They are working more or less equally in the public interest, they suffer and enjoy different but in the end roughly balanced risks and rewards, and neither deserves to be held in higher esteem than the other or granted special status and privileges. And, yet, one is. Kings, politicians and their underlings, and all those whose faculties are amplified and actions are generalized merely by their position, often fall victim to an invidious presumption. The lawyer in this case, standing in for many others who also think this way, may believe that because of what he does he is nobler than most. He isn’t.
My fate after unsuccessfully seeking a glimpse of Faye Dunaway was to spend a year reading Melville with Professor Alfred. I am glad of it, and glad as well that Professor Alfred was generously supported by Harvard for, among other things, teaching Melville to me. Harvard exists, in part, to do just that. Having accumulated an endowment of $40 billion, it can certainly afford to do so. And during all its long life of almost four hundred years it has been free of taxes. Not even the Queen of England is free of taxes anymore.
Why is it, however, that Harvard, the job of which, partly anyway, is (or was) to teach its inmates Melville, pays no tax, whereas Melville’s publisher—who, just as Harvard paid Professor Alfred, paid Melville—did have to pay, and now of course would also have to pay? One produces Moby Dick, and pays tax. The other teaches it, and does not. One is for profit and the other is not, but Harvard is richer and its professors and chiefs are paid as well as or better than their opposite numbers in publishing, and the money potentially distributed to the shareholders of a publisher is probably no greater than the various benefits received by the affiliates of a university, minus the costs borne by various segments of society in compensation for and to foot the privileges of a tax-exempt organization.
Though effects, conditions, and even motivations—if not self-advertisement—are comparable, a bias exists for the nonprofit nonetheless, of honor accorded, support granted, and privileges awarded. In many cases, nonprofit institutions, which need not respond to market forces and often lose touch with what people actually want, serve the general interest less well and less efficiently than profit-making entities that must, if they are not to vanish, heed the dictates of the public. It is not necessary to penalize the worthy nonprofit, which often would not be able to function within the market, and would therefore leave a need unfilled. Rather, it is necessary to point out the disparity in treatment that does penalize profit-making activity that can serve the public equally well or at times better. For just as needs might go unfulfilled were nonprofits driven from the field by taxation, they do go unfilfilled when profit-based enterprises are driven from the field by taxation.
The prejudice that wrongly favors one type of endeavor over another which can be equally or more virtuous and often responds more precisely to the public interest, shares a common ancestor with a disdain for property, a hostility that overlooks not merely the necessity of property but its function as a prop of liberty. As Shakespeare had Shylock say both perceptively and justly:
You take my house when you do take the prop
That doth sustain my house. You take my life
When you do take the means whereby I live.110
It is true that compared to our higher nature property is base, but as we are creatures of the material world our base imperfections require a material structure so that our spirit may be free. Too ready and too careless a seizure of property—whether by eminent domain, taxation, “progressive legislation,” or simple theft—impinges not merely upon well established and utilitarian rights, but is a partial taking of life itself.
We are hardly familiar with the maxims of Louis IX, the Pious, who prayed like a dervish and wore a hair shirt, but it was he who wrote, in strikingly Chinese style for a medieval French king: “If a poor man has a quarrel with a rich man, support the poor rather than the rich—at least until the truth can be ascertained.”111
This makes sense in light of the probable advantages a surfeit of resources might bring to the rich man, and it is why one of the common suggestions for tort reform, that the loser bear all the costs, is fundamentally unjust. Very few would dare sue or defend when faced with an adversary possessing great financial resources. Such a “reform” would mean that the powerful would be virtually unaccountable and the ordinary citizen would look upon the justice system as something so dangerous as to be even more forbidding to his interests than it is already. A bias for the poor is commendable where appropriate, as a compensating weight in an imbalanced world. But even in the thirteenth century, when animal skins were hung in the heights and on the walls of the cathedrals of Europe, Louis knew enough to state, “at least until the truth can be ascertained.” That is, compensatory bias as an instrument of justice cannot live beyond the facts, and must be subject to continuous and searching consideration. If it becomes merely habitual, it becomes an instrument of injustice. If it is a matter of rote, of formula, and, worse, of self-satisfaction—a means to preen and glow for the public—it becomes insufferable, not least because the judgment of who is rich and who is poor is entirely relative.
I once returned to my
