Topic: Political Philosophy

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.

 

Freedom in China

As the world media get ready to focus on China for two weeks, there’s lots of discussion of human rights. Will Beijing censor the media and the athletes? Should President Bush attend? Should he meet with Chinese dissidents? Should he raise human rights issues with Chinese leaders?

In all this discussion, we may forget how much progress China has made in the past generation. From 1949 to the death of Mao Tse-tung or the rise of Deng Xiao-ping, there was no discussion of “human rights in China.” China was a totalitarian state, Red China, or Communist China to the less polemical. Its citizens had no rights. And the Western media had very little access to the country, so they couldn’t report any stories about human rights abuses. Were 65 million people killed by Mao’s regime, or something more or less? Questions of “human rights” pale in such a system.

On the eve of the Olympics, it’s refreshing to read a very thorough article in the New York Times titled “Despite Flaws, Rights in China Have Expanded.” Howard W. French reports:

Political change, however gradual and inconsistent, has made China a significantly more open place for average people than it was a generation ago.

Much remains unfree here. The rights of public expression and assembly are sharply limited; minorities, especially in Tibet and Xinjiang Province, are repressed; and the party exercises a nearly complete monopoly on political decision making.

But Chinese people also increasingly live where they want to live. They travel abroad in ever larger numbers. Property rights have found broader support in the courts. Within well-defined limits, people also enjoy the fruits of the technological revolution, from cellphones to the Internet, and can communicate or find information with an ease that has few parallels in authoritarian countries of the past.

It’s still difficult to challenge the party-state directly. Organizing even a study group, much less a tiny political party, can land you in jail.

On the other hand, the definition of what constitutes a political challenge has changed. Individuals are far less likely to run afoul of a system that no longer demands conformity in political views or personal lifestyles.

I’ve made the point in recent writings that wealth gives people a kind of freedom–more options for how to live their lives. French sees that dynamic at work in China:

The speeches of China’s leaders, with their gray imagery and paternalistic phrasings, have changed relatively little, emphasizing unity, harmony and economic growth under party rule. The reality on the ground, though, has been transformed, partly because a more dynamic economy necessitates a more dynamic society, partly because money gives people options they did not have when they were poor.

Way back in 1979, David Ramsay Steele of the Libertarian Alliance in Great Britain wrote about the changes beginning in China. He quoted authors in the official Beijing Review who were explaining that China would adopt the good aspects of the West–technology, innovation, entrepreneurship–without adopting its liberal values. “We should do better than the Japanese,” the authors wrote. “They have learnt from the United States not only computer science but also strip-tease. For us it is a matter of acquiring the best of the developed capitalist countries while rejecting their philosophy.” But, Steele replied, countries like China have a choice. “You play the game of catallaxy, or you do not play it. If you do not play it, you remain wretched. But if you play it, you must play it. You want computer science? Then you have to put up with striptease.”

I don’t know if China has striptease yet. But it has definitely discovered that Western habits accompany Western technology. After protests of a mysterious death in a rural county, the authorities tried to suppress news of the controversy. “But people wielding video cameras uploaded material to YouTube, and some Chinese journalists disputed official accounts that the riots had been put down peacefully.”

Traditionally, authoritarian regimes have been happy to distribute televisions widely, so that the state can disseminate its propaganda to every household. But with the loosening of controls in China and the increasing wealth, many citizens are buying satellite TVs, and that creates an entirely different dynamic:

For others, the impact of information about other countries has been just as great. He Weifang, a professor of law at Peking University, said that before the economic reform era began in 1979, the country was much like North Korea, where people were indoctrinated to believe that Chinese were the better off than people anywhere else.

“Today, even the farmers in remote areas have satellite TVs,” Mr. He said. “So whenever they see an election, such as the one held in Pakistan recently, they may wonder why, even though we have approximately the same economic conditions, they can elect their top leaders, and we can’t even vote for the leader of a small county. I think a consciousness of political rights has increased more than anything.”

And finally, French notes, even the legal system is groping toward the rule of law, including the enforcement of property and contract:

Even China’s party-run legal system is a fulcrum for experimentation, though in an ambiguous way that highlights the uncertainties in the country’s transition.

Judges do not have the power to rule independently in China. Yet the country now has 165,000 registered lawyers, a five-fold increase since 1990, and average people have hired them to press for enforcement of rights inscribed in the Chinese Constitution. The courts today sometimes defend property rights and business contracts even when powerful state interests are on the other side.

The changes in China over the past generation are the greatest story in the world–more than a billion people brought from totalitarianism to a largely capitalist economic system that is eroding the continuing authoritarianism of the political system.

When I read a much less insightful view of China’s development in the Washington Post Sports section–“The largest nation on earth has unexpectedly evolved to the point where it is capitalist in every practical sense, including an entrenched elite every bit as ruthless as America’s robber barons.”–I deeply regret that Howard W. French has just left the New York Times to take up a position teaching journalism. But you can still find his writings on his website, such as this recognition that, as libertarians often say, “capitalism is what happens when you let people alone”: “China’s example shows what kinds of remarkable results can follow when governments stop committing colossal blunders and grossly shackling or preying upon their own people… . This government has stopped making the massive, brutal blunders it committed in the 20th century, which killed or stunted the lives of huge numbers of its citizens. What it needs most now is to get out of the way of ideas and enterprise, and to learn, bit by bit, the virtues of trust.”

For another thoughtful view of China’s evolution, see this week’s Economist.

The Mysterious Mr. Obama

Yesterday, one minute apart, I received two email messages that sort of sum up the mixed libertarian views on Barack Obama. First, an old friend forwarded an AP story in which Obama promised to repeal any executive orders that “trample on liberty”:

Barack Obama told House Democrats on Tuesday that as president he would order his attorney general to scour White House executive orders and expunge any that “trample on liberty,” several lawmakers said… .

The Illinois senator “talked about how his attorney general is to review every executive order and immediately eliminate those that trample on liberty,” said Rep. Jerrold Nadler, D-N.Y.

Good stuff! Let’s just hope he realizes that Bush isn’t the first president to issue executive orders that “trample on liberty.” It was President Bill Clinton’s aide, Paul Begala, who drooled at the notion of using executive orders to do what Congress wouldn’t go along with: “Stroke of the pen. Law of the land. Kinda cool.” For a look at some pre-Bush executive orders that might warrant elimination, Obama’s attorney general might consult “Executive Orders and National Emergencies: How Presidents Have Come to ‘Run the Country’ by Usurping Legislative Power,” published by Cato in 1999. There he can find information about Clinton orders that nationalized land, sought to reverse Supreme Court rulings, rewrote the rules of federalism, and waged war in Yugoslavia.

One minute after receiving that story, I received another Obama analysis in my inbox. That one was an editorial from Investor’s Business Daily titled “Barack Obama’s Stealth Socialism.” The editorial noted Obama’s repeated use of the sneaky phrase “economic justice” and cited a laundry list of spending programs and regulations that Obama supports. It’s a pretty scary list for a libertarian, from national health insurance and penalties for companies that do business internationally to huge new federal burdens on employers.

To the extent that some libertarians look favorably on Obama, I think it’s mostly negative: Bush and the Republican Congress have been so bad that any alternative looks good. But occasionally Obama does indeed say something almost libertarian. And then he promises that he’s the guy who can build a consensus to actually implement Hillary Clinton’s policy agenda, and libertarians are reminded of why they rarely vote Democratic. In Obama’s case, of course, the confusion is created by his lack of much public record. He was a senator for only two years before he began running for president full-time. Unlike candidates such as Clinton and John McCain, he doesn’t have decades’ worth of votes and statements to review. So we parse the substantive moments amid his soaring rhetoric and try to determine if he’s “the most liberal member of the Senate,” “more to the left than the announced socialist in the United States Senate, Bernie Sanders of Vermont,” a “a pro-growth, free-market guy,” or even a “left libertarian.”

Sounds Familiar?

“[The speaker] urged the students to study in order to serve the people and those in need, and not to fill their pockets,” reported the media.

Sound familiar? No, it wasn’t Barack Obama urging students to pursue “collective service” instead of chasing after a “big house and nice suits,” but Aleida Guevara, the daughter of the infamous Che Guevara, talking to Paraguayan students yesterday.

Guevara went on to say that “Each of us isn’t worth anything. The processes belong to the people, and not to any individual man.”

That’s a good audition for the commencement address at Wesleyan University next year.

Pushing Help on Flood Victims

In a recent Cato@Liberty post that I’m particularly proud of (because it’s about TV! - “TV is Great”), I pointed out an example where a midwestern farming couple victimized by the recent flooding weren’t expecting help from the government.

Said Barb Boyer:

We’ve always lived our life that we’re responsible for our own choices, our own destiny. And we chose not to carry the flood insurance. That was our responsibility. …[O]f course, we are going to need help, but do I expect it? No. We’ll start over. That’s all I know right now.

Well, it looks like they might get help from the government anyway. Introduced in the House on Wednesday, H.R. 6587 would provide various forms of tax relief for the victims of the recent harsh weather in the Midwest.

When tax time comes, the Boyers and their neighbors will be presented with lots of ways to reduce their tax liability for having been in the area where the storms and flooding hit — nevermind that they didn’t insure for it. They’d be fools to refuse the savings.

Libertarians often talk about the possibility of private charity picking up the slack for reduced government welfare. Statists scoff at such notions, pointing to the weakness of local community and cultural institutions today. The charge rings true, but the reason, if this is the case, is not that the American character is weak and that it casually ceded responsibility to government. It’s because government largesse is an insidious, attacking organism that goes right for the fibers and joints of civil society to draw down their strength and make them arthritic.

My sympathies go to victims of the flooding. I would go to my pocket to help them. But our representatives are in our pockets already, taking not just tax money, but the sense of sympathy and shared purpose that would bind us to our fellow Americans.

The Mechanics of Government Gaining Ground

Over at the new WashingtonWatch.com blog, I’ve posted a piece illustrating the simple modern mechanics of something Jefferson warned against: “The natural progress of things is for liberty to yield and government to gain ground.”

Congress is considering a bill to cancel the scheduled termination of a commission that studies minority veterans issues. It would only cost three cents per U.S. family to keep it going, but it’s one of nearly 10,000 bills of all different stripes pending in the current Congress.

Did minority veterans fight for a country where each group looks to the government for special treatment or a little cut of the loot from taxpayers? Or for the country where the people’s spirits are still free?