t bank on his assassination, and the new occupant of the White House, Theodore Roosevelt, did not consider himself bought and paid for. Heralding a profound shift in government policy toward the corporations, he instructed his Justice Department to file an antitrust suit against the Northern Securities Company in 1902. Imagining the federal government to be just another rival operator with whom he could make a mutually advantageous agreement, Morgan casually told Roosevelt, “If we have done anything wrong, send your man to my man and they can fix it up.” Roosevelt, however, was determined to reassert the proper locus of sovereignty, declaring “the power of the mighty industrial overlords of the country had increased with giant strides, while the methods of controlling them, or checking abuses by them on the part of the people, through the Government, remained archaic and therefore practically impotent.” The Northern Securities suit “served notice on everybody that it was going to be the Government, and not the Harrimans, who governed these United States.”17
Trust-busting, however, was a measure of limited utility. Democrat populists like William Jennings Bryan had responded to the era of the great trusts by nostalgically clamoring for the restoration of an economy of small producers. Roosevelt, by contrast, recognized that the new American industrial economy required corporations of immense scale. The key was to ensure a firm legal subordination of private to public power, using the power of the federal government—the only government large enough to control such titans—to bring their activities in line with the public good, rather than naïvely allowing them to self-regulate their vast domains. Crucial to this process was the legal reform that recognized railroads as common carriers—networks with public power that must serve public purposes, treating all customers fairly and equally. It also involved the consolidation of fiscal and political power at the federal level that would be sufficient to prevent a return of the cronyism that had allowed the industrial titans to bend government to their will. As Michael Lind has argued, the necessary political changes, largely delayed until the 1930s, marked a “third American republic” that held sway until the deregulation craze of the 1980s and 1990s, which sowed the seeds for the new feudalism of our own day.
Resisting Our New Feudalism
What, then, of our new Big Tech overlords? It is not hard to see, played out with dreary inevitability in twenty-first-century America, the four phases of feudalization observed above. First, the federal government, encouraged by a conservative movement hell-bent on reducing centralized power, began conferring lucrative contracts, fiscal privileges, and valuable forms of property on seemingly loyal corporations in return for services rendered or anticipated. The genesis of Big Tech is a case in point. Not only were tech companies allowed to reap immense private profits from the public investments that drove internet technology; more significantly, the biggest players were allowed to profit from the creation of an entirely new form of intellectual property: user data. This data, which Shoshana Zuboff calls “behavioral surplus,” became the key asset at the heart of Google’s immensely lucrative business model, which was subsequently duplicated by the rest of the faangs, fueling their meteoric rise to a commanding position in the American economy.18 This immense value store was not so much discovered by brilliant entrepreneurs, much less created by their value-generating activities, but was essentially a regulatory gift to Silicon Valley.
The other three phases followed as a matter of course. Apple, Amazon, Facebook, Google, and the rest each succeeded in establishing a nearly captive user base, locking users into networks which competitors could not realistically challenge. Facebook reached five hundred million active users in July 2010, one billion in October 2012, and 2.8 billion by the end of 2020—more than 35 percent of the world’s population, including 99 percent of U.S. adults.19 Although these companies have not grown their workforces as rapidly as their profits, Amazon is now on track to surpass both Walmart and the federal government within the next couple years to become the largest U.S. employer. Throughout this whole period, U.S. federal employment as a percentage of the workforce has been in slow decline, as the government has outsourced many of its activities to private contractors, including Big Tech. As Zuboff observes, the surveillance imperatives of the War on Terror years helped midwife the surveillance capitalism that now drives the American economy.20 Is it any wonder that, having first assumed the prerogatives of sovereignty by engaging in comprehensive surveillance of the American people, they have also undertaken the sovereign role of policing speech, behavior, and ideas—unconstrained, however, by the constitutional safeguards that limit the exercise of public authority? Nor is it any wonder that, like the industrial titans of the 1890s or the kingmakers of the fifteenth century, they have increasingly taken it upon themselves to choose for the people whom their nominal leaders will be, with Google and the social media giants going to remarkable lengths in both 2016 and 2020 to try to ensure the defeat of Donald Trump. Well might a foreign observer say in 2021, echoing the French ambassador’s wry observation in the 1460s, “The Americans have two presidents—Jeff Bezos and another whose name I have forgotten.”
As Fortescue saw in his time, and Teddy Roosevelt again at the turn of the twentieth century, there are two great dangers with this state of affairs. First, such balkanization of the body politic, coupled with extreme wealth stratification, can lead to violent social unrest, such as that which racked American cities in the 1890s and was witnessed again last year. Second, even to the extent that the quasi-sovereigns of this feudal order succeed in maintaining law and order, they will do so more and more at the cost of the freedoms that have flourished within our constitutional order. Big government is a beast that needs taming, to be sure, but at least the tools lie always ready at hand to tame it; it is accountable to the people and to the courts for the just exercise of its power. Its power is centralized yet distributed, as Fortescue argued of the Crown-in-Parliament. Not so Facebook, Google, or Amazon. Operating largely in a legal no-man’s-land and without effective accountability structures, they govern their fiefdoms at best autocratically, and at worst on the whim of the woke mobs that periodically hold them to ransom. This, then, is the challenge for conservative politics in the third decade of the twenty-first century: not the overconcentration of power in the public center, but the flow of power to increasingly autocratic private overlords. This might be a plausible enough realization of the libertarian dream, in which most formerly public functions are carried out by the private sector; little surprise that it turns out to be a nightmare.
How, then, do we wake up from it? A lively debate on this crucial question is now belatedly underway across the spectrum of American politics, and several regulatory approaches have been proposed. The first is a renewed bout of trust-busting, signaled perhaps by the DOJ’s current antitrust suit against Google. If we can break down the huge conglomerates that have grown too big for the public good, then perhaps they will no longer pose such a great threat to liberty. A slimmed-down Google or Facebook might still exercise nefarious censorship or exploit its users, but annoyed consumers could have the choice to turn to rival platforms, and the tech giants would at least be unable to charge monopolistic rents or control the political process. A trust-busting approach would also seek to restrict major tech firms from colluding in censorship, such as Josh Hawley has recently documented in The Tyranny of Big Tech.21 At the very least, firms that already dominate their own platform space should be banned from acquiring new platforms, as Facebook has done with Instagram and Google with YouTube, and a sensibly aggressive antitrust initiative would require these companies to divest such subsidiaries. Some will argue, however, that because of network effects, at least some of these giants represent natural monopolies that will tend to reassert themselves even if temporarily cut down to size, as Roosevelt ultimately recognized a century ago.
In that case, the important thing is to insist on treating them as effectively public institutions, bound to serve the public good and accountable to public scrutiny. Section 230 of the Communications Decency Act was originally designed to recognize the public character of online content providers as open fora for private speech: it shielded tech firms from liability for the content they hosted, while authorizing good faith censorship of obscene content for the public interest. As the internet has evolved, however, both aspects of this policy have proven shortsighted: Big Tech has interpreted its censorship powers ever more broadly, while continuing to wield its legal immunities against all challenges to its predatory and discriminatory behaviors. There is now a rising bipartisan chorus for reforming or revoking Section 230 protections. In their place, the federal government might turn to well-established common law categories for ensuring that businesses “clothed in the public interest” genuinely serve the public interest, by banning such businesses from discriminating among customers or users. The first is the category of “common carriers,” which recognized that, due to network effects, large businesses in certain sectors must be treated as public utilities, offering access to all users on equal terms. More than a century ago, the railroads were by this means deprived of the discretionary power to charge different rates to different customers, curbing many of the abuses of the “robber baron” era. Just so, if Facebook and Twitter were disabled from privileging or censoring different viewpoints on their platforms, it would hobble the worst features of their bids to sovereignty. A similar approach would be to treat social media platforms as “places of public accommodation,” which, since the civil rights era, have been subject to strict nondiscrimination rules. In his recent concurrence in Biden v. Knight First Amendment Institute, Justice Clarence Thomas outlined both strategies, as well as the current problems with Section 230, in calling for the courts to act more decisively against Big Tech censorship.22
On the other hand, such solutions, if applied too indiscriminately, could create as many problems as they solve. Clearly, the public interest would not be served by allowing pornographers to claim access to Facebook as a “common carrier.” Michael Lind, accordingly, suggests that in place of Section 230, the law establish a clear distinction between tech platforms like web browsers, cloud services, or payment services, that do indeed function as common carriers, and social media platforms that effectively are publishers, and must be treated as such.23 Under this regime, Facebook and YouTube would have to be up-front about their editorial and censorship rules, and subject to lawsuits like other publishers. This would lead quickly and naturally to a splintering of the social media universe into rival platforms with varying political slants, thus accomplishing one of the goals of antitrust as a by-product. At the same time, by thus reframing the relationship between user and platform, this approach could precipitate a salutary reevaluation of relative intellectual property rights: till now, user behavior has been treated as a massive, unending, free supply of intellectual property for the platforms to monetize. But if Facebook were a curated publisher competing with other social media for material, it might be forced to compensate its content creators like any other publisher competing for the best content.
Whatever the approach taken (and likely it should be an “all-of-the‑above” approach), one thing should be clear: tackling Big Tech will require conservatives to first subdue their own phobias about government power. As Fortescue argued in the wake of the Wars of the Roses, it is not power per se that lovers of liberty must fear, but unaccountable, irresponsible power. In the constitutional tradition he helped inaugurate, which inspired the American Revolution and Theodore Roosevelt’s revolution against the robber barons, what matters chiefly is that power be exercised by the representatives of the people, governing according to established laws. And the sovereign lawmaking people must be more powerful than all rival would-be sovereigns within the polity. To be sure, if all the situation called for was antitrust, we might think that government could stay smallish—so long as tech was made even smaller. But as Roosevelt realized a century ago and Fortescue more than five centuries ago, it’s never that simple. In the absence of vigorous central power, power will always tend to flow back to the peripheries. “It is impossible to do good works without resources,” Fortescue observed, quoting Aristotle, in his Governance of England, insisting on the need for an amply funded central government.24 Conservatives today should remember this lesson; perhaps there was a time when it made sense to starve the beast, but with much more threatening beasts now circling around on every side, there is something to be said today for making sure the federal government is well fed, well funded, and well staffed.
If it is impossible to do good works without resources, the same is true of bad. The feudal barons of Lancastrian England broke the leash when they were granted large gifts of crown lands, and the robber barons of the industrial era when they received the public lands on which their railroads ran. Today, the tech giants thrive off of immense intellectual property assets granted by the federal government, which make it possible for them to monetize user behavior almost effortlessly and destroy the market shares of their more scrupulous rivals. It is high time for Congress to fundamentally reconsider the legal framework within which Big Tech has been able to establish itself as a “woke parallel government,” before that parallel government eclipses constitutional government altogether.
This article originally appeared in American Affairs Volume V, Number 3 (Fall 2021): 99–115.
I would like to thank my colleague Josh Hammer for his invaluable feedback and suggestions on this essay.
1 Burgess Everett, “McConnell: Big Business Acting Like ‘Woke Parallel Government,’” Politico, April 5, 2021.
2 Porter Anderson, “US Publishers, Authors, Booksellers Call Out Amazon’s ‘Concentrated Power’ in the Market,” Publishing Perspectives, August 17, 2020; see also: Kinga Jentetics, “Amazon’s EBook Market Share 2019–2020,” Publishdrive, January 28, 2019.
3 Francis Fukuyama, “Facebook Sovereignty,” American Purpose, May 10, 2021.
4 Philip van Doorn, “Here’s How the Faang Companies Stack Up This Earnings Season,” MarketWatch, February 3, 2021.
5 California’s budgeted revenues for 2020–21 were $212 billion.
6 Blake Droesch, “Amazon Dominates US Ecommerce, Though Its Market Share Varies by Category,” Emarketer, April 27, 2021.
7 Sir John Fortescue, On the Laws and Governance of England, ed. Shelley Lockwood (Cambridge: Cambridge University Press, 1997), 103.
8 Fortescue, Laws and Governance, 101.
9 Adam Smith, The Wealth of Nations, Books I–III, ed. Andrew Skinner (London: Penguin, 1982), 509.
10 Lockwood, “Introduction,” in Fortescue, Laws and Governance, xvii.
11 Fortescue, Laws and Governance, 24.
12 Quoted in Doris Goodwin, The Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism (New York: Simon and Schuster, 2013), 191.
13 Quoted in Goodwin, Bully Pulpit, 297.
14 Quoted in Goodwin, Bully Pulpit, 298.
15 Ron Chernow, The House of Morgan: An American Banking Dynasty and the Rise of Modern Finance, narrated by Robertson Dean (Blackstone Audio, 2012), audiobook, ch. 5, 1:08:13–20.
16 Chernow, House of Morgan, ch. 5, 37:29–36.
17 Goodwin, Bully Pulpit, 299.
18 See Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (New York: Public Affairs, 2019), ch. 2.
19 Josh Hawley, The Tyranny of Big Tech (Washington, D.C.: Regnery, 2021), 148.
20 Zuboff, Age of Surveillance Capitalism, 113–17.
21 Hawley, Tyranny of Big Tech, 90–93.
22 Thomas, J., concurring, Joseph R. Biden, et al., v. Knight First Amendment Institute, et al., 593 U.S. (2021).
23 Michael Lind, “America’s New Corporate Tyranny,” Tablet, January 15, 2021.
24 Fortescue, Laws and Governance, 93.