The people of Athens preserved the ship of Theseus long after the hero’s return from Crete: “they took away the old planks as they decayed, putting in new and stronger timber in their place,” Plutarch reported. This sparked in the minds of philosophers the question of whether, once each plank had been replaced, the vessel was still the same one as that on which the Attic king sailed home.
As President Donald Trump’s appointees at the Department of Justice (DOJ) and Federal Trade Commission (FTC) unveil the theories that will guide their antitrust enforcement, a similar question arises. In a speech delivered at the University of Notre Dame Law School in late April, Assistant Attorney General for the Antitrust Division Abigail Slater outlined “America First Antitrust”, followed days later by FTC commissioner Mark Meador’s manifesto, a paper called “Antitrust for the Conservative.” These public servants purport to be conservatives. In fact, they claim to have recovered an older, truer, aboriginal breed of economic conservativism, dating to times before the movement’s colonization by economists and—mon Dieu!—libertarians. However, upon review of their principles and pronouncements—and their redefinitions of the role and function of economic policy—few planks of genuine American conservatism remain.
This new “conservatism,” while not exactly progressivism, is still a recognizable cousin of the left-wing antitrust theories that prevailed during the Biden administration. Both seek to expand the remit of antitrust enforcers from a narrow one, focused on combating economically anticompetitive behaviors, into something much broader: using antitrust to centrally plan markets to further the planner’s political, social, and economic goals.
Meador writes, “Even if one is to say that improved outcomes for consumers necessarily includes freedom from oppressive economic powers and the political harms [emphasis added] they may inflict, this still makes consumer welfare the ultimate end of competition.” He further labels big business “a threat to democracy.” “Big is bad,” writes Meador, employing a phrase in earnest that, until recently, conservatives considered nothing more than a shorthand for the things wrong with Biden’s radical enforcers. Likewise, Slater’s critique of today’s regulatory regime and economy springs from a dubious account of wealth distribution and manufacturing in modern America. The economic pie may be growing, Slater admits, but all this “begs the question [sic] as to the size of the slice that each community in our society receives.” In this telling, which would not seem out of place among Bernie Sanders staffers, free trade, immigration, and lax antitrust enforcement have vitiated manufacturing and eroded the American dream. Such catchphrases as “neoliberalism” and “globalization” and “the Washington Consensus” serve as sinister-sounding synonyms for Americans’ right to contract and barter freely with one another and with foreigners. The remedy, says Slater, is state control of markets. Whether propounded by progressives or “conservatives,” this understanding fails doubly, like that of a 13th-century physician unsheathing a bloodletting knife to rebalance the patient’s humours: the diagnosis is faulty, and the prescription inapt.
Meanwhile, conservatives have traditionally regarded curbing anti-competitive practices, not wealth redistribution or the micromanagement of markets, as the rightful domain of antitrust enforcers. Meador further endorses as “deeply conservative” judicial rulings—including a quote from former Chief Justice Earl Warren—that encourage propping up small, uncompetitive businesses at the consumer’s literal expense.
This threatens the property rights and economic liberty on which America was founded—the property rights of companies and the right of consumers to contract freely. A company whose excellence keeps its competitors at bay has engaged in competition, not coercion—even if most consumers consequently deal only with that one firm. As historians, such as Thomas G. West, have documented at length, the right to property was to the Founders a central and unshakable pillar of justice. “That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest,” wrote James Madison. The holdings of American businesses are not public property to be managed and directed from Washington, D.C. A firm doing business with the public is not a public institution that regulators may insist tailor its practices to an officially prescribed economic plan.
The implementation of this idea vindicates its theoretical hazards. The FTC is now attempting to undo Meta’s acquisitions of Instagram and WhatsApp—mergers now a decade old or more, which a previous generation of regulators allowed to go forward. At this late hour, the FTC’s bid is not a policing of a merger, but a confiscation. In another instance, the FTC has made clear its intent to trespass on the guaranteed right of online platforms to moderate content as they see fit (known for short as “editorial discretion”), because platforms have at times moderated imprudently and intolerantly, a blatant violation of the First Amendment.
“America First Antitrust” also struggles against the American conservative traditions of law and economics. Meador prefers a regime in which the legal presumption cuts against businesses’ decisions, advocating “[s]hifting our antitrust enforcement mindset from one concerned about overdeterrence to one more concerned about underdeterrence.” This sentiment cannot be squared with the American legal tradition, which presumes that private citizens and institutions enjoy liberty until the government proves definitively that their actions have invaded the rights of others. What’s more, Meador dismisses “permissionless innovation”—the notion that citizens should be free to work and innovate absent good cause—as “a progressive impulse,” which might startle such great Americans as Robert Fulton, Samuel F.B. Morse, and the Wright brothers. “Mother, may I?” regulatory enforcement is foreign to the character and history of American economic life, more the stuff of the Progressive era than the Founding.
The fundamental error Meador commits is this: “Conservatives must reaffirm that concentrated economic power is just as dangerous as concentrated political power, and that rightly ordered political power is a necessary and appropriate tool for restraining excessive economic power and preserving liberty.” In Slater’s words (cribbing from Sohrab Ahmari), “just as conservatives fear Tyranny.gov, they should fear Tyranny.com.”
However, polities are unique social arrangements, and political power is not the same as power in other institutions, such as the family or corporations. This is quite literally page-one material in Aristotle’s Politics. To put it in modern terms, one of these things is not like the other. In modern America, the corporation lacks the coercive power of the state in either breadth or depth. Powerful companies can, of course, abuse their market shares in myriad ways—some legally remediable, others not—but none has power over every one of life’s aspects, as the government does. Political thinkers have for centuries pondered the nature of political power and the sovereignty of the state. Never once would Bodin, Pufendorf, Blackstone, or James Wilson have thought sovereignty to inhabit private firms. The one type of organization boasts police forces, prisons, armies, navies, B-1 bombers, not to mention one of the most sophisticated intelligence services known since homo sapiens sent his friends over the hill to spy on those damned Neanderthals. The other is a company.
Meador and Slater’s overstatement of the dangers of consolidation in the private sector is no mere rhetorical gambit. The assumption that private power can be shaken only by regulatory intrusion points directly towards the kind of muscular enforcement the Trump administration now favors. Large companies—even purported monopolies—inevitably crack and crumble with time, subject to the discipline of markets and innovation. According to a 2023 analysis from Ernst & Young, S&P 500 firms average a lifespan of just 15 years. Only 52 of the Fortune 500 firms of 2021 had been such in 1955. “In just one year—between 2010 and 2011—26 businesses dropped off the list of the Fortune 500 largest companies, including Radio Shack and Levi Strauss,” economist Thomas Sowell wrote in Basic Economics.
“The rarity of genuine monopolies in the American economy has led to much legalistic creativity, in order to define various companies as monopolistic or as potential or ‘incipient’ monopolies,” Sowell observed keenly. Trump’s antitrusters number among such creatives. Hyperventilating analysts often declare monopolies ironclad and competition over, only for upstarts and innovators to outcompete the incumbents. In the tech sector—in which the Trump administration takes a particularly keen interest—analysts in 1998 (the year of Google’s launch) heralded Yahoo as the victor of “the search-engine wars,” deemed AOL instant messenger unassailable, and fretted over MySpace’s “natural monopoly.” Nonetheless, competition unseated all of them, as it will the tech giants of today. Private companies often behave badly, and markets require regulators to guard against force and fraud, but the notion that private power cannot be budged without energetic state intervention and central planning rests on scant evidence.
The trouble traces back to a dubious recapitulation of intellectual history, an attempt to uncover the roots of an interventionist antitrust agenda in the soil of the Anglo-American tradition. Meador’s paper quotes Jefferson’s, Madison’s, and Adam Smith’s excoriation of monopolies, Slater notes that the Boston Tea Party followed a British attempt to prop up the East India Company. Both invoke Edmund Burke, without reference to Burke’s Smithian economics.
What these men deplored was state-granted monopolies, a feature of the British mercantilist system—not the large market shares of competitive, wholly private firms not benefitting from state favoritism. The East India Company did not acquire its private armies from free-market competition. “While monopolies in the 18th century were almost exclusively creations of the state, a grant bestowed by the legislature, Madison’s and Smith’s objections were not merely that the government would do such a thing, as opposed to the conduct of private actors,” Meador writes. “Their objections were to the concentration of power inherent in monopoly itself.” He fails to substantiate this assertion with even a footnote. The error Meador and Slater commit resembles tarring Madison as a foe of Christianity because he fought for disestablishment.
If “America First Antitrust” counts as conservative, it is not an American conservatism but a European one. As Friedrich Hayek put it, the European conservative harbors “fondness for authority” and a “lack of understanding of economic forces.” Although not blind to the potential—nay, likely—problems that attend innovation and change, the American conservative trusts in the largely unmanaged, undirected choices of individuals and institutions of civil society and the market to produce virtue, prosperity, and flourishing better than any state or statesman ever could. American history vindicates this confidence. “The conservative feels safe and content only if he is assured that some higher wisdom watches and supervises change, only if he knows that some authority is charged with keeping the change ‘orderly.’” Hayek wrote. Adam Smith had similar ire for those he dubbed “men of system.”
Whether a ship retains its identity after a total overhaul is a question for the philosophically inclined. Whether the Trump administration’s antitrust officials are conservatives in the American sense can be answered—and answered easily—by anyone. They are not.
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