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The Mises Review -- Fall 1996 The Mises Review

A Quarterly Review of Books, by David Gordon

The Return of Anti-Imperialism
Eric A. Nordlinger
Princeton University Press, 1995, x + 335 pgs.

Right by Half
David Frum
Basic Books, 1996, xv + 208 pgs.

Bill-of-Rights Despotism
Marshall L. De Rosa
Transaction Publishers, 1996, viii + 216 pgs.

Treaty? What Treaty?
Bruce Ackerman and David Golove
Harvard University Press, 1995, 129 pgs.

Delusions of a Convert
Michael Lind
The Free Press, 1996, viii + 295 pgs.

Recognizing Brilliance
Roger Backhouse
History of Economic Thought Newsletter Volume 56 (Summer 1996): 16-21


Eric A. Nordlinger
Princeton University Press, 1995, x + 335 pgs.

Ever since World War II, the traditional American foreign policy of nonintervention in foreign affairs has had a bad press. Isolationism, it is alleged, helped cause the Second World War, with all its appalling destruction and massacres. Fortunately, America learned her lesson during the war; and, when the battle with the Axis came to an end, we were prepared for a new struggle. Only the repudiation of isolationism enabled the United States to prosecute the Cold War to a successful conclusion.

Eric Nordlinger, a distinguished political scientist who unfortunately died shortly before Isolationism Reconfigured appeared, has braved the perils of nonconformity. He advocates what he terms a "national" strategy for the United States, which largely, though not entirely, corresponds with traditional isolationism. In making his case, he challenges his opponents on their supposedly strongest ground, the onset of World War II. Not content with this singular act of iconoclasm, he also questions the necessity of the Cold War.

The basic argument for Nordlinger's brand of isolationism rests on a simple premise, combined with a fact of manifest importance. (Nordlinger, I regret to say, presents his simple case in a needlessly complicated and jargon-filled style; but this is by the way.)

Nordlinger's starting point is that a national security strategy should be judged "by way of two encompassing questions. How do the alternative security strategies compare in protecting America's security, its highest political, material, and survival values, from any and all external threats. . . how do they stack up in promoting America's extrasecurity values at home and abroad, material and ideal, political and economic" (p. 3)?

What happens if the answers to these two queries conflict? Suppose, for example, that an isolationist strategy best protected America's security, but some other scheme did better at promoting American extrasecurity goals. One might think the answer obvious; since security is of the first importance, the strategy that most successfully promotes it ought to be adopted.

But are no tradeoffs to be allowed? Does any amount of the security goal outweigh any amount of the extrasecurity goals? What if a strategy were slightly less good than another in protecting security, but much better at promoting nonsecurity goals? Must it without further thought be cast aside? Unfortunately, Nordlinger does not address issues of this sort. Fortunately, this omission does not hurt his case. He maintains that an isolationist strategy (at least taken with his modifications) best promotes both sets of values.

Another aspect of Nordlinger's starting point requires attention. Although he phrases his questions in a general form, he addresses himself exclusively to the American case. He is not concerned to argue that for any nation, anywhere, an isolationist strategy is best. Rather, his contention is that isolation is the indicated course for the United States.

Though limited in this way, our author's thesis is not the narrowest possible. Not only does he think that isolation is the best course for the United States now; he<%-4> adheres to the traditional view that isolation served us well during the period 1789 1917. More controversially, he does not think that the abandonment of isolation by Woodrow Wilson, continued by U.S. involvement in World War II and the Cold War, was a necessary, if distasteful, interruption of our customary foreign policy. In the style of revisionists such as Charles A. Beard and Harry Elmer Barnes, he supports isolation during these events as well. And, nothing if not consistent, Nordlinger has no use for Operation Desert Storm against Saddam Hussein.

During most of the long historical period that Nordlinger covers, one fact has remained constant; and this is the linchpin of his case for American isolation. Because of our geographical position, natural resources, and military strength, the United States since the early 19th century has always been in a position to resist invasion without difficulty. To do so of course requires a strong defense capacity: Nordlinger does not argue his case on pacifist grounds. But, given military technology that equals or surpasses that of rivals, the advantage lies naturally with the defense.

"A national strategy does not entail any less of a commitment to research and development than strategic internationalism," he writes. "Without it there is no knowing how science and technology can make for yet greater security, and it is the only way to guard against others forging beyond us in ways that would detract from our security" (p. 49).

One advantage of isolation should excite little controversy. It is much cheaper than a policy of "entangling alliances," as Thomas Jefferson aptly termed interventionism. Like Earl Ravenal, one of the few "defense intellectuals" to support isolation, Nordlinger maintains that the drastic cuts in the defense budget under isolation would redound greatly to the advantage of our economy, through lowering the deficit and releasing funds for private spending and investment.

But this of course does not suffice to make the case for isolation, as opponents of the policy will be quick to point out. How does Nordlinger defend his principal thesis, viz., that isolation can better promote American security than interventionism? He does so, in large part, by an ingenious reversal of an influential argument for intervention of worldwide scope.

According to the view Nordlinger combats, a state's security depends on its credibility. The world of nations is one of constant struggle for power; and to maintain its existence amidst this strife, a country must acquire a reputation for resolve. If it is known to fulfill scrupulously its commitments, other nations will be deterred from threat or invasion.

"The more frequently the United States undertakes and fulfills defensive obligations," proponents of this view allege, "the greater its current credibility. Insofar as the fulfillment of defense commitments involves major efforts and great sacrifices, the other side will be all the more convinced of our high resolve" (p. 116).

As Nordlinger notes, the distinguished economist Thomas Schelling has probably been the most influential supporter of this argument. He went so far as to claim "that most of the globe is central to our security for subjective, political reasons" (p. 117).

To enable a state to secure credibility, Schelling and other theorists have devised elaborate models detailing how states should threaten and respond to threats. Nordlinger confronts the models with an elementary fact. The intentions of others are very difficult to gauge. But the strategic minuets of move and countermove devised by defense specialists depend on accurate perceptions of intention: if what was intended as a gesture of conciliation is judged a threat, e.g., trouble obviously looms. Why then engage in such futile exercises?

One might in part reply to Nordlinger that not all strategic analysis does in fact depend on knowledge of intention. Some strategies dominate others; i.e., following them makes one better off regardless of what others do. But in the main our author is clearly right. To judge that because a nation has kept its commitments, it will be likely to do so in the future is precisely to assess intention.

If, though, we take Nordlinger's advice and abstain from the strategic duels of Schelling and company, does not disaster threaten? If we do not make commitments, we shall not obtain credibility; and then other nations will not hesitate to threaten us. Here exactly lies the point at which Nordlinger executes his remarkable reversal of the credibility argument.

It is not, he says, by constant commitments that one best builds credibility. Quite the contrary, a nation that maintains a strong defense capability but refrains from foreign entanglements has made its intentions crystal clear. Since, almost by definition, a nation places extreme value on its territorial integrity, no problem exists of convincing others that it will fight if attacked. And there is no need to fight for others in order to enhance a credibility that was not first laid on the line.

An isolationist, then, is not a player who always concedes the point to an opponent, but rather someone who does not play the game of international power politics at all. In making this distinction, Nordlinger deftly avoids a common accusation against isolationists: they are, it is charged, appeasers who ignore the lessons of Munich.

Not at all. Isolation, to repeat, entails disengagement from world politics, not participation in them in a particular fashion. "It was Britain and France, not a disengaged America, that pressured Czechoslovakia to concede much of its territory to Hitler at Munich. Without being at all bellicose, isolationism does not involve significant concessions to opponents, with whom there are few interactions and few political-military treaties and agreements" (p. 5).

With this defense, though, our author appears to have walked directly into the line of fire. Surely World War II suffices by itself to cripple Nordlinger's thesis. Had America not become involved in the war, would we not have faced an invincible foe, in control of all of Europe and poised to strike?

Nordlinger rises to the challenge. No matter how powerful a Nazi Germany triumphant in Europe, it is extremely doubtful that it would have been in a position to invade America. Members of the America First Committee, the leading organization that opposed the United States' involvement in the war, "were duly impressed with what Germany could not do. Despite its control of most of Europe by 1940 it was still unable to breach the narrow English Channel to attack England" (p. 56).

And it is eminently doubtful that America's entry into the war was needed to prevent German conquest of Europe. Relying on an argument by the Yale political scientist Bruce Russett, Nordlinger maintains that Hitler's gamble to seize control of Europe had failed well before Pearl Harbor. The Luftwaffe could not defeat the British Royal Air Force; and "by late 1941 Germany's early advantages [in the invasion of Russia] had lost their sway: outright Soviet superiority in troops, tanks, and planes became dominant" (p. 58).

Opponents of the America First Committee charged that its purpose was to further the cause of fascism; but, Nordlinger insists, this is a baseless canard. "The great majority of isolationists held no brief for Nazi Germany. . . . Senator Robert A. Taft detested every one of the German government's actions after Hitler assumed power" (p. 188). Quite the contrary, the isolationist case rested on a careful analysis of America's security needs. And, as Nordlinger abundantly shows, that case remains valid today. "America goes not abroad in search of monsters to destroy."


David Frum
Basic Books, 1996, xv + 208 pgs.

David Frum's new collection of essays and columns is like the curate's egg good in parts. He sometimes provides insightful defenses of the free market; but curious blind spots spoil the book. Frum completely fails to grasp the tension between a free economy and a militaristic foreign policy. Moreover, the merest mention of anyone to his right excites him to frenzy, a tendency he also manifested in his earlier book, Dead Right, when the same topic arose. (What will his next book be called, What's Dead?) In his assault, he evinces a remarkable capacity to misstate facts.

I begin with the latter topic, for a personal reason. Frum mentions the Mises Institute in one of his broadsides; and I naturally gravitated toward his remarks. He criticizes, through the medium of a column by Pat Buchanan in which it is cited, an article by Paul Gottfried. By careful attention to reports available to the public, Gottfried showed that several foundations have skewed the ideological direction of the right by massive grants to a favored few neoconservatives. The Old Right, which supported a noninterventionist foreign policy, has been displaced.

What is Frum's response? He does not deny the financial subventions in question. Instead, he reads the Old Right out of conservatism: "who wouldn't be 'viscerally hostile' to a capital A, capital F 'America First' policy a policy that as late as the dangerous summer and fall of 1941 denied that a Nazi-dominated Europe from Moscow to Madrid was anything the United States ought to be bothered by" (p. 61)?

The rhetoric of this passage merits analysis at some length. Frum is perfectly entitled, if he wishes, to endorse an interventionist foreign policy. But for Frum, opponents cease to exist: "who wouldn't" be hostile to the America First policy? I suggest that Frum acquaint himself with Eric Nordlinger's book, reviewed above. Do the names Charles A. Beard, Charles C. Tansill, Frederick Sanborn, and Harry Elmer Barnes mean anything to our author? Why should the works of these distinguished scholars be deemed unworthy of serious answer?

Further, the position of the America First Committee was hardly that a Nazi-dominated Europe was a matter of indifference. Quite the contrary, all the major figures of the group opposed the Third Reich and its Fuehrer. But they did not believe that involvement in the war in Europe would best serve American interests. Perhaps they were mistaken; but surely their strongly argued case merits careful attention rather than contemptuous dismissal.

Perhaps I am quibbling over a mere detail, but Frum's phrase "from Moscow to Madrid" disconcerts me. Would not the natural reading of the passage be that both Moscow and Madrid were in 1941 under Nazi control? In fact, of course, neither was. Incidentally, as long as quibbles are on the table, consider this: Keynes "went to his death caring more for the good opinion of Vanessa Bell and Lytton Strachey than that of anyone other than (just possibly) his wife" (p. 179, emphasis added). One wonders how, during World War II, Keynes managed to discover Strachey's opinion of him. Did his dead friend appear to him in a sance?

But I digress. Frum is by no means finished with those who dare to oppose his neoconservative friends. It is a "legend" that Irving Kristol "persuaded President-elect Reagan not to nominate the historian M.E. Bradford to the chairmanship of the National Endowment for the Humanities. The job was given to Kristol's friend William Bennett instead" (p. 61). You will not be surprised to learn that "the legend is false. By his own admission, Edwin Feulner of the Heritage Foundation (who never in his life had a good word to say for the Great Society) was much more instrumental than Kristol in kiboshing the Bradford appointment" (p. 62).

Once again Frum's technique repays study. The neoconservatives were not responsible for undermining Bradford's position because someone who is not one of their number had greater responsibility. The logic of Frum's statement escapes me. Has he never heard of joint causes of an effect? And Frum's account is factually as well as logically deficient. According to Mel Bradford, whose knowledge of the circumstances surrounding his nomination is perhaps comparable to Frum's, Kristol did play a major role in the affair. The anti-Bradford efforts were hardly confined to a discreet word of warning from Feulner to Reagan. Frum's neoconservative associates launched a massive smear campaign against Bradford.

And it appears that Frum shares their exemplary standards of fairness. He concedes that Bradford was "a fine mind and a graceful writer" (p. 62; permit me to assure Frum that Bradford's opinion of him was rather less exuberant). Nevertheless, it was right to deny Bradford the NEH chairmanship. He "had published essays that could reasonably be understood by an unfriendly reader to liken Abraham Lincoln to Hitler" (p. 62). Note Frum's complaint: it is not that Bradford likened Lincoln to Hitler. It is that an unfriendly reader might take him to do so! Sentence is thus to be passed on Bradford by a hanging judge.

Mel Bradford is not alone. When a paleo is in the vicinity, Frum strikes with his customary modus operandi illogical reasoning and factual inaccuracy. He finds Paul Gottfried a suitable victim. "Gottfried repeats. . . the weird allegation that he himself lost a tenured appointment at Catholic University of America because a very junior faculty member named Jerry Z. Muller told the authorities that Gottfried was 'anti-Zionist' at the behest, Gottfried believes, of Norman Podhoretz. If the story is true, the only thing more astonishing than Podhoretz's sway over the Catholic Church is Catholic University's amazingly respectful treatment of its junior faculty" (p. 62).

Note the two-step technique. Mistaken logic: the fact that an accusation has effect does not show that the accuser holds sway or is the recipient of respectful treatment. And misleading facts: Muller's criticism was only one of several voices Gottfried believes were orchestrated against him.

But I must beware myself of giving a mistaken impression. Frum's book does not consist entirely of squalid diatribes against his betters. He sometimes interrupts his abuse and defends the free market. In the book's best essay, "Not So Wild About Harry," Frum ably dissects Harry Truman's domestic policies.

Frum states forthrightly: "No American president ever proposed worse economic policies than Harry Truman. The great post-war economic boom that began in 1945 appalled and disgusted Truman, and he exerted all his political power in an attempt to shut it down. Truman wanted to impose a permanent war economy on the United States" (p. 85).

For Truman, price controls were not a (misguided) wartime emergency measure but a way of life. He responded to strikes by threatening to draft strikers into the army. "But the only solution to the inflation and shortages problem that Truman could imagine was to redouble the policies that had created the problem in the first place: easy money and price controls" (p. 86). There could be no better illustration of Mises's point that government intervention in the free market requires ever further intervention in a frantic effort to stave off failure. (Frum relies on Alonzo Hamby's 1995 biography of Truman for his data.)

The unwary reader may jump to the conclusion that Frum holds Truman in contempt. Quite the contrary, his verdict on Truman is mixed. In spite of his failings domestically, he scored "magnificent successes" in foreign affairs: he "saved Western Europe from starvation and communism, . . . imposed democratic institutions in Germany and Japan, and . . . won the Korean War" (p. 85; one would enjoy hearing Douglas MacArthur's comment on this last achievement).

For Frum, intervention in the domestic economy is an unmitigated evil; but once the magic words "foreign affairs" are mentioned, matters change entirely. Now the government becomes transformed into a Guardian Angel.

Has it ever occurred to our author that Marshall Plan Aid to Europe, which he celebrates, did not arise out of the free market? Suddenly, coercive taxation and governmental direction of the economy earn his plaudits. (For some much needed skepticism on foreign aid, Henry Hazlitt's Will Dollars Save the World? remains unsurpassed.) And drafting men to fight overseas, at the risk of their lives, in an unconstitutional "police action" under the aegis of the United Nations is not my idea of a free society.

Frum is anxious to import the blessings of militarism to his native country, Canada. Since, "as de Gaulle observed, states are rather inhuman monsters," Canada must acquire the means for independent action atomic weapons (p. 163). Absent these, Canada is doomed to be a ward of her nuclear allies.

In order to act effectively in a world where "it's every state for itself," the necessary measures must be taken. No doubt nuclear proliferation is a problem, but Canada can do nothing to halt this. To arms! Frum is no doubt right that a state without nuclear weapons is apt to be at a disadvantage in a struggle with a state that possesses them. But why Canada need engage in this sort of battle at all, Frum never discloses.

I have sometimes been accused (always unfairly) of displaying excessive hostility to some of the books I review. Even were I to try as best I can to mock David Frum (as of course is not my intention), I would not be able to match his own words. He remarks that Adam Smith "seems to have been a singularly unamusing man." In support of this assessment, he quotes a remark of Thomas Carlyle that, incredibly, he interprets to mean that Carlyle thought Smith a dull dinner companion (p. 171). If Frum will take the trouble to look up the dates of Smith's death and Carlyle's birth, he will, I venture to suggest, discover a slight problem with his interpretation.


Marshall L. De Rosa
Transaction Publishers, 1996, viii + 216 pgs.

Professor Marshall De Rosa's excellent book calls attention to a paradox in recent constitutional law. The Ninth Amendment to the U.S. Constitution provides: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." One might at first sight read the Amendment, together with the Tenth, as a limit to the power of the national government.

This, indeed, is the way De Rosa thinks the amendment should be read; and it is, in his view, the understanding intended by its authors. The Constitution did not establish a centralized state, under the total dominance of the federal government. Quite the contrary, the states retained a large measure of autonomy, and the document would never had been ratified without appropriate guarantees of state sovereignty. "Until the 1960s, the Ninth Amendment served as a precautionary reminder that there were limits to the national government's powers that were not explicitly stated in the Constitution and these unenumerated rights were, indeed, retained by the people in their respective states" (p. 11).

The matter appears straightforward; what, then, is the paradox to which I initially referred? The problem arises from the fact that the Fourteenth Amendment has been held by the Supreme Court to apply the Ninth Amendment to the States. "For the past three decades the significance of the Ninth Amendment has incrementally increased due to its utility in limiting governmental power, especially state power" (p. 11).

De Rosa locates another potential trouble area for states rights in the "privileges and immunities" clause. This forbids a state from denying the privileges and immunities of its citizens to citizens of other states present within its borders. In the crucial early case that established the standard interpretation of this clause, Corfield v. Coryell (1823), Justice Bushrod Washington "stipulated that the purpose of the privileges and immunities clause is not to establish a national standard of rights for all Americans, but to better 'secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union'" (p. 11, citing Washington's opinion). By the way, Bushrod Washington was George Washington's nephew.

To grasp the point of Washington's opinion, one must take hold of a simple distinction. The clause prevents a state from restricting the privileges and immunities of non-citizens; it does not require a state to enforce a particular set of rights. Put bluntly, a state is perfectly free to enact a very restricted set of rights, so long as it does not discriminate between its own citizens and citizens of other states.

Unfortunately, from the author's point of view, there is a competing interpretation of the clause, most clearly stated by Justice Bradley in his dissent in the Slaughter-House Cases (1873). "According to Justice Bradley, the privileges and immunities clause of Article IV inherently incorporates the U.S. Bill of Rights, thereby making them applicable to the states; the states must not only confer these rights on citizens from other states, but also on their own citizens and non-citizens within their jurisdictions" (p. 52).

The Supreme Court has not (yet) adopted this construal; but should it do so, state sovereignty will be struck a devastating blow. De Rosa speculates that on this understanding, Congress could establish national abortion rights even if Roe v. Wade were overturned by the Court.

The pattern De Rosa has so well described occurs again and again in current constitutional law: the right of the citizens of a state to determine their own affairs constantly clashes with judicial requirements that states meet a fixed standard of rights.

A crucial instance of this battle concerns the Second Amendment. This forbids the federal government from infringing on the right to keep and bear arms; but, as our author persuasively argues, it leaves the states perfectly free to do so. As one might expect, De Rosa's traditional understanding of the Second Amendment no longer prevails on the federal bench. "[T]he [1939] Miller decision essentially . . . subordinat[ed] the Second Amendment to national policy objectives, specifically as those objectives pertain to national politics, and not states' rights" (p. 136). Our author argues strongly that the Miller decision and its progeny are mistaken (but I think it might also have been useful for him to address Michael Curtis's argument that the Fourteenth Amendment applies the restrictions of the Second Amendment to the states).

Our author's incisive analysis raises an essential issue of political theory. Suppose one believes that individuals should have the right to keep and bear arms. Should one support federal enforcement of this right, or should one defer to the rights of the states, at the risk that states may restrict individual rights?

An exactly similar issue arises in disputes over economic regulations. Suppose that one supports laissez-faire capitalism. Should one then, like Richard Epstein, endorse the revival of "Lochner-era jurisprudence"? In Lochner and similar cases, the Supreme Court used "substantive due process" to prevent states from interference with property rights. What is one to think of this?

For our author, the matter admits of no doubt: the judiciary should not become the instrument of advocates of a particular political theory to impose their system on the people of the states. De Rosa supports his point of view in greatest detail in what to my mind is his book's finest chapter, "Contrasting Theories on the Articulation of Unenumerated Rights." The chapter assesses the views of two diametrically opposed thinkers: M.E. Bradford, a literary scholar and authority on American history, and Ronald Dworkin, perhaps the leading legal theorist of "activist" jurisprudence.

For Bradford, "the U.S. Constitution was produced by delegates determined to complement their respective state governments, not to obliterate them" (p. 153). The Constitution does not endeavor directly to promote political ends: instead, it leaves the people of the states free to pursue their own ends, within the confines of a strict set of legal procedures.

Following the British political philosopher Michael Oakeshott, Bradford termed a regime of this sort a nomocratic order. This is to be contrasted with a teleocratic order, which aims to promote a given set of goals, to which legal procedures are strictly subordinate.

Bradford saw in teleocratic regimes the danger of despotism; and the position of Ronald Dworkin, whom our author selects as an example of a teleocratic theorist, goes far to show that Bradford (as usual) was perfectly right. Dworkin makes the text of the Constitution a mere tool to enforce a so-called "right to equal respect." Equal respect, in his sense, by no means requires equal treatment. In some cases, it precludes it, all of course as decided by Dworkin's fiat.

On only one minor detail do I differ with De Rosa's brilliant account of Bradford. When Bradford described the "comic action" of the Constitutional Convention, he did not mean, I think, that "Madison should have known better, especially when the intended or unintended effects of his actions could have been disastrous" (p. 184 n. 14). Rather, he meant that the Convention's story ended happily, despite Madison's initial problem of adjustment. Bradford is using "comic" in the sense of Northrop Frye's great Anatomy of Criticism, a work by which he was much influenced.

De Rosa has described two sharply different ways of understanding the Constitution, and forcefully argued for the view he thinks correct. Granted that he is right, the question arises: how did strict adherence to the Constitution's text come to be replaced by what he terms "creative jurisprudence"?

Our author ascribes a large share of the blame to the great American legal scholar Roscoe Pound, who vastly influenced the legal profession in the 1920s and 30s. A proponent of "sociological jurisprudence," Pound spurned attempts to insulate legal texts from social trends. Instead, the jurist should act as an "engineer" to mold society to the ends he thinks proper. "Mechanical jurisprudence" (quite close to what Bradford meant by a nomocratic order) is to be rejected.

Pound's unrivaled erudition gained him wide respect among law professors and judges; and his contention that jurists should construct legal history in a way calculated to put into practice their social goals soon, unfortunately, found many takers. More specifically, Pound's introduction to Bennett Patterson's The Forgotten Ninth Amendment helped lead to the new view of the Ninth Amendment we discussed at the outset.

De Rosa's book is the product of wide scholarship and discerning judgment. It contains many gems I have not commented on here: e.g., the illuminating account of Dred Scott (pp. 42 46); the criticism of Graham Walker's moral realism (pp. 185 86 n. 40); and the unusual application of Karl Popper's phrase, "problem of demarcation" (pp. 103, 109 n. 56). Anyone interested in constitutional law will find the book of major value.


Bruce Ackerman and David Golove
Harvard University Press, 1995, 129 pgs.

The authors of Is NAFTA Constitutional? call attention to a striking absence in the heated public debate over the Nafta agreement. The measure secured the approval of both Houses of Congress, albeit with considerable arm-twisting from the White House. But the Constitution on its face mandates another procedure for agreements of this sort.

The "real battle over Nafta was in the House. But there is a puzzle here, obvious to any reader of the constitutional text. The President, the Framers assure us, 'shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators concur.' Whatever happened to the treaty clause" (p. 1, footnote numbers omitted)?

To call this, as our authors do, a "puzzle" is an understatement. Nafta is an important international agreement, surely a treaty if anything is. The Constitution requires that two-thirds of the Senate approve a treaty. Nafta did not obtain the necessary two-thirds; and the vote in the House had no constitutional standing. Yet very few opponents of the measure even remarked on this blatant violation of the Constitution.

I digress to note that one critic did see the issue. With his customary acuity, Murray Rothbard pointed out: "Nafta is called a trade agreement so that it can avoid the constitutional requirement of approval by two-thirds of the Senate" (Murray N. Rothbard, Making Economic Sense, p. 307).

Ackerman and Golove make clear that much more than a procedural technicality is at stake. The two-thirds clause was carefully inserted into the text of the Constitution in order to protect the rights of the states. A treaty, even one that commanded majority support within the country, could not take effect in the face of opposition from a substantial number of states.

As George Washington observed: "[I]t is well known that . . . the smaller States were admitted to an equal representation in the Senate with the larger States . . . for on the equal participation of those powers the sovereignty and political safety of the smaller States was deemed essentially to depend" (p. 12).

The authors state, and document to the hilt, that "Washington's defense of the senatorial monopoly expressed the overwhelming constitutional consensus for the next century and a half" (p. 12, footnote number omitted). Sometimes, indeed, the President acted independently of the Senate in international affairs; but never before the New Deal did that modern monstrosity, the "congressional executive agreement" emerge. Further, unilateral acts of the President could not generate binding international commitments.

Even so aggressive a president in foreign affairs as Theodore Roosevelt knew full well the limits of his independence. When he put into effect, without Senate approval, an executive agreement that placed Santo Domingo under American receivership, he did not contend that his action had the force of international law. On the contrary, it would lapse when he left office. "Roosevelt could give his own word to Santo Domingo, but he did not think he could bind the next President, let alone the United States" (pp. 1 20).

As even Macaulay's schoolboy knows, Franklin Roosevelt had a near pathological aversion to Constitutional government. It was hardly likely that a president who sought to undermine the Supreme Court for daring to stand in the way of the New Deal would be scrupulous in observing precedent in foreign relations.

"The New Deal could not succeed at home without revolutionizing economic policy-making abroad," the authors write. "The new Administration wasted no time implementing an expanded conception of executive authority to make binding international commitments in the name of the United States" (p. 45).

In particular, Roosevelt claimed unprecedented authority to revise tariff rates as he wished. (Incidentally, our authors, who are uncritical partisans of the New Order, never fail to describe Roosevelt's actions in the most favorable possible way. They note, e.g., that the World Monetary and Economic Conference "was a failure"; but they omit to mention that Roosevelt himself torpedoed the Conference in 1933 [p. 46].)

The New Deal revolutionaries had a problem on their hands. They wished to justify Roosevelt's claim to bind the United States in foreign affairs independently of the Senate; but the Constitution barred the way. What was to be done? To the New Deal intellectuals, intoxicated by the wish to "make America over," in Rexford Tugwell's words, the solution lay at hand. If Constitutional precedent imposed an obstacle, why not rewrite history?

Eminent legal scholars, such as Edward Corwin and Wallace McClure, were quick to provide the New Deal with what it desired. McClure, in particular, assumed a leading role in the new "scholarship."

McClure "was not content to establish that both Houses of Congress could substitute for the Senate in ratifying presidential initiatives. He contended that the President could bind the nation unilaterally on any matter, 'regardless of congressional approval or at least if Congress does not by law dissent'" (pp. 67 68, quoting McClure; footnote numbers omitted).

To make their case, McClure and those like-minded piled up instance after instance of independent presidential action; these, they averred, showed that the customary understanding of the treaty clause was in error.

Our authors are ardent partisans of the New Deal and the contemporary abrogation of the treaty clause. But they are far from endorsing as correct the historical account of McClure and his fellow engags. Quite the contrary, much of the book consists of a detailed refutation of the case brought forward by the New Dealers. To claim that the new doctrine, under which executive agreements were interchangeable with treaties in legal force, arises continuously from past precedent is a modernist myth. In an effort to make their conclusion more palatable, Corwin and McClure distorted history.

Their Orwellian efforts to revise history did not go unchallenged; and our authors pay well-deserved tribute to Edwin Borchard, a Yale University law professor who led the counterattack. "His sharp polemics parried his opponents' claims at every point. . . . He vigorously disputed his opponents' history, charging that they had concealed their radical break with a constitutional tradition that had served the nation well" (p. 72).

Ackerman and Golove should have mentioned, though, that Borchard's defense of the traditional view of the treaty clause formed part of a large scale assault on interventionist foreign policy. Borchard, a protégé of the great John Bassett Moore, the foremost early 20th-century American authority on international law, viewed himself as the defender of tradition and legality against revolution.

And this raises a crucial issue. If Borchard had the better of the argument, why did the newfangled distortions come to prevail? As our authors show, the 1940s was the crucial decade in which the new paradigm displaced sound doctrine. According to a prevailing legend at that time, the Senate's refusal to approve the Treaty of Versailles and, with it, American entry into the League of Nations, led to the rise of Hitler and World War II. A minority of the Senate must never again, it was held, be allowed to block the creation of a new world order.

Here I part company with our authors. On their account, public opinion toward the end of World War II demanded that the Senate relinquish its prerogative, in order to avoid the disaster of another retreat to isolation. Faced with mounting public pressure, and the threat of a constitutional amendment to abolish the treaty clause, the Senate wisely did not insist on its privileges. Instead, the Senate accepted a new arrangement, brought to perfection under Harry Truman.

Under the new dispensation, the president is free to create binding international agreements, with the consent of a majority of both Houses of Congress. In recent years, the revised system has given us the glories of Nafta and the World Trade Organization. Who could be so crass as to insist on the literal text of the Constitution, faced with such stellar results?

To my mind, the authors offer a useful account of the de facto abolition of the treaty clause in the post-World War II years. But their evaluation of the process is something else again. For one thing, they adopt, in a completely unscholarly way, the legend that the Senate's rejection of Versailles led straight to Hitler and World War II.

Since the iniquities of the treaty were the most popular plank of Hitler's party in its rise to power, it is not at once clear why U.S. adherence to the treaty would have stopped Hitler. Further, the authors' account of the Senate's alleged shortsighted behavior relies uncritically on the work of D.F. Fleming, an unbalanced historian for whom the League of Nations was the veritable Second Coming.

So far as popular pressure against the treaty clause is concerned, our authors ignore the extent to which this was the product of wartime propaganda and hysteria. The widespread popular support during the 1950s for the Bricker Amendment to prevent treaties from extending the scope of federal power beyond the explicit delegation of the Constitution shows that the American people were not so keen for the blessings of internationalism as our authors imagine.

Our authors do discuss the Bricker Amendment, but interpret the movement behind it too narrowly as concerned only with the precise Constitutional impact of treaties. In fact, it reflected widespread popular discontent with the global crusades of Roosevelt and Truman. If so, one can hardly postulate, as our authors do, a firmly entrenched popular belief that one-third plus one of the Senate must never be permitted to block the road to world government.

But suppose our authors are correct that by popular consensus, the treaty clause stands rejected. Why is not an amendment required to expunge it from the Constitution, absent which it remains in effect? To our authors, it is "formalistic" to insist on such niceties. The text of the Constitution lacks fixed meaning.

Although, as they have themselves shown so well, the Framers inserted the treaty clause to guarantee the rights of the states, it is "undemocratic" to insist on this. Instead, why not adopt a "Marshallian" reading in which the federal government can do whatever is not expressly forbidden? (To point out that this position has no relation to the actual views of John Marshall would of course itself be a case of narrow-minded formalism.)

So long as public opinion approves, our authors contend, the government may freely change the Constitution as it wishes. Popular approval is shown in what the authors term "triggering elections" (p. 85), in which the party that has drastically changed the constitution wins a large majority.

This account, which we may term the "popular spasm" theory of constitutional change, has been described in Ackerman's We the People, a second volume of which is here threatened (p. 85, n. 393). Those less enamored of the New Deal and Nafta than our authors may be inclined to treat the spasm theory with the scorn it deserves. But in calling attention to the major change in constitutional practice of which Nafta is a prime illustration, the authors perform a valuable service.


Michael Lind
The Free Press, 1996, viii + 295 pgs.

As usual, my reviews have been too generous. Although Lind's earlier work, The Next American Nation, struck me as fundamentally flawed, Lind seemed to me possessed of an interesting historical imagination. I was mistaken, unless indeed he has suffered severe damage to the higher lobes of the cortex since the earlier tome appeared. Up From Conservatism is a genuinely silly book.

Lind, once a stalwart among neo-conservatives, has abandoned the right, or, as I prefer, that simulacrum of it with which he was for a time associated. What has caused Lind's dismay with his former friends? They have been willfully blind to a dread menace.

One of the most influential organizations on the right, as Lind conceives it, is the Christian Coalition, headed by Pat Robertson. In several books, Lind claims, Robertson espouses a crude anti-Semitic conspiracy theory. Like Father Charles Coughlin of old, the Reverend Pat combines "the offices of Christian cleric and political agitator" (p. 108). Once cognizant of this peril, Lind alerted his friends.

To his stupefaction, they refused to denounce the errant minister. They defended Robertson against him! It was just this that led to the rupture of Lind's friendship with William Buckley. What was our boy to do? To him the appropriate response was blindingly obvious: he jumped ship. He published an expos of Robertson, which attracted wide attention, in the New York Review of Books. The left bade him welcome, and he now contributes regularly to all manner of leading journals for the progressively inclined.

What is one to make of all this? Lind's fear of a mass movement that adheres to weird conspiracy theories rests on an elementary fallacy. His "argument" goes something like this: (1) The Christian Coalition is influential; (2) Pat Robertson is head of the Coalition; (3) Therefore, Pat Robertson is influential; (4) Therefore all of Pat Robertson's views are influential; (5) Robertson's views are anti-Semitic; (6) Therefore, Robertson's anti-Semitic views are influential.

Step 4 of the argument does not follow from the previous steps. The Coalition's program, elaborately choreographed by Ralph Reed, a self-conscious "moderate," contains no reference to Robertson's conspiracy theories. I have yet to meet anyone who takes the details of Robertson's books seriously; as Lind himself has abundantly shown, his writings consist largely of quotations and paraphrases of works long in circulation. To have a mass anti-Semitic movement, you must obviously have someone massively propagating anti-Semitism. Mysterious references to plots hatched by international bankers do not suffice.

Lind's charge that rightwing intellectuals have ignored anti- Semitism becomes even more ludicrous when its specifics are examined. Lind shows incontrovertibly that Robertson closely paraphrased the works of Nesta Webster, a British historian with little sympathy for Jews; but Robertson's paraphrases edit out her anti-Semitic remarks (p. 105).

Perhaps the sin, in Lind's eyes, is to take Webster seriously. But why should she not be taken seriously? True enough, she had several bees in her bonnet which readers must always keep in mind. (Besides being anti-Jewish, she was also strongly anti- German, a matter about which Lind utters no reproof.) But she was a serious historian, whose works merit careful study one thinks in this connection of her introduction of the research of Augustin Cochin to English readers. Lind might find it useful to look up A.J.P. Taylor's review of her two-volume Louis XVI and Marie Antoinette, in the Manchester Guardian for April 16, 1937. Certainly she was a more reliable historian than Lind, who solemnly informs us that Lessing was a "Jewish philosopher" (p. 106). Where does he get such nonsense?

If Lind opposes Webster's conspiracy theories, it soon develops that he has a quasi-conspiracy theory of his own. And it is one that is far more ridiculous than anything she was able to conjure up. America, it seems, is in the grip of the "overclass." Of what does this nefarious group consist?

"I use the word 'overclass' to refer not to the rich in general or the educated in general, but to a specific social group that is at once an elite and a quasi-hereditary social class. The overclass is the credentialed managerial-professional elite, consisting of Americans with advanced degrees (MBAs, JDs, PhDs, MDs) and their spouses and children" (p. 34). Lind, better than any previous conspiracy theorist, has identified the true enemy. It is not the Jews, Masons, bankers, Communists, etc. it is people who are smart. After them!

Lind develops his theory on a similarly high level. Much of the educated elite favors a liberal immigration policy, in contrast with the more nativist proclivities of those who lack letters after their names. Why is this so? Lind has the answer: overclass families want cheap nannies for their children.

"Take away the elaborate moral arguments of the overclass left for immigration, and the equally elaborate economic rationales of the overclass right, and what remains is the naked economic interest in maintaining a supply of poorly paid, nonunionized foreign women whose labor permits overclass parents of all political persuasions to enjoy a lifestyle like that of the aristocrats of the past with their nannies and governesses" (p. 37). Has ever crude reductionism been carried to such absurd lengths?

Once in conversation, a friend unforgettably referred to "the worst argument of our epoch." I have a candidate for that distinction. Lind, who holds economists in contempt, thinks defenses of the free market ignore something important. "The possibility of military defeat and invasion are usually left out of discussions of economics in the United States and Britain" (p. 254). Nations "render themselves vulnerable" by becoming dependent on foreign food and resources. Supporters of free trade ignore the interplay of politics and economics, unlike such mighty strategic thinkers as Lind himself.

Lind is of course right that blockades are an important tool of modern warfare. But should we cripple our economy now in order to deal with a possible military threat whose identity our author leaves undisclosed? Who threatens us, and what measures does Lind think advisable to counter the threat? He does not tell us, but instead evokes a specter to frighten us into support for protectionism. That "dependence" in trade is a two-way affair is a matter, I suspect, undreamed of in Lind's philosophy.

I must, however, give Lind credit. He does come up with one genuinely insightful point. Commenting on the proclivity of many "conservatives" to support school vouchers, he states:

Vouchers "represent welfare-statism of the most radical kind. Not only would the federal or state governments give every eligible citizen a subsidy, based on citizenship, but the government that coercive, repressive, tyrannical government would tell citizens that the money could be spent only for a particular purpose. The very same conservatives who would denounce the idea of vouchers for health care or housing as socialism run amok have no qualms about proposing one of the most massive and expensive government entitlements ever contemplated in the United States while calling the school voucher system a 'free market approach'" (p. 245). If only Lind could sustain this level throughout!

Unfortunately, good sense and Lind are seldom conjoined. The al<%-1>leged crisis over rampant illegitimacy, particularly in the black community, does not exist. Conservatives have frightened us with a statistical illusion. "[T]here is no illegitimacy epidemic in the United States, of the sort that conservatives describe. . . . The increase in the proportion of illegitimate births in the black community is a result, not of a strikingly greater tendency in recent decades on the part of poor blacks to have more children out of wedlock, but of the striking tendency of middle-class and affluent blacks to have fewer children in wedlock" (pp. 168 69).

Suppose that Lind is correct stranger things have happened. How could his point go any way at all toward showing that there is no illegitimacy crisis? Whatever the phenomenon's cause, a high proportion of black children are illegitimate; and this prima facie is a major social problem.

Perhaps Lind will counter that he does not deny this: he wishes only to challenge the conservative dogma that curtailing the welfare state will curb illegitimacy. But he has not shown the falsity of this view either. Even if there has been no great recent tendency of poor blacks to have more and more illegitimate children, it may still be true that reductions in welfare will reduce the number of such births. Nothing that Lind says counts against this possibility.

I have, however, so far underestimated Lind. Not content with being a historian, political theorist, economist, and statistician, he is also, it appears, a theologian. Contrary to popular belief, orthodox Christianity is not pro-family. "For St. Paul . . . [i]t is preferable to be celibate than to have sex, even within marriage. The Catholic Church institutionalized this bias against married people by limiting its hierarchy to celibate priests. Catholic thinkers, moreover, counsel people from lusting after their own spouses" (p. 173).

Where to begin? Why is it "anti-family" to suppose there is a higher state than marriage? Does holding this view make one biased against married people? Why is advising against spousal lust anti-family? Mr. Lind is interested in a great many things, but he lacks the ability to deploy his thoughts in coherent argument. Everywhere what James Burnham termed "the squid-like ink of directionless thinking" is apparent.

The focus, he argues, should not be on the abstract notion of "choice," but on money and income. The person who earns more money necessarily has more "choices" on how to spend that money. A simple point: a free-market society rests on a system of property rights, not on a futile effort to maximize choices, of whatever sort. Yet who before Rothbard saw the point so clearly or so well?

Rothbard was ever alert to mistaken arguments for capitalism that, in an effort to be value free, lack a sound foundation in ethical theory. He brilliantly illustrates the fallacy of the so- called Pareto criterion, taken as the sum and substance of welfare economics, in a comment on a proposal for population control:

"A grotesque example of a 'free-market' 'expert' on efficiency slightly moderating totalitarianism was the proposal of the anti- population fanatic and distinguished economist, the late Kenneth E. Boulding. Boulding proposed the typical 'reform' of an economist. Instead of forcing every woman to be sterilized after having two babies, the government would issue each woman . . .two baby rights."

The mother could have two babies, or if she wanted more, she would purchase a baby right from a woman who wanted to trade hers in. "If we start from the original ZPG [Zero Population Growth] plan," Rothbard comments, "and we introduce the Boulding plan, wouldn't everyone be better off, and the requirements of 'Pareto superiority' therefore obtain" (p. 149)?

If the key to a free society cannot be found in economic theory, neither is resort to that contemporary shibboleth, democracy, sufficient. The mere fact that the majority of a society supports some measure tells us very little about that measure's desirability:

"What, in fact, is so great about democracy? Democracy is scarcely a virtue in itself, much less an overriding one, and not nearly as important as liberty, property rights, a free market, or strictly limited government. Democracy is simply a process, a means of selecting government rulers and policies. It has but one virtue, but this can indeed be an important one: it provides a peaceful means for the triumph of the popular will" (p. 41, the essay from which this quotation comes was a Confidential Memo here made available to the public for the first time).

With Rothbard, you can rarely predict what is coming next. No matter how carefully you may think you have grasped his thought, he was always several steps ahead. Thus, what follows from the passage I have just cited? You might think that, given his view of democracy, he would call for us sharply to de-emphasize democratic reforms. Quite the contrary, he demands more democracy.

It does not at all follow from the fact that democracy is theoretically inessential that moves in a democratic direction cannot be the order of the day. Rothbard was especially concerned to strip from the judiciary its power to overturn popularly supported initiatives. In a highhanded way, our judicial lords and masters find in the Constitution the leftist values that they have imposed on that document. Rothbard would have none of this: he proposed measures that would "effectively crush the power of the Supreme Court" (p. 413).

As should be by now sufficiently obvious, Rothbard was no conventional economist. His economic analysis was always embedded within a careful account of politics and ethics. Thus, many "free-market" economists, when considering Nafta, saw only that some tariffs would by its terms be lowered. Was this not a move toward free trade, that deserved the support of libertarians?

Rothbard's analysis penetrates much deeper: "The worst aspects of Nafta are the Clintonian side agreements, which have converted an unfortunate Bush treaty into a horror of international statism. We have the side agreements to thank for the supra- national commissions and their coming 'upward harmonization.' The side agreements also push the foreign aid aspect of the establishment's 'free trade' hoax" (p. 309).

Rothbard's treatment of the politics of economic issues covers a vast field, but one theme perhaps stands uppermost. Whatever advances the power of the state was to him a deadly danger. And even worse than an increase in the power of a single state was the rise of an imperial power that sought world domination.

Here he saw a prime danger of Nafta, a vital step to a New World Order. Politically, it suggests that the United States is "totally committed" to a form of global government. Economically, it means not free trade but a "managed, cartelized trade and production, the economy to be governed by an oligarchic ruling coalition of Big Government, Big Business, and Big Intellectuals/Big Media" (p. 312).

Rothbard locates here the root failing of Keynesian economics, which he numerous times does battle with in this volume. Lord Keynes and his disciples spurned the gold standard, which Rothbard sees as the only basis for a sound currency. Instead, the Keynesians endeavored to establish a worldwide fiat currency, under the control of an international bank. To achieve this, the Keynesians thought, would eliminate a principal obstacle to their economic plans.

As everyone knows, the Keynesian system almost always prescribes inflation. But if one country inflates and others do not, or do so only to a lesser extent, it will lose gold or income to them. A Keynesian World Bank would permit all countries to inflate together: gone would be the check that independent monetary systems impose on radical Keynesianism.

Of course, there is the minor matter that a world Keynesian monetary system spells disaster. "At the end of the road would be a horrendous world-wide hyper-inflation, with no way of escaping into sounder or less inflated currencies" (p. 254). Fortunately, Keynesians have been unable to put their schemes into full operation; but the manifest failure of their system has not deterred them, and they must ever be combated anew. Rothbard's unique combination of political with economic analysis is an indispensable weapon in this struggle.

But if Keynesianism leads to disaster, wherein lies salvation? One false step, appealing to many, is to cast away theory altogether. The National Bureau of Economic Research has famously attempted to study the business cycle through strict reliance on fact. The Bureau's "proclaimed methodology is Baconian: that is, it trumpets the claim that it has no theories, that it collects myriads of facts and statistics, and that its cautiously worded conclusions arise solely, Phoenix-like, out of the data themselves" (p. 232).

Rothbard subjects the alleged scientific approach of the Bureau to devastating scrutiny. Rothbard, although of course firmly committed to Austrian economics, had a detailed knowledge of statistics, at one time his college major (p. 38); and he could meet the measurement devotees on their own ground.

The section "Our Intellectual Debts" strikes me as especially appealing. Here Rothbard pays tribute to W. H. Hutt, F. A. Hayek, V. Orval Watts, and Margit von Mises, all of whom, incidentally, lived to be at least eighty-nine. Rothbard's obituary on Hayek raises issues of major importance. He fully recognizes Hayek's outstanding contributions to Austrian business-cycle theory and to the socialist calculation argument, as well as the impact of his anti-statist classic, The Road to Serfdom. But after World War II, Rothbard maintains, Hayek strayed from the path of righteousness. "To the extent that Hayek remained interested in cycle theory, he began to engage in shifting and contradictory deviations from the Misesian paradigm" (p. 378).

And worse was in store. Hayek, "radically scornful of human reason" (p. 379), rejected natural law arguments in support of classical liberalism. Instead, he championed a murky doctrine of social evolution." Rothbard, both here and in "The Consequence of Human Action: Intended or Unintended?" makes crystal clear his aversion to undue stress on Hayek's leitmotif, the unintended consequences of human action.

Rothbard's measured response to an eminent name in the Austrian tradition may at first evoke surprise. But one of Rothbard's great strengths was his ability to adopt an independent intellectual outlook. Even the great Mises himself is, elsewhere in Rothbard's work, subjected to criticism. Rothbard's willingness to engage in frank criticism of bad ideas from any source only underscores his insistence on honesty and independence of mind.


Roger Backhouse
History of Economic Thought Newsletter Volume 56 (Summer 1996): 16-21

A review of a book review is hardly standard procedure, but Backhouse's article is a major scholarly assessment of Rothbard's History. Backhouse, an eminent historian of economic thought, writes with great appreciation of this monumental work. After a long summary of the volumes, stressing Rothbard's Austrian heroes and Ricardian villains, Backhouse notes that "the range of authors discussed is immense. Rothbard clearly makes the point that economics is the product of communities of scholars, not simply a small group of pioneering thinkers . . . his reading is vast, and there is much to be learned from him" (p. 20).

Backhouse finds Rothbard's "refusal to mince words" about Marx "very effective" and seems especially interested in the highly original account of the bullionist controversy.

He appears unsympathetic to praxeology. If, he says, we do not "know enough (or even anything) with sufficient certainty to be able to derive conclusions using the praxeological method . . . then the option of deriving universal, true conclusions is simply not available" (p. 17). But all this says is that if praxeology cannot be used, then it cannot be used. True enough, but hardly very significant.

Backhouse's conclusion is: "Rothbard's judgments are, in my view, frequently distorted by his Austrian perspective, but it is nonetheless, an exciting, even brilliant, book" (p. 21).