The Mises Review -- Spring 1997
The Mises Review -- Spring 1997
The Mises Review
A Quarterly Review of Books, by David Gordon
In Defense of Secession
GETTING IT RIGHT:
MARKETS AND CHOICES
Robert J. Barro
MIT Press, 1996, xv + 191 pgs.
Time on Their Hands
THE ECONOMICS OF TIME
AND IGNORANCE
Gerald P. O'Driscoll, Jr., and Mario J. Rizzo
Routledge, 1996 [1985], xxxiii + 265 pgs.
Who's in Charge?
PRESIDENTIAL WAR POWER
Louis Fisher
University Press of Kansas, 1995. xvi + 245 pgs.
A Case Not Closed
SLOUCHING
TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE
Robert H. Bork
Regan Books/Harper Collins, 1996, xiv + 382 pgs.
Judges Shall Be As Gods
OVERCOMING LAW
Richard A. Posner
Harvard University Press, 1995, x + 597 pgs.
The Ultimate Bailout
"SOCIAL SECURITY AND ITS
DISCONTENTS"
The New York Review of Books
December 16, 1996, pp. 68-72
Robert J. Barro
MIT Press, 1996, xv + 191 pgs.
If one passage in Robert Barro's excellent book attracts notice in the wrong quarters, he is
liable
to find himself in serious trouble. Our author, a free-market supporter in the inhospitable climate
of Harvard, has previously given evidence of a penchant for nonconformity. But now he goes one
step farther: he challenges one of the most entrenched taboos of the American Establishment.
As Barro points out, the United States has tended to react with suspicion toward secessionist
movements: "if the U.S. government had supported the right of secession in some other parts of
the world, such as the Soviet Union, then it would have indirectly challenged the basic premise
of the Civil War. Why was it desirable for Soviet republics to have the right to secession and
undesirable for U.S. states to have the same rights" (p. 27)? Surely Barro knows that the sanctity
of the Union cause is a given. How can he dare to challenge it? Against the conventional
wisdom, Barro adduces some simple facts. "The U.S. Civil War, by far the most costly conflict
ever for the United States..., caused over 600,000 military fatalities and an unknown number of
civilian deaths, and it severely damaged the southern economy. Per capita income went from
about 80 percent of the northern level before the war...to about 40 percent after the war.... It took
more than a century after the war's end in 1865 for southern per capita income to reattain 80
percent of the northern level.... Instead of being the greatest of American presidents, as many
people believe, Abraham Lincoln may instead have presided over the largest error in American
history" (pp. 26 27).
One can easily conjecture how defenders of Father Abraham will respond. Was not the cost
of
the war justified to free the slaves? To this, Barro has an effective rejoinder. "Everyone would
have been better off if the elimination of slavery had been accomplished by buying off the
slaveowners as the British did with the West Indian slaves during the 1830s instead of fighting
the war" (p. 28).
And if this suggestion is dismissed as unrealistic, our author is still not defeated. If the North
had
accepted Southern secession, what would have become of slavery? Other nations in the Western
hemisphere, most notably Brazil, abolished slavery without war: why would matters have been
any different in an independent Confederacy? The spirit of the times was against indefinite
continuance of the "peculiar institution."
Barro's aim extends beyond making a historical point, however important. He maintains that
economic considerations do not mandate large nations: the much-vaunted efficiency advantages
of vast national size are spurious. "There is no relation between the growth or level of per capita
income and the size of a country, measured by population or area. Small countries, even of
populations as little as a million, can perform well economically, as long as they remain open to
international trade" (p. 28).
Secession by no means stands alone among the political issues that Barro's economic
analysis
illuminates. He finds economic benefits in having a "relatively homogeneous population within a
given state" (p. 30). Diverse ethnic groups pent up in a single state will tend to devote resources
toward securing state patronage. The temptation to benefit at the expense of a rival race often
proves too much to overcome, with great losses to economic efficiency. (Barro's argument,
incidentally, was anticipated by Ludwig von Mises in Nation, State, and Economy.)
Given Barro's contention, it is surprising that he opposes "curbs on immigration" (p. iv); but
even
if he is unwilling to accept the implications of his own analysis, others will readily see where the
argument leads.
I have so far emphasized Barro on political issues, since his remarks are here especially
compelling; but he covers many other topics in this wide-ranging collection. The author, a
leading member of the "rational expectations" school, has little use for Keynesian economics.
According to Keynes, an "increase in aggregate demand due to the government's higher
expenditure supposedly leads to so much utilization of underemployed labor and capital that
output expands by more than the rise in government spending that is, by a multiple greater than
one. Thus, if the economy is operating at less than 'full employment,' then government programs
are even better than a free lunch" (pp. 110 11).
This famous hypothesis, Barro points out, cannot cope with a most inconvenient fact. Not a
single instance of the so-called demand multiplier has been shown to exist. Contrary to the
claims of many historians, the vast spending by the American government during World War II
did not rescue us from the depression: "the data show that output expanded during World War II
by less than the increase in military purchases.... No multiplier showed up in the United States
during World War II, and none has been observed in other times and places" (p. 111).
I fear that I have so far disappointed my readers. I have had hardly a word of criticism of the
book. A favorable notice of a non-Austrian economist in The Mises Review? Unthinkable! At
best I can give only partial satisfaction. Some points in the volume indeed stand open to
objection; but the book nevertheless is outstanding.
But, enough of praise: let's get on with what we have all been waiting for. Barro is most
famous
among economists for his defense of "Ricardian equivalence." Against claims that a budget
deficit crowds out investment, our author demurs. Faced with a budget deficit, taxpayers will
realize that taxes must eventually be raised to pay the bills.
This being so, they will, if rational, set aside money to pay for the tax increases they
anticipate.
What counts is not only current taxes, but the present value of future taxes. "[E]ach person
subtracts his or her share of this present value [of taxes] from the present value of income to
determine a net wealth position, which then determines desired consumption" (p. 93). Since
anticipated future taxes affect consumer spending in the present, "taxes and budget deficits have
equivalent effects on the economy" (p. 94).
The objections to Ricardian equivalence are many and various, a fact of which our author
shows
himself well aware. For one thing, people cannot be sure what the government will do in the
future. "Eventually" the bills must be paid; but eventually may be a long time, and perhaps
taxpayers will not wish fully to take account now of a bill that may be indefinitely deferred. In
the extreme case, it will not be they who pay, but a future generation of whom they know
nothing. And (a point Barro does not here mention) a deficit can hardly always be equivalent in
economic impact to taxes. Otherwise, a deficit might always be substituted for a tax; and no tax
bill would ever fall due.
The case against Ricardian equivalence seems to me strong, but the point here is not
principally
an assessment of this hypothesis. Rather, the issue I wish to address is the way in which Barro
confronts the objections to his view. He does not, surprisingly, respond by an endeavor to refute
the counter arguments. Instead, he readily admits that "some of the objections to Ricardian
equivalence are formally valid" (p. 94).
If so, why does he not abandon the thesis? Because "the quantitative implications of these
points
are unclear...the Ricardian view that budget deficits are unimportant may serve as a theoretically
respectable first-order proposition" (p. 94). Put crudely, Barro is saying that it does not matter
whether his hypothesis is false. All that counts is that it generate predictions that do not depart
very much from the data.
For Barro, the pursuit of statistical significance is a categorical imperative. In contrast to
Mises,
for whom historical evidence can only illustrate economic theorems established by deduction,
Barro directly derives supposed economic laws from statistical correlations. Thus, he endorses a
supposed "iron law of convergence" that about two percent of the gap between a rich and poor
country disappears each year. An Austrian would inquire of Barro why we should take this
supposed "law" as more than a summary of past facts. Why need the law hold in future?
In another area, Barro seems also vulnerable to objection. Readers will, I trust, not be unduly
surprised that this area is another departure from the Austrian approach. Barro's contention, if in
my view mistaken, is characteristically ingenious. The wages of professional athletes in major
sports, it seems, are "too high." What matters to fans in sports performance is not the absolute
level of skill but how a performer does in comparison with his rivals. "The relative performance
feature means that each team has too much incentive to hire the best athlete and each athlete has
too much incentive to raise his or her level of performance...each time a player gets more skillful,
he or she effectively reduces the skill of the other players" (p. 154).
The technical details of Barro's argument do not for our present purposes matter. Rather,
what is
of interest is the implicit standard Barro uses to condemn athletic salaries as "too high." It is the
familiar model of completely efficient resource use, in which all "externalities" have been
subjected to correction. But why should this model be taken as an ethical ideal by which to
assess
market performance? With their insistence on full awareness of presuppositions, Austrians know
better than to assume without argument that this criterion should be accepted.
But, much as it goes against the grain, I shall not end on a negative note, because Barro does
not
deserve it. His fine book abounds in insights. The author's commendable skepticism about the
economic benefits of democracy and his keen dissection of the "endangered species" regulations
are especially compelling.
I have space for only one sample. "Most puzzling is the determination of the level of
spending on
a species once it has been listed [as endangered].... The key matter appears to be whether the
animal has charismatic qualities.... Basically, people like bald eagles, and that is why they get so
much attention" (p. 153).
THE ECONOMICS OF TIME AND IGNORANCE
Gerald P. O'Driscoll, Jr., and Mario J. Rizzo
Routledge, 1996 [1985], xxxiii + 265 pgs.
For once a publisher's blurb does not exaggerate. The Economics of Time and Ignorance has
indeed been "one of the seminal works in modern Austrian economics" and the book's welcome
reissue, with a new introduction, offers an opportunity for its examination here (The new
introductory essay, "Time and Ignorance After Ten Years" is the work of Professor Rizzo alone;
but the book's coauthor has read it [p. xxix, n. 1]).
Assessment of the book is no easy task. Our authors, in their abundance, have given us not
one
book, but two. One of these is a valuable, if at times debatable, contribution to Austrian
economics. The other is a philosophical account of time and ignorance, which might better have
been titled "A Budget of Paradoxes." I shall endeavor to say something about both books, with
greater attention to the second and its fallacious arguments. What else would you expect?
Economic actors constantly face uncertainty. This elementary fact, one would have thought,
hardly needs stating. Anyone who has tried to make money in the stock market should be well
aware of it. However obvious the pervasive fact of uncertainty, mainstream neoclassical
economists ignore its implications. By contrast, Austrian economics (at least ideally) is well
suited to incorporate uncertainty into its analysis.
This is the principal thesis of what I have termed the authors' first book, and they argue for it
in
convincing fashion.
Thus, a familiar neoclassical claim is that monopoly, in contrast to perfect competition, leads
to a
welfare loss. But the argument in support of this contention treats a monopolist "as knowing or
being capable of discovering competitive equilibrium.... If, however, we relax the assumptions of
standard theory, it is not clear that we can distinguish conceptually between the behavior of
competitors and monopolists" (p. 144).
The monopolist does not have a filled-in textbook diagram in front of him and ought not to
be
judged by the standards of an unrealistic model. The authors' point is well taken; but their use of
it to indict neoclassical economics is weakened by the fact that Kenneth Arrow arrives at
conclusions somewhat like their own (pp. 144 45). Since Arrow is one of the world's foremost
neoclassicals, the entire school can hardly be condemned on this score.
As the argument just presented indicates, the authors view with great suspicion attempts to
treat
equilibrium as a really existing state of affairs. In some respects, as it seems to me, their criticism
of the use of equilibrium constructs goes too far. In particular, their objection to Mises's use of
equilibrium misfires.
They remark: "Mises developed what he called an argumentum a contrario"; the "equilibrium
construct can be used as a foil against which to compare actual market situations. Thus, if
conditions a, b, and c together imply a certain equilibrium, then the absence of that equilibrium
would imply that at least one of the conditions does not hold. Economic analysis then focuses on
the forces responsible for this situation" (p. 82).
Against this, they note that the conditions for equilibrium are sufficient conditions, not
necessary
ones. But this prevents Mises from offering a "logically sufficient explanation for the 'failure' of
actual processes. The absence of sufficient conditions does not imply the absence of the result
predicted by the equilibrium construct.... Only the absence of all possible sufficient conditions
(the conjunction of which is a necessary condition) would imply this" (p. 82).
Don't blame me, I didn't write this!
But Mises's point is perfectly in order. If Mises has correctly given sufficient conditions for
equilibrium (a point our authors do not challenge), then the absence of equilibrium does indeed
indicate that one of his conditions has not been realized. That is a perfectly valid (and obvious)
argument by denial of the consequent.
That some other sets of conditions suffice for equilibrium is neither here nor there. Why
should a
theorist be interested in "logical sufficiency" in the sense our authors delimit? Surely the set of
conditions to use are those the theorist finds illuminating, not "every possible set." After all, it is
trivially easy to conjure up a set of sufficient conditions for equilibrium. The conjunction of
Mises's set and "the moon is made of green cheese" is such a set. Must a theorist seek to
incorporate it into an explanation of the failure of equilibrium to obtain? If not, what is the point
of the authors' criticism?
In a further application of their leitmotif, the inadequacy of neoclassical economics,
O'Driscoll
and Rizzo criticize attempts to show that economic, legal, and political rules are "efficient."
Much of what they say makes eminent good sense, and Richard Posner and his disciples would
profit from study of their remarks.
But one of their arguments seems to me in error. They say: the "rules themselves are
adopted, at
least in part, by an a-rational process. To suppose that...the legal framework is the product of
rational choice only pushes back the question of the framework within which that choice was
made. One would eventually be led into an infinite regress" (p. 122, emphasis in original).
I do not think that one would. Suppose the rules are chosen by persons attempting to
maximize
their utilities. Why must there be a further question about the framework within which their
choices are made? One is simply given people with certain ultimate preferences, and that is that.
But perhaps, our authors will say, just this is an example of the "a-rational process" they have in
mind. The preferences are not themselves determined by a rational criterion. But whoever among
the proponents of efficiency said they were? The exact nature of the authors' objection eludes me.
Exception might be taken to other statements in the book's economic analysis. Why, for
example,
do they advance "maximal possible plan coordination" as a normative criterion, when they
themselves state what appear to be insuperable problems for that standard (p. 118)? In fairness to
them, I am uncertain from their language whether they do adopt it. But I think they do; and
counterexamples cannot be swept under the rug as "issues unresolved."
But, regardless of these objections, their economic analysis merits careful attention. Their
chief
problem lies in what I call their second book. Their economic work, taken on its own terms, is
not enough for them. No; they must set forward the foundations of their position in a
philosophical analysis of time. Though they deal with important issues, the main arguments they
advance seem to me uniformly mistaken.
To understand what they have in mind, we must return to our starting point, the uncertainty
that
faces economic actors. To our authors, this is more than a common-sense fact. Philosophical
argument shows that the future is necessarily uncertain.
Does it? Let us examine a few of the arguments they offer. "Our first argument is derived
from
Karl Popper's demonstration that it is impossible for an individual to predict his own future
knowledge." "Suppose P (predictor) has complete knowledge of his initial circumstances at
t1,...and wishes to predict his knowledge at t3. Can this be done? P will take some finite amount
of time, say until t2, in order to deduce his state of knowledge at t3. However, the knowledge
gained at t2 will affect P's state at t3" (p. 25).
And should our hapless P try to incorporate the knowledge gained at t2 into his prediction,
the
problem recurs. In the time it takes him to do this, he has gained new knowledge, and so on.
Unfortunately, no support is offered for the key premise that P gains knowledge at t2 that
affects
his state at t3. What if he doesn't? I may have missed something, but Popper's argument seems
blatantly to beg the question.
A second argument they give seems, if anything, worse. As near as I can make out, the
contention is that, under certain assumptions, you cannot predict your future decisions. If you
could, then you would know now what you would decide tomorrow. But then you would have
already decided now to do the acts in question, and there would, against the hypothesis, be no
future decisions. Hence self-prediction is impossible.
Well, let's run through an example. I claim to know that I shall decide to have cereal for
breakfast
tomorrow. Have I, as a result, decided now to have cereal tomorrow? For heaven's sake, why? I
shall decide that tomorrow: this is precisely what I claim to know today. No reason at all has
been given to think that believing correctly, at t1, that I shall decide to do something at t2 is to
decide to do that thing at t1.
But suppose their argument is right. Where will that get them? I can, for all the argument has
shown, perfectly predict my future actions. True, I would be deciding now to do them; but
nevertheless I would know now what they are.
And why all the fuss about self prediction anyway? Suppose that you cannot predict your
own
future actions. Why can't someone else predict them? (Please do not respond: if he discloses the
prediction to you, you might decide to act otherwise. If the prediction is correct, you will not.) In
any event, the hated enemy, neoclassical economics, does not usually make predictions about
particular actions of concrete individuals; what then is the relevance of our authors' arguments to
economics?
I venture to predict that O'Driscoll and Rizzo will respond that I have totally misjudged the
depth
of their case. Profound metaphysical arguments, advanced by the French philosopher Henri
Bergson, show that one must view the future as uncertain in order to experience time at all.
Individuals do not experience time in dimensionless points. "Hearing only one note of a
melody,
for example, is insufficient to capture the experience of music. This is because our perception
involves memory of the just-elapsed phases (or notes) and anticipation of those yet to come. The
actual experience is thus more than a mathematical constant" (p. 60).
So far, so good; I, at any rate, find nothing implausible in this. But, to our authors, the
"dynamic
continuity" of time has momentous consequence, as Bergson has brought out. Time is
experienced as memory and anticipation; absent genuine novelty, then, time could not be
experienced at all. "[T]he passage of time involves 'creative evolution'; that is, processes produce
unpredictable change.... If change is real, it cannot be completely deterministic: there must be
scope for surprise" (p. 62).
A closer look at their musical example will at once show the fallacy. If I hear the opening
bars of
Beethoven's Third Symphony, I know perfectly well what is coming next. The fact that I know
what is coming does not block my anticipation of what is to come: quite the contrary, it
constitutes it. O'Driscoll and Rizzo (and, if they expound him correctly, Bergson) have confused
expecting something to happen with being surprised by a future event. The content of a genuine
surprise is just what cannot be anticipated. (I can, of course, expect to be surprised and turn out
to
be surprised by what takes place.)
Reviewers often criticize authors by saying: you did not cite a, you ought to have taken
account
of definitive work b, etc. This very often is unfair: a reviewer can practically always locate some
obscure work that his victim (sorry: subject) has failed to consult.
Having said this, I fear that I am now about to indulge in exactly this sort of criticism with
what
degree of fairness my readers must judge. Although the authors are in general impressively
erudite, they do not display familiarity with treatments of time by analytic philosophers. One
misses or at any rate I miss reference to Grnbaum, van Fraassen, Putnam, etc. I venture to
suggest
that if they knew this literature, they would see that the case for Bergsonian time is not so simple
as they make out. Adolf Grnbaum's discussion of the Bergsonian philosopher Capek, whom they
cite extensively, would have been useful to take into account.
On occasion, unfamiliarity with the subject seems clearly in evidence. In his Introduction,
Professor Rizzo gets exactly backward what William James meant by the "specious present."
"The denial of time consciousness is inherently self-contradictory from the perspective of the
agent. This is because the instantaneous (or mathematical) present is 'specious'" (p. xv). But the
specious present is not the instantaneous present, on James's account. The claim Rizzo is so
anxious to make, that we perceive time as a flow that incorporates past and future moments, is
the Jamesian specious present. Rizzo, did he but know it, is himself an advocate of the specious
present.
Fortunately for our authors, their confusions about time do not fatally disable the economic
sections of their book. They regard their economic discussions as applications of their
philosophical analysis; but in my view they are wrong to do so. (For this reason, I deliberately
called their Part I their "second" book.) They would be well advised to give the philosophy of
time a rest; otherwise they will continue "in wand'ring mazes lost."
Louis Fisher
University Press of Kansas, 1995. xvi + 245 pgs.
The conduct of contemporary American foreign policy flies in the face of the Constitution
and
much of our history. Of this unfortunate circumstance, readers of Louis Fisher's definitive book
will have no doubt. Today, President Clinton claims, on his authority as Commander-in-Chief,
the power to commit American troops to Bosnia and elsewhere, without the consent of Congress.
Like his predecessor George Bush in the Gulf War, he avers that he may act in entire
independence of Congress: the president is supreme in foreign policy. Though the cooperation of
Congress in foreign adventures may be sought, this is a matter of political convenience rather
than legal necessity.
Louis Fisher, probably the foremost expert on the legal questions involved, rejects entirely
the
self-serving view of our beloved chief magistrate. The Constitution states without ambiguity that
Congress, not the President, has the power to declare war. As Fisher makes abundantly clear, the
framers had good reason for their language.
Under the British system of government, the power to declare war rested solely with the
king;
likewise, it was his prerogative to make treaties that could irrevocably bind his subjects. "These
models of executive power were well known to the framers. They knew that their forebears in
England had committed to the executive the power to go to war. However, when they declared
their independence from England, they rested all executive process in the Continental Congress"
(p. 2).
In so doing, the American revolutionaries broke with John Locke. As Fisher notes, Locke in
the
Second Treatise associated the power of war and peace, which he termed the federative power,
with the executive. To the framers, this assignment of power threatened tyranny; in so
concluding, they were, I suggest, better Lockeans than Locke himself.
The delegates to the Philadelphia convention continued to adhere to the revolutionaries' view
of
the question. "On numerous occasions the delegates to the constitutional convention emphasized
that the power of peace and war associated with monarchy would not be given to the President"
(p. 4). Even so ardent a supporter of a strong executive as Alexander Hamilton concurred in the
common view.
An objection at once arises to Fisher's contention. No doubt, as he says, the Constitution
gives to
Congress alone the power to declare war. But is this not a mere formality? The President remains
free to send troops into combat as he wishes, through his power as Commander-in-Chief. The
clause in question merely restrains him from calling his expeditions "wars" on his own volition.
So what?
Our author easily turns this objection aside. Like the Continental Congress, the U.S.
Congress's
authority extended both "to 'perfect' and 'imperfect' wars to wars that were formally declared by
Congress and those that were merely authorized" (p. 2). Fisher emphasizes especially that
Congress, not the president, had the constitutional power to authorize private citizens to use
armed force against foreign nations, through letters of marque and reprisal.
If thwarted by the text of the Constitution, supporters of presidential power are apt to turn to
the
Republic's early history. Did not Washington and Jefferson both commit forces to combat
without a congressional declaration of war? What of the Indian Wars, the Whiskey Rebellion,
and the campaigns against the Barbary pirates?
One of the book's great strengths is its forthright exposure of the myth that the executive in
these
instances acted independently. In each case, Fisher shows, the president acted with the full
consent of Congress.
"Recent studies by the Justice Department and statements made during congressional debate
imply that Jefferson took military measures against the Barbary powers without seeking the
approval or authority of Congress. In fact, in at least ten statutes, Congress explicitly authorized
military action by presidents Jefferson and Madison" (p. 26, footnote number omitted). Those
seeking full details of each example must of course consult the book; after Fisher's painstaking
survey, the matter admits of no doubt.
In one particular, I venture to suggest that Fisher might have strengthened even further his
already overwhelming presentation. He notes Raoul Berger's citation of the Continental
Congress's detailed instructions to George Washington as evidence of the narrow scope accorded
the commander-in-chief. But he finds fault with Berger's analysis. The Congress often made
"extensive delegations" of authority to Washington (p. 11). Further, the limits on an officer
subordinate to Congress need not apply to the president, who heads a coequal branch of the
government.
Fisher's objections do not speak directly to Berger's argument. True, the Congress delegated
power to Washington: but it was theirs to delegate, as Berger's citation of the instructions to
Washington shows. And the issue in dispute is not whether the president has more power than a
general of the revolutionary army; rather, the question is what power derives from his
designation
as commander-in-chief. Here, Berger's resort to contemporary usage of the phrase is entirely on
point.
If, though, the case for Congressional authority over war is as strong as Fisher alleges, how
did
we get where we are today? During the first half of the nineteenth century, presidents usually
adhered to constitutional requirements, although James Polk behaved in highly dubious fashion
during the Mexican War. Of course matters were different with Abraham Lincoln, that fount of
all things unconstitutional. "In April 1861, with Congress in recess, he [Lincoln] issued
proclamations calling forth the state militia, suspending the writ of habeas corpus, and placing a
blockade on the rebellious states" (p. 38). Yet even Lincoln acknowledged that he had acted ultra
vires and sought subsequent Congressional approval to make good his illegalities.
If, much against our instincts, Lincoln cannot be saddled with the full blame for presidential
usurpation of the war power, who can? Fisher tells a long and involved story, but two presidents
especially merit a place in the rogue's gallery.
As Fisher notes, Woodrow Wilson's violation of the Constitution proceeded from long
meditated
plans. Although the Constitution provides for treaties to be made by the president with the
"advice and consent of the Senate," Wilson in two books openly expressed his contempt for this
limit to executive power. By his power to take unilateral initiatives, the president could create a
situation in which Congress would have no alternative but to back the president. "The initiative
in foreign affairs, which the President possesses without any restriction whatever, is virtually the
power to control them absolutely" (p. 72, quoting Wilson, Constitutional Government in the
United States).
When elected president, Wilson adhered faithfully to his designs; but as the battle over the
Treaty
of Versailles showed all too well, he could not bludgeon Congress into acknowledging the
dominance in foreign affairs he claimed. With Harry Truman, who shared Wilson's bloated
conception of executive power, matters proved far different.
During the Korean War, Congress was more than willing to give Truman full support for his
military moves in Asia. But he disdained the legislative branch's approval. In his view, he did not
require its consent to send American troops into battle. Congress might accede if it wished; the
question was really of no moment. "President Truman did not seek the approval of members of
Congress for his military actions in Korea. As [Secretary of State] Acheson suggested, Truman
might only wish to 'tell them what had been decided'" (p. 86).
I need not fear spoiling the reader's surprise if I reveal that the modern Supreme Court has
not
stood foremost as a champion of the original understanding of the Constitution. Oddly enough,
though, a key decision upholding executive supremacy in foreign affairs came from George
Sutherland, normally a highly conservative justice. Sutherland, one of the Supreme Court's "Four
Horsemen of Reaction," did not hesitate to strike down New Deal domestic legislation as
unconstitutional. Yet in foreign affairs he saw matters in an entirely different light.
In the Curtiss-Wright case (1936), Sutherland held that the president's power in foreign
affairs
existed in entire independence from the Constitution. The power to conduct foreign relations is
an "inherent attribute of sovereignty." As such, it passed upon independence directly from the
British Crown to the colonies collectively. Somehow, though Sutherland did not make clear in
exactly what fashion, the power migrated to the Chief Executive.
Fisher crisply and clearly dissects Sutherland's opinion, and fortunately in recent years the
Court
has retreated from its extreme language. Our author sees in this a sign of hope. Indeed, he is
generally an optimist, believing that if Congress resolutely asserts its constitutional prerogative,
the president will be forced to comply with its wishes. He supports his opinion through a detailed
account of the War Powers Resolution of 1973.
One may hope that he is right; but even if Congress does assert its authority, the battle is
liable to
be difficult. Recent presidents, not least among them Bush and Clinton, have done their best to
thwart Congressional attempts to rein in the plenary powers they claim for themselves.
Fisher's carefully presented book requires us to answer an underlying question. Granted that
the
author's constitutional argument is correct, why does this matter for us now? Fisher does not
address the issue in elaborate detail, but the response is sufficiently obvious. Congressional
authority over war provides an indispensable means to curb a president intent on foreign
adventures.
Though Fisher well states the essentials of the case, his book can here usefully be
supplemented
with the excellent work of John Hart Ely, War and Responsibility, which was reviewed in these
pages on an earlier occasion (Mises Review, Spring 1996, pp. 10 13). More generally, the two
books are near perfect complements: Ely is a master of argumentative subtlety, while Fisher
excels in historical research.
But what if, against all expectation, the president proves less bellicose than Congress? Here a
non-interventionist need fear nothing, since matters are likely to work out as he desires. As
commander-in-chief, the president does possess some real powers, and one of them may be used
to block an overly aggressive Congress.
Fisher makes this clear through an amusing anecdote about Grover Cleveland. When
members of
Congress pressed for war with Spain, "Cleveland responded bluntly. 'There will be no war with
Spain over Cuba while I am President.' A member of Congress protested that the Constitution
gave Congress the right to declare war, but Cleveland countered by saying that the Constitution
also made him Commander-in-Chief and 'I will not mobilize the army'" (p. 42). This kind of
presidential defiance we can tolerate.
Robert H. Bork
Regan Books/Harper Collins, 1996, xiv + 382 pgs.
With ample reason, Robert Bork indicts contemporary American culture. But he in part
misidentifies what is responsible for our current predicament; and as a result, he grossly
misunderstands classical liberalism. His rejection of classical liberalism leads him to embrace
dangerous doctrine.
Our author considers a number of grave social problems, devoting a chapter to each: these
include pornography, abuses of the welfare system, "killing for convenience," and the rise of
nihilism in many subjects previously regarded as academic disciplines.
His discussion of abortion seems to me especially insightful. As he rightly points out, the
Supreme Court in Roe v. Wade erred in taking it to be controversial whether a fetus is a human
being. "The question of whether abortion is the termination of a human life is a relatively simple
one.... It is impossible to draw a line anywhere after the moment of fertilization and say that
before this point the creature is not human but after this point it is. It has all the attributes of a
human from the beginning, and those attributes were in the forty-six chromosomes with which it
began" (pp. 174 75).
Bork does not argue that this suffices to show that all abortions are morally wrong. But
granted
that the fetus is human, may it be killed "simply for convenience"? Surely it is wrong to do so.
Even in this excellent chapter, however, a weakness is manifest. Our author is not really at
home
with philosophical arguments. (He of course is highly adept at legal reasoning; but mastery of
law need not bring with it skill in philosophy.) As an example, someone who denies that abortion
is murder need not, as Bork thinks, doubt that the fetus is a human being. He may instead hold
that not all human beings are persons, but only persons have rights. I entirely agree that this is a
dangerous doctrine: in practice it would quickly lead to self-styled experts deciding who is fit to
live.
But whatever the bad consequences of this view, Bork has not shown that it is false. Bork
states:
"The characteristics of appearance, sentience, ability to live without assistance, and being valued
by others cannot be the characteristics that entitle you to sufficient moral respect to go on living"
(p. 177).
But to say this does not suffice: Bork needs to confront the arguments of those who claim
just
what he denies. Bork might respond that he does not need at all to argue for his view: ultimate
issues of morality are not amendable to argument. "[M]orals or ethics...cannot be reached by
reason" (p. 275). If so, why need he argue for the truth of his contention?
Does this not push the problem back one step? Kant famously thought that morality can be
derived rationally; and among philosophers he is not alone in this belief. Bork thinks it mistaken:
but, once more, this must be shown and not merely stated.
I do not mean to rule out of court the view that morality consists of certain ultimate
judgments
that cannot be further justified. Quite the contrary, this theory strikes me as very much a live
option. But this is just the point. Intuitionism is a moral theory, one among several other
contenders, that must be defended by argument.
Bork's failure to set forward his arguments rigorously leads to a crucial error in his approach
to
constitutional interpretation. He rightly castigates the Supreme Court for imposing leftist
dogmas. Judges should not enact their own preferences into law but should be bound by original
intent.
Excellent. But what does our author mean by original intent? He confuses two distinct
questions:
what did the framers of a law intend by what they enacted? and what was the end or purpose they
sought by their enactment? No doubt the answer to each question may prove crucial to help us
answer the other; but an example readily shows that the two questions are not the same.
In Bork's view, the framers of the First Amendment wished to protect political speech. "In a
republic, where the polls are open and elected representatives make the law, there can be no
value in speech advocating the closing of the polls or nullifying the effects of laws
democratically made" (p. 102). Suppose that Bork is right: the framers valued political speech of
a certain type and for this reason promulgated the First Amendment.
Does it follow that the First Amendment protects only political speech of the relevant kind?
No,
it does not. The framers, we assume, did not value certain types of speech; but this does not
entail
that they excluded the speech they did not value from protection. One way to protect political
speech is to protect all speech. To show that certain forms of expression do not fall within the
Amendment's scope, Bork needs to show that the framers did not adopt this strategy. And to
show this, once more it is not sufficient to show that their motive was to protect political speech.
Exactly the same fallacy vitiates Bork's discussion of the Second Amendment. Although an
opponent of gun control, Bork refuses to regard the issue as a constitutional one. "The Second
Amendment was designed to allow states to defend themselves against a possibly tyrannical
national government. Now that the federal government has stealth bombers and nuclear weapons,
it is hard to imagine what people would need to keep in the garage to serve that purpose" (p.
166n).
As before, let us suppose Bork is entirely right about why the framers enacted this
amendment. It
does not follow that if the aim they sought can no longer be achieved by allowing individuals to
keep and bear arms, then individuals no longer have those rights. In a way that should by now be
obvious, Bork confuses our two questions.
But let us return from the constitution to contemporary moral issues. What is responsible, in
Bork's view, for much of our current plight is modern liberalism. And modern liberalism has
developed from classical liberalism. "Liberalism always had the tendency to become modern
liberalism" (p. 8).
But why does Bork think this? In his view, two doctrines underlie liberalism: individualism
and
egalitarianism. These doctrines need not lead to disaster; if a society limits their application by
discipline and restraint, matters will go reasonably well.
"Men were kept from rootless hedonism, which is the end stage of unconfined individualism,
by
religion, morality, and law To them I would add the necessity for hard work, usually physical
work, and the fear of want" (p. 8). Absent these restraints, classical liberalism degenerates into
radical individualism and egalitarianism, the defining characteristics of modern liberalism.
Bork once more combines insight and error in an odd mixture. His assault on modern
liberalism
is on target; but his presentation of classical liberalism is a caricature. The individualism of the
classical liberals does not stem from the pursuit of self-gratification, but from a view of the
requirements of natural law. And egalitarianism seems to me not a principle of the classical
doctrine at all.
Our author's misleading view of classical liberalism in part stems from his taking John Stuart
Mill, rather than Locke, as the key philosopher of the movement. What little he does say about
Locke is mistaken. He did not hold an optimistic view of man, nor did he believe that man is
"inherently self-sufficing" and autonomous, Robert Nisbet to the contrary notwithstanding. In my
view, he is most plausibly read as a somewhat heterodox Calvinist.
This, admittedly, is controversial; but Bork's principal point fails even if I am wrong about
Locke. Bork himself acknowledges that modern liberalism "has now turned classical liberalism
upside down with respect to both liberty and equality" (p. 329). If so, why take the two divergent
doctrines as parts of a continuous movement?
And Bork's conflation of classical and modern liberalism is no mere mistake of theory. Since
he
rejects individual rights, as the classical view professes them, nothing stands in the way of a
virulent statism. Thus, censorship is the order of the day. Those who protested spending public
funds on Robert Mapplethorpe's obscenities have missed the real issue, according to our author.
"To complain about the source of the dollars involved is to cheapen a moral position" (p. 150).
What could be more ridiculous than people thinking they are entitled to their own money?
"[A]s
if taxpayers should never be required to subsidize things they don't like. If that were the case,
government would have to close down altogether. Both spending and taxation would be at zero"
(p. 150). The omnicompetent state is, for Bork, not a monster to be dispatched but a tool to be
used. Whether the state is likely to enforce the values he favors is a question he leaves
unexamined.
Our author's statism extends beyond culture. He gives as an example of a "demonstrably
irrational" proposal "reviving the Tenth Amendment to confine the federal government to the
enumerated powers" (p. 270). Why, this would mean "the end of Social Security and Medicare"
(p. 276). How dreadful!
OVERCOMING
LAW
Richard A. Posner
Harvard University Press, 1995, x + 597 pgs.
To most conservatives, constitutional interpretation is straightforward. The judge's task is to
understand the Constitution as intended by its authors. A judge must not anachronistically
impose his own social philosophy on the document; and the principal complaint against "liberal"
judges is that they commit this sin. Notoriously, for example, the Warren Court preferred its
understanding of Gunnar Myrdal and Kenneth Clark over the legislative history of the Fourteenth
Amendment.
Much of Richard Posner's long and learned volume is devoted to an assault on "originalism."
More exactly, the book's principal target is a general category, "formalism" of which originalism
is alleged to be a species. Formalism resists exact definition; but, roughly, it holds that law is a
fixed body of principles that may be analyzed without the use of other disciplines, especially the
social sciences.
Our author, who is Chief Judge of the United States Court of Appeals, Seventh Circuit, was
in an
earlier incarnation the leading academic advocate of law-and-economics, a doctrine in which he
still devoutly believes. To paraphrase Hume, law-and- economics maintains that "law is, and
ought only to be, the slave of wealth maximization." Holders of this position, as can well be
imagined, do not look on originalism with entire favor. Were one restricted to the text, the
pursuit of wealth might be hindered.
What has Posner to say against interpreting the Constitution as written? His key argument is
this:
"Many provisions of the Constitution...are drafted in general terms. This creates flexibility in the
face of unforeseen change, but it also creates the possibility of alternative interpretations, and this
possibility is an embarrassment for a theory of judicial legitimacy that denies that judges have
any right to exercise discretion" (p. 233). Given an indeterminate text, a judge must choose; and
to choose properly he must weigh consequences.
Judge Posner of course is right that much of the Constitution is in form general: "The
freedom of
speech," "the equal protection of the laws," etc. But it does not follow from this that these
provisions are indeterminate in meaning. Posner's argument, when pressed, seems to be that
unless we do take the general provisions as indeterminate, we shall be unable to cope with new
conditions. The poor, benighted framers could not possibly anticipate what we know today
especially if we have thoroughly studied Posner's opera omnia.
To make good his argument, Posner needs to give examples of general constitutional
provisions
that, if "inflexibly" interpreted, eventuate in disaster; but he fails to do so. In fact, Posner himself
in another context notes an instance that goes strongly against his view, though he fails to draw
the connection.
During the early years of the New Deal, the Supreme Court used an "inflexible"
interpretation of
parts of the Constitution, e.g., the commerce clause, to strike down key legislation of the
Rooseveltian New Order. Many legal "progressives" maintained that strict construction placed
needed social reform in a straitjacket.
Did the Court do this? In fact, the situation is entirely the reverse: had the Court invalidated
more
New Deal nostrums, we would nearly all have been better off. Let Posner tell the story: "Many
New Deal programs were aimed at raising prices and wages, and by thus reducing economic
growth and employment programs delayed the recovery from the Depression as did (in all
likelihood) the spirit of restless experimentation and of hostility to business that was
characteristic of Roosevelt's pre- World War II Presidency" (p. 221). Hardly a point for flexible
interpretation, is it?
But has Posner nothing at all to cite as an example of the disasters of originalism? It
transpires
that he does indeed have a case in mind: that old warhorse, Brown v. Board of Education. Had
Earl Warren paid attention to the historical context of the Fourteenth Amendment, "a history
which indicates that the amendment had not been understood by its framers or supporters to
require blacks to attend school with whites," he might never have been able to rule segregation
unconstitutional (p. 225, Posner in a footnote cites an unpublished work by Michael McConnell
which challenges this view of the legislative history. But I venture to suggest that Raoul Berger,
whom Posner does not cite, has conclusively shown that the quoted view is correct).
There we have it. Originalism leads to the rejection of Brown; Brown is sacred; therefore,
originalism has been "weighed, and found wanting in the balance." This, I suggest, is the essence
of Posner's case against strict construction.
He berates the legal theorist Herbert Wechsler for criticizing Brown; although a devout
liberal,
Wechsler found himself unable to arrive at "neutral principles" on which Brown could be
defended. "One might have supposed that the central question in Brown v. Board of Education
was not the scope of some abstract principle of freedom of association but whether racial
segregation of public facilities in the South was intended or likely to keep the blacks in their
traditionally subordinate position" (p. 72).
Perhaps it was; but why is the Supreme Court a roving body to solve social problems? And
why
must we choose between the preservation of enforced segregation and a "results-oriented"
jurisprudence? Did these exhaust the alternatives in the 1950s and 60s? Posner gives us no
reason to think so.
Posner does however make one effective point about the controversy over Brown. Many
professed originalists defend Brown; and this they cannot with consistency do (unless they read
the legislative history aberrantly). Thus, Robert Bork builds up "an unanswerable case on his
own
[originalist] terms" against Brown, but "flinches" from accepting the implication of his own
analysis (p. 247). He too wishes to retain Brown.
Of course, Posner does not, as he should, condemn Bork for flinching. His point, to reiterate,
is
that given Brown as a "sacred cow" (p. 249), we must embrace a judicial philosophy that entails
that the case was rightly decided.
Our author is alert to an objection. Is it not undemocratic for a small group of judges, who
hold
office for life, to impose their conception of the good on the rest of us? Unlike Bork, Posner does
not flinch. He responds, what is so good about unlimited democracy? "Liberalism is in tension
with democracy. Democracy is a means not only of dispersing political power and thus of
protecting the private sphere against invasion by the public sphere, but also of enabling people to
enforce their dislike of other people's self-regarding behavior" (p. 25).
Further, democracy often fails adequately to reflect the preferences of the majority. A "large
and
amorphous majority" may be at the mercy of a cohesive special-interest group, which can often
"use the political process to transfer wealth to itself" (p. 203). And representatives often do not
carry out the wishes of the electors: "They have their own interests, selfish and otherwise" (p.
203).
Posner's challenge to unlimited democracy is effective; but his style of jurisprudence remains
vulnerable to a variant of the objection from democracy. We may simply ask: why should an
elite
coterie of judges rule over us? This objection does not assume anything at all about democracy;
but it requires an answer. Preoccupied with his view that judges should decide cases by their
consequences, he fails to ask what consequences justify the existence of a Supreme Court at all.
I have so far been unjust to Judge Posner; and this, in a review of a work of legal theory, will
never do. His criticism of originalism is not freestanding but is embedded in a larger philosophy,
pragmatism, which supports his emphasis on consequences.
On second thought, I withdraw my admission of injustice. Pragmatism as professed by our
oracle
is monumentally silly. The "support" it offers his jurisprudence is, in Lenin's phrase, "the support
which a rope gives a hanging man."
Posner's variety of pragmatist is "skeptical about claims that we can have justified
confidence in
having arrived at the final truth about anything. Most of our certitudes are simply the beliefs
current in whatever community we happen to belong to" (p. 5). We accept such facts as the
existence of the external world because it would be disorienting for us to dislodge them.
But even the most unshakable facts are not certain. "One can only pretend" to doubt that the
world exists independently of oneself and similar bedrock beliefs. "Yet while unable to doubt
them in the sense of being willing to act on our doubts, we can accept intellectually the
possibility that they will someday be supplanted by fundamental beliefs equally unshakable and
transient" (p. 5).
I freely confess that I am entirely unable to grasp how belief in the external world might be
"supplanted." To put words together in meaningless strings, as Posner does here, hardly qualifies
as philosophy. Let us pass by Posner's effusions "in silent contempt," as Dante says.
Posner reads remarkably widely; but his reading is not always accurate. Cardinal Bellarmine
did
not refuse to look through Galileo's telescope; or if he did, history does not record it (p. 344).
Pascal did not maintain that belief is "entirely voluntary" (p. 502); his discussion of the wager
explicitly takes account of the involuntary aspect of belief. The radio commentator Dennis Prager
is not a rabbi (p. 573). None of the construals Posner offers for "bounded rationality" captures
what Oliver Williamson means by the term (pp. 435 36). Nelson Goodman's concept "grue" is
not a metaphor (p. 524). But the problems of Posner's book go beyond details. The whole
structure is rotten.
<a name=""FEMINISM IS NOT THE STORY OF MY LIFE"">
"FEMINISM IS NOT THE STORY OF MY LIFE": HOW TODAY'S
FEMINIST ELITE HAS LOST TOUCH WITH THE REAL CONCERNS OF
WOMEN
Elizabeth Fox-Genovese
Doubleday, 1996, x + 275 pgs.
Elizabeth Fox-Genovese has had an idea brilliant in its simplicity and common sense.
Feminism
arouses furious passions, as supporters and opponents incessantly battle one another. Each party
remains committed to its own doctrine, and the endless polemics resolve nothing.
Here is where Fox-Genovese comes in. Why not find out from women themselves whether
radical feminism adequately represents their concerns? This she proceeded to do, both through
extensive personal interviews and analysis of polling data. The results of her research emerge
with crystal clarity and will be no surprise to anyone who has glanced at the book's title.
Radical feminism paints a distorted picture of the way many women view their lives.
According
to the feminist writer Naomi Wolf, "our media-led culture conspires to keep women permanently
insecure and anxious because they do not measure up to some abstract and unattainable standard
of beauty." Concern with looks, she warned, "literally kills women, frequently through anorexia,
sometimes through breast implants" (p. 39).
Contrary to Wolf's portrayal, Fox-Genovese found among the women she interviewed an
enjoyment of the "complexities of costuming." "Whatever the frustration and pain, most women
clearly value the distinctly female core of their identities" (p. 56).
If one issue serves as a litmus test for radical feminism, it is abortion on demand. Some
feminists
go so far as to say that "a woman's right to an 'effective abortion' may require killing a baby that
survives abortion" (p. 91). Unrestricted access to abortion, to the radicals, "guarantees a woman's
freedom" (p. 87).
Our author located no consensus on abortion among her interviewees. And this exactly
contravenes feminist dogma. A great many women do not take the unrestricted right to abortion
as basic to their freedom. And while most do think abortion justifiable in some cases, they refuse
to regard women who oppose abortion as advocates of oppression. And, far from regarding
children as a burden, most women, even those with careers, view raising children as essential to
their well-being.
Fox-Genovese states her own position on abortion in this way: "Until we agree that at some
point
during a pregnancy the abortion of a fetus becomes the murder of a baby, we will continue to run
the risk of measuring the sanctity of life by the yardstick of dollars and cents" (p. 107).
At one point in her discussion, our author goes astray. In Planned Parenthood v. Casey
(1992),
the Supreme Court did not, as she says, impose "new restrictions," such as a waiting period, on
abortion (p. 103). Rather, the Court allowed state restrictions to this effect to stand. The decision
does not compel the states to impose these limits. And it is surprising that she describes Richard
Posner's Sex and Reason as "insightful" (p. 107, n.4). The book defends just the economistic
approach to marriage and the family which she opposes. But these are minor criticisms.
How might radical feminists respond to Fox-Genovese's results? Probably, they would allege
that
women who reject feminist opinions do not properly understand their own interests. Women who
do not reject the family are to the radicals victims of "false consciousness," in the Marxist phrase.
But it is the radicals themselves who are the deluded ones. They reject the lived experience
of
women for the dictates of an abstract ideology unsupported by rational argument. If that is not
false consciousness, nothing is. Fox-Genovese's beautifully written book is must reading for
anyone interested in feminism and (rather a larger group) for anyone interested in understanding
women.
The New York Review of Books
December 16, 1996, pp. 68-72
Jeff Madrick, an economic journalist of statist bent, shows us the mind of a true leftist at
work.
He begins by pooh-poohing the alarmists who predict a crisis for Social Security. True enough,
by the year 2020, the system will owe "$200 to $300 billion a year" in benefits more than it
raises
in taxes (p. 68) In part, the difficulty arises because the federal government has spent funds from
the misnamed "trust fund."
Why is this not a crisis? According to Madrick, a "modest increase" in Social Security taxes
now
could prevent the impending shortfall in funds. But, he admits, "Washington would likely
squander" the increase in the trust fund that higher taxes would bring (p. 69). He suggest instead
that the government invest part of the trust fund in common stocks instead of Treasury bonds.
Madrick's "logic" arouses interest: since the government has squandered the trust fund, we might
as well give it a stranglehold on the stock market as well. One suspects that what Madrick calls
"moderate plans" are modest proposals in the sense of Jonathan Swift.
Having shown to his own satisfaction that the "crisis" can be solved, Madrick himself admits
that
a further aspect of the problem stumps him. If the deficit in Medicare is taken together with that
of Social Security, things do not look bright. "Social Security and Medicare could absorb more
than 12 percent of the nation's GDP in 2020 and more than 15 percent in 2040...taxes would have
to rise to 25 percent to 30 percent of wages to fund both programs unless changes are made" (p.
69).
Here then is how to defuse a crisis. Propose a solution; when you admit that it faces a fatal
difficulty, toss up another; continue the remedy as necessary. Our author unfortunately forgets
that you must not end up with one more problem than solutions.
And why go through the trouble? Isn't Social Security a poor "investment" for those not now
of
retirement age? Madrick admits that those "who retire today or in the future will receive an
average return [on their contributions] of perhaps only a couple of percentage points. Higher-paid
workers may well get back less than they contribute" (p. 70). Why raise taxes and turn the
economy over to the government for such meager results?
But this misses the point, Madrick informs us. The Social Security program "was never
originally
designed to give workers the highest possible return on their invested payments" (p. 70). Quite
the contrary, it aims at redistribution of income.
Why then include nearly everyone in the program? Need one ask? It is to gain political
support
for it. If the redistributive aims were openly avowed, the American people might be unwilling to
tender the degree of support our Washington masters think required. "The unspoken appeal of
privatization [of Social Security and Medicare] may well be that it allows the middle class to
reduce its commitment to help those who are less fortunate" (p. 72).
Look at the "hardship" inflicted on hundreds of thousands of children, Madrick laments, by
cuts
in daycare programs. Who can doubt that the American public is too "callous" to be left to its
own devices? "If day care or early educational programs were available to 90 percent of all
American children...they would be far less likely to lose political support" (p. 72).
Plainly put, Madrick thinks that people are too stupid to notice that they are supporting more
redistribution than they wish, if they are tossed a few crumbs. And why worry about cost? As
Mr.
Micawber said, "something will turn up."