Topic: Political Philosophy

The United States of Permanent Receivership

Next year marks the 30th anniversary of the appearance of the second edition of Theodore J. Lowi’s The End of Liberalism, subtitled The Second Republic of the United States. The preface to the second edition ends, “I want to express a very belated thanks to Friedrich A. Hayek. His work had much more of an influence on me than I realized during the writing of the First Edition. I neither began nor ended as a Hayekist but instead found myself confirming, by process of elimination and discovery, many of his fears about the modern liberal state.”

Lowi argues that the Second Republic is marked by “the state of permanent receivership,” which is defined as “a state whose government maintains a steadfast position that any institution large enough to be a significant factor in the community may have its stability underwritten. It is a system of policies that sets a general floor under risk, either by attempting to eliminate risk or to reduce or share the costs of failure.” This state includes anticipatory receivership, which includes “businesses that are not actually on the brink of bankruptcy but are in a sector of the economy where bankruptcies or reorganizations are likely unless there is some kind of a preventive measure.”

Thirty years out, Ted Lowi looks pretty good this morning. Not much else looks good, but the second edition of The End of Liberalism shows that this dour morning has been coming for some time.

Read the book.

Cult of the Presidency in National Review

Claremont Institute fellow Michael M. Uhlmann has a dismissive review of The Cult of the Presidency in the current issue of National Review: “It’s Not Just the Executive,” September 15, 2008. (Here it is if you get NR Digital, otherwise it’s available in the print edition). It seems to me that the review largely consists of inaccurate characterizations, unsupported assertions, and non sequiturs. But hey, I’m the author, and understandably biased, so check it out and judge for yourself.

Uhlmann writes that “The bulk of Healy’s book is devoted to various sins, offenses and negligences of the Bush administration.” That’s a bizarre statement, given that the book has nine chapters and an introduction, and only three of those chapters cover GWB’s tenure. In fact, the “bulk of the book” is devoted to demonstrating that, as I write in Chapter Two, “the problems of the modern presidency did not begin when George W. Bush emerged victorious from 2000’s seemingly interminable Battle of the Chads” and that–despite what some on the Left seem to believe–those problems will not vanish in January 2009 when he heads back to the ranch to cut brush.

The book is a history of the presidency’s transformation from the important, but constitutionally limited office the Framers designed to an extraconstitutional monstrosity charged with moving the masses and saving the world. But by beginning his review with a discussion of “unhinged” Bush critics, and mischaracterizing the book’s contents, Uhlmann has undoubtedly left NR readers with the impression that The Cult of the Presidency is yet another partisan screed against the current administration.  Move along, nothing to see here.

That’s a shame, because conservatives could surely benefit from reexamining their decades-long affinity for strong presidencies.

There’s nothing particularly conservative about investing vast unchecked power in the hands of whichever professional politician manages to claw his way to the top in a modern presidential contest. As Russell Kirk put it, “Knowing human nature for a mixture of good and evil, the conservative does not put his trust in mere benevolence. Constitutional restrictions, political checks and balances, adequate enforcement of the laws, the old intricate web of restraints upon will and appetite—these the conservative approves as instruments of freedom and order.” And if principled reasons aren’t good enough, the fact that Republicans, let alone conservative Republicans, are unlikely to dominate the electoral college in the coming decades ought–like the prospect of a hanging–to concentrate the mind somewhat.

Uhlmann is willing to concede that the Bush administration’s claims of uncheckable authority over the detention and treatment of terrorist suspects “entail arguable legal propositions.” Which is gracious of him. But he provides very little argument for his view that the Framers envisioned a president with anything like the powers the current president–or others before him–have claimed. What arguments he provides often consist of offering innocuous and uncontroversial historical claims about 18th-century Americans’ views of executive power–as if those claims establish that the modern presidency is the constitutional presidency. In each case, he falls a few premises short of a syllogism.

Yes, the Federalist suggests, as Uhlmann notes, that “legislative excess is the danger chiefly to be guarded against in a republic.” But that was so, as Madison explains in No. 48, because the government the Constitution envisioned would be fundamentally different from one in which “numerous and extensive prerogatives are placed in the hands of a hereditary monarch.” Legislative power was more to be feared precisely because under the American Constitution “the executive magistracy is carefully limited, both in the extent and the duration of its power.”

Yes, the Framers sought to avoid some of the mistakes made in some of “the state constitutions adopted between 1776 and 1787” and to create a relatively vigorous and independent executive. But there’s quite a distance between that fact and the current administration’s claims that Congress cannot restrain the president from ordering torture and that the president has the power to permanently imprison American citizens without charges or legal process. (Uhlmann treats these issues at greater length in an extensive essay on presidential powers in a recent edition of the Claremont Review, in which, it seems to me, the verbiage-to-evidence ratio is also fairly high.)

Then there’s Uhlmann’s painfully obvious argument that “It’s Not Just the Executive” that’s a problem in our modern welfare-warfare state. Well, yes. It’s not clear who Uhlmann’s arguing with when he points out “the size and arbitrariness of government in general” are intertwined with concerns about a powerful presidency, and that the growth of presidential power would not have been possible without the collaboration of Congress and the judiciary. I make the same points repeatedly and at length throughout the book.

But the book focuses on the presidency because the president has become the focal point of Americans’ dangerously unrealistic expectations about what government can deliver, at home and abroad. As the political scientist Theodore Lowi explained (and as I discuss in the book), the post-New Deal state pledged itself to the constant delivery of goods and benefits, with the public looking most of all to the president to meet the key test of the new regime’s legitimacy: “service delivery.” The emerging “Second Republic of the United States” was one in which, as Lowi sums up, “the system of government had become an inverted pyramid, with everything coming to rest on a presidential pinpoint.”

So the presidency is important. It merits special attention, perhaps especially from conservatives, given their longstanding myopia about the dangers of presidential power. For too long the Right has been wedded to the odd proposition that next to the “Imperial Congress” and the “Imperial Judiciary”, the executive branch–the branch with guns–is the least dangerous branch. I’m glad that NR reviewed the book, and I didn’t expect an uncritical embrace of my perspective. But I would have preferred a serious discussion of the issues the book raises.

Johan Norberg vs. Naomi Klein, Round 3

Last May Johan Norberg wrote a devastating critique of Naomi Klein’s book The Shock Doctrine: The Rise of Disaster Capitalism. (Watch him talk about it here.) In his paper, “The Klein Doctrine: The Rise of Disaster Polemics,” he took her book apart:

The Shock Doctrine purports to be an exposé of the ruthless nature of free-market capitalism and its chief recent exponent, Milton Friedman. Klein argues that capitalism goes hand in hand with dictatorship and brutality and that dictators and other unscrupulous political figures take advantage of “shocks”—catastrophes real or manufactured—to consolidate their power and implement unpopular market reforms. …

Klein’s analysis is hopelessly flawed at virtually every level. Friedman’s own words reveal him to be an advocate of peace, democracy, and individual rights. He argued that gradual economic reforms were often preferable to swift ones and that the public should be fully informed about them, the better to prepare themselves in advance. Further, Friedman condemned the Pinochet regime and opposed the war in Iraq.

Klein’s historical examples also fall apart under scrutiny. For example, Klein alleges that the Tiananmen Square crackdown was intended to crush opposition to pro-market reforms, when in fact it caused liberalization to stall for years. She also argues that Thatcher used the Falklands War as cover for her unpopular economic policies, when actually those economic policies and their results enjoyed strong public support.

Klein’s broader empirical claims fare no better. Surveys of political and economic freedom reveal that the less politically free regimes tend to resist market liberalization, while those states with greater political freedom tend to pursue economic freedom as well.

Now Naomi Klein has responded to Norberg’s critique. (Though she can’t bring herself to name him. No point in giving your critic free advertising, calculates the author of No Logo. Norberg muses, “I think it’s because it sounds more David-and-Goliath if she is not criticised by a young Swede, but by ‘The Cato Institute.’”) And Norberg has fired back with another refutation. This time, he finds,

Her response is selective, includes new mistakes, and backs away from some of the claims that she has made without acknowledging it. …she also has nothing to say about the fact that all of her central claims are under attack

From describing Friedman–and Cato!–as neoconservatives, to slyly implying that Friedman supported land theft in Sri Lanka, to juggling statistics and years, Klein is once again revealed to be building a shocking indictment on a foundation of sand.

For a book on globalization that makes sense, skip Naomi Klein and read Johan Norberg’s In Defense of Global Capitalism.

Leftism in the Schools

Buried in his profile of Barack Obama’s background, David Maraniss discusses one of his mother’s favorite classes at Mercer Island High School near Seattle in the late 1950s:

Their curiosity was encouraged by the teachers at Mercer Island High, especially Jim Wichterman and Val Foubert, who taught advanced humanities courses open to the top 25 students. The assigned reading included not only Plato and Aristotle, Kierkegaard and Sartre, but also late-1950s critiques of societal conventions, such as “The Organization Man” by William H. Whyte, “The Lonely Crowd” by David Riesman and “The Hidden Persuaders” by Vance Packard, as well as the political theories of Hegel and Mill and Marx. “The Communist Manifesto” was also on the reading list, and it drew protests from some parents.

Seriously? This was the reading list? Hegel and Marx, but no Locke and Smith, the thinkers who actually revolutionized the world we live in? “Late-1950s critiques of societal conventions” like The Lonely Crowd and The Hidden Persuaders, but not Hayek’s Road to Serfdom, Chambers’s Witness, or Buckley’s God and Man at Yale? Weren’t those critiques of societal convention? (True, Plato and Aristotle weren’t leftists, and Mill was a classical liberal. But there are no conservatives, free-market advocates, or contemporary libertarians.)

It’s hard to imagine that parents objected to such a reading list….

But Maraniss assures us that there was nothing leftist about it:

In tracking the Obama story this year, some conservative Web sites have seized on the high school curriculum of his mother as evidence of an early leftist indoctrination. [Her high school classmate Chip] Wall, who has spent his life challenging dogma from any ideology, and whose take on the world often veers from the politically correct, answered this interpretation with a two-word dismissal: “Oh, crap.”

Well, I wouldn’t hold Obama responsible for what his mother was taught in the Seattle suburbs before he was born. But it’s pretty clear that this high school course tilts far to the left. And of course such reading lists are even more common in college. Today the lists include more racial and gender diversity, though no more ideological diversity. And this list demonstrates that you can put together a plenty left-wing reading list composed entirely of Dead White European Men (some of whom weren’t even dead at the time).

“Cult” Watch

CNBC just ran a feature entitled “Electing the CEO of America.” It’s a great illustration of the insane expectations Americans invest in what’s supposed to be a limited, constitutional office. As I write in that book,

Over the second half of the 20th century, Gallup polls showed that an average of 41 percent of Americans per year cited economic issues as the most important problems facing America. Here, as usual, the buck stopped with the president, Rossiter’s “Manager of Prosperity,” despite the fact that expecting any president to successfully “manage” a 13-trillion dollar economy made up of some 150 million workers, each with their own plans and goals, is unrealistic, to put it mildly.

The only presidential candidate in recent years to echo William Howard Taft’s 1912 admonition that “the national government cannot create good times,” was a fictional one, Republican contender Arnold Vinick, played by Alan Alda on NBC’s “West Wing.” In November 2005, the network aired a live “debate” between Vinick and his Democratic opponent, Jimmy Smits’ Matt Santos. Asked “how many jobs will you create?” Vinick said “None.” “Entrepreneurs create jobs,” he elaborated, “Business creates jobs. The president’s job is to get out of the way.” Real-life contenders don’t talk that way, nor do real-life presidents. (For what it’s worth, Vinick lost.)

Though I suppose “CEO of America” is an improvement over Hillary Clinton’s phrase: “We need a president who is ready on Day 1 to be commander in chief of our economy.” As Jerry Taylor put it at the time, “we eagerly await your orders, ma’am!”

Noble Populism

Is populism a good and noble cause that could never be associated with bigotry? NPR host Liane Hansen seems to think so. On NPR’s “Weekend Edition Sunday,” she interviewed Christopher Hedge, who composed the music for a PBS documentary on Andrew Jackson. When Hedge called Jackson a populist, Hansen objected. What about his treatment of slaves and Indians? she asked–that doesn’t sound very “populist.”

Oh, dear. What does Hansen think populism is? The term can have many meanings, but it certainly seems to mean the rallying of “us” against “them.” Sometimes that means “the masses” against “the elites”–whether political or economic. But frequently those elites include Jews or Americans or other groups perceived to be more economically successful than they deserve. Eastern Europe’s populist parties these days fulminate against free markets and against Jews, Gypsies, and other ethnic minorities. No one seems to have any doubt that that’s what populists do. A leading American Populist politician, Tom Watson, railed against Catholics, blacks, and Jews as well as against “the corporations” and sound money. So did Pitchfork Ben Tillman, who implemented Jim Crow in South Carolina. Not all American populists were racists; many wanted to organize poor blacks and poor whites to defeat corporate interests. But the combination was common.

As for Andrew Jackson, he was in many ways a great fighter for freedom and democracy. But NPR’s researchers need to do some research on the attitudes of Jackson’s white working-class supporters toward blacks and Indians. You can bet they didn’t think other races were part of “us.”

Response to Professor Barron’s Critique of “The Dirty Dozen”

Prior commitments prevented me from participating with Professor David Barron in the Cato / American Constitution Society forum on The Dirty Dozen, which I co-authored with William Mellor.  I’m especially gratified, therefore, to have this second opportunity, which I will use to document seven errors by Professor Barron in his blog postings here and here.  Of course, the best and most complete rebuttal is the book itself, available for the shamefully low price of $17.13 at Amazon.           

Barron #1:  “The crime of the Supreme Court since the 1930s, so says this book, has been its refusal to lock in the laissez faire constitutional philosophy that reigned supreme in the decades leading up to the New Deal.”

Facts:  Laissez faire is never mentioned in the book – not once.  Included among our 12 worst cases are those involving the non-delegation doctrine, campaign finance regulation, gun owners’ rights, civil liberties, civil asset forfeiture, and racial preferences – none of which has anything to do with laissez faire economics.  Yes, we also cover cases relating to property, contract, and other economic liberties; but to suggest that we view the Court’s major crime as not upholding laissez faire is to ignore most of our book. 

Barron #2:  “Number one on The Dirty Dozen’s hit list is Helvering v. Davis … because it upheld Social Security on a broad theory of federal spending and taxing power.”  Moreover, Helvering’s “interpretation of the General Welfare Clause is not inconsistent with original understanding because there was no clear understanding on that point during the Founding.  Madison had one view, Hamilton another.”

Facts:  First, Helvering’s focus on Social Security was incidental to its inclusion.  Helvering is one of The Dirty Dozen because the Court, in favoring Hamilton’s view of the General Welfare Clause, made a mockery of the principle of enumerated powers.  The result: redistributionist schemes – including retirement programs, welfare, hurricane relief, medical care, housing subsidies, farm supports, and grants to the arts – that have no constitutional foundation, even if justified on policy grounds.

Second, we have never argued that a clear and consistent original understanding is required to support a particular constitutional interpretation.  Instead, we note that textualists consult the structure of the Constitution whenever the original understanding is ambiguous.  And we explain (p. 216) that “structure relates, first, to the internal relationship among the various provisions of the Constitution and, second, to the overall design or framework of government that the Constitution establishes.”  No reasonable legal scholar can deny that the Constitution was structured to restrain government and limit its operations to specifically enumerated powers.  By that all-important criterion, Hamilton’s open-ended conception of the General Welfare Clause cannot be defended. 

Barron #3:  The authors “candidly (and admirably) concede that originalism is actually of little help in explaining their hostility to a number of cases on their list.”

Facts:  We make no such concession.  Professor Barron has confused “originalism” (interpreting the Constitution in accordance with the meaning of its words when ratified) with original intent (focusing on the values and objectives of the drafters and ratifiers).  As Justice Scalia has written, “It is the law that governs, not the intent of the lawgiver.”  We recognize (p. 216) that “applying original intent … begs several questions:  Which drafters or ratifiers are authoritative?  How do we know their intent? … How are differing views among the drafters and ratifiers to be resolved?”  But we heartily endorse originalism.  Judges whose decisions are anchored in the words of the Constitution have an objective basis for their views.  Even when the meaning of the words is unclear, it provides a starting point, which can be supplemented by an examination of constitutional structure, purpose, and history. 

Barron #4:  Wickard v. Filburn is included because the Court “sinned by adopting an expansive view of the commerce power. … Wickard was the key precedent for the decision upholding the constitutionality of the 1964 Civil Rights Act…. The Dirty Dozen never faces up to that obvious problem.”

Facts:  Under Wickard v. Filburn, the commerce power is not merely “expansive”; it is incoherent and all-encompassing.  Article I, section 8, of the Constitution authorizes Congress to regulate interstate commerce, not to restrict activities that are neither interstate nor commercial.  Mr. Filburn’s crops were grown within a single state for consumption by his family and farm animals.  He didn’t buy the crops; he didn’t sell the crops; they didn’t cross state lines; and his activities had no perceptible impact on interstate markets.  Yet Congress, with the Court’s approval, brazenly distended the Commerce Clause – unleashing it from the operative word “commerce” and granting to the federal government regulatory authority over virtually all manner of human conduct.

To be sure, the 1964 Civil Rights Act is where the rubber hits the road.  Our position is straightforward:  The Act has no constitutional pedigree.  It addresses private, not state actions; so it cannot be traced to the Fourteenth Amendment.  It has nothing to do with eliminating state impediments to the free flow of interstate trade; so it cannot be shoehorned into the Commerce Clause.  That said, the 1964 Civil Rights Act was an unambiguously good thing; it helped erase an unconscionable assault on human dignity.  We are glad that it happened.  We applaud its aftermath.  And we recognize that the Civil Rights Act is a settled principle of American law, not to be revisited by the courts despite its constitutional infirmities. 

Even if we are wrong about those infirmities, our position is intellectually honest – unlike the position of those who insist that, because the Civil Rights Act is beneficent, it must necessarily be constitutional.  Some activities offend the Constitution – e.g., torture – even if they yield universally acclaimed benefits – e.g., preventing a nuclear attack.  The remedy in such cases is either to amend the Constitution or acknowledge the disconnect.  In this instance, we choose the latter alternative. 

Barron  #5:  “The authors seem to be arguing in simple, consequentialist terms.  A case is badly decided if it has some bad effect in the real world.” 

Facts:  We asked 74 legal scholars to name the post-1933 cases that had the most destructive effect on law and public policy – either by expanding government powers beyond those that are constitutionally authorized, or imperiling individual liberties that are constitutionally protected.  Further, we stipulated (pp. 5-6) that “worst” cases must have led to anti-liberty outcomes and been based on erroneous legal reasoning.  Accordingly, consequentialism played a role; but we did not presume, as Professor Barron asserts, “a case is badly decided if it has some bad effect.”  Not a single case in our book was selected solely because it had a bad effect.  Unless the rationale for the case was legally defective, we did not include the case among The Dirty Dozen.  “Bad effect” and “badly decided” were two separate and distinct criteria.  Each selected case had to qualify on both grounds.  Indeed, the purpose of our book was to dissect each case and demonstrate not only its bad effect, but also how and why it was badly decided. 

Barron #6:  The authors’ criterion for judicial intervention is based on “libertarianism, which does not even begin to address the problem of private power.”

Facts:  This allegation by Professor Barron reflects a profound misunderstanding about the nature and purpose of the Constitution.  The Constitution is not a criminal or civil code that private citizens must obey.  Rather, the Constitution has two primary objectives: to secure individual rights, and to limit the power of government.  It’s not private people or private power that the Constitution constrains.  Instead, it’s government officials and government power.  The Constitution is first and foremost a code of conduct for the legislative, executive, and judicial branches of government.  Our “libertarian” theory of judicial intervention doesn’t speak to private power because the Constitution doesn’t speak to private power. 

Barron #7:  “You still need a sorting theory.  When should judges, while engaging, defer and when should they act?”

Fact:  We have a sorting theory, which we document at some length (pp. 215-24).  Members of the Court must have an allegiance to the text of the Constitution.  If the original meaning of the text is unambiguous, textualists adopt that meaning unless it leads to absurd consequences.  If the meaning is blurred, textualists must interpret the words in accordance with an originalist theory of our founding documents – in particular, a respect for federalism, separation of powers, limited government, and individual rights (both enumerated and unenumerated).  Those were the principles that the Framers applied in crafting the Constitution.  By comparison, members of the Court who subscribe to an anchor-less “living Constitution” will be disposed to use their own preferences and ideology as a basis for their decisions – thereby negating the written documents that have sustained a free society for more than two centuries.