Allen Porter Mendenhall

Archive for the ‘Libertarianism’ Category

Es buena la Decimocuarta Enmienda?

In America, American History, Arts & Letters, Austrian Economics, Historicism, History, Humanities, Jurisprudence, Law, Liberalism, Libertarianism, Nineteenth-Century America, Philosophy, The Supreme Court on February 18, 2015 at 8:45 am

Allen 2

El artículo original se encuentra aquí. Traducido del inglés por Mariano Bas Uribe.

Pocas cosas dividen a los libertarios como la Decimocuarta Enmienda de la Constitución de Estados Unidos. Gene Healy ha observado que “Liberales clásicos de buena fe se han encontrado en ambos lados de la discusión”.

Por un lado están los que alaban la enmienda por evitar el poder de los estados para prejuzgar, dirigir, regular o usar fuerza de cualquier tipo para imponer leyes discriminatorias sobre sus ciudadanos. Por el otro están los que, aunque reconozcan la naturaleza problemática de las malas conductas y los actos inmorales del estado, no están dispuestos a consentir la transferencia de poder de los estados al gobierno federal, y en particular al poder judicial federal.

La división se reduce a las visiones del federalismo, es decir, al equilibrio o separación de los gobiernos estatales y nacional.

Las secciones primera y quinta de la Decimocuarta Enmienda son las más polémicas. La Sección Uno incluya la Cláusula de Ciudadanía, la Cláusula de Privilegios o Inmunidades, la Cláusula de Proceso Debido y la Cláusula de Igual Protección y la Sección Cinco otorga al Congreso la autoridad para aplicar legislativamente la enmienda. Estas disposiciones han dado mayores poderes al gobierno nacional, permitiendo a los tribunales federales a hacer que los estados cumplan las leyes federales con respecto a ciertos derechos (o supuestos derechos) individuales.

El Tribunal Supremo de Estados Unidos, en Barron v. Baltimore (1833), sostuvo que la Declaración de Derechos (las primeras diez enmiendas a la Constitución de EEUU) obligaban solo al gobierno federal y no a los gobiernos estatales. Mediante la Decimocuarta Enmienda, que fue ratificada oficialmente en 1868, el Tribunal Supremo de Estados Unidos y los tribunales federales inferiores han “incorporado” gradualmente la mayoría de las disposiciones de la Declaración de Derechos para aplicarlas contra los estados. Así que el gobierno federal se ha empoderado para hacer que los gobiernos estatales cumplan disposiciones que originalmente solo pretendían restringir los abusos federales.

Si el gobierno federal fuera el único o el mejor mecanismo para reducir el tipo de discriminación y violaciones de derechos prohibidos por la Decimocuarta Enmienda, esta sería bienvenida y aceptada. Pero no es el único correctivo concebible y, aparte, ¿no es contraintuitivo para los libertarios aplaudir y defender un aumento tanto en el ámbito como en el grado del poder federal, incluso si ese poder, en algunas ocasiones, haya producidos resultados admirables?

En contextos no relacionados con la Decimocuarta Enmienda, casi nunca resulta polémico para los libertarios promover remedios no gubernamentales, locales o descentralizados, para leyes y prácticas injustas y discriminatorias. A menudo se alega que la industria y el comercio y la simple economía son mejores mecanismos para reducir el comportamiento discriminatorio, ya se base en raza, clase, sexo, género o lo que sea, que la fuerza del gobierno. Aun así, frecuentemente esos libertarios que hacen sonar las alarmas acerca de las aproximaciones gubernamental, federal y centralizada de la Decimocuarta Enmienda a las leyes y prácticas discriminatorias son tratados de forma poco sincera, en lugar de con argumentos, como defensores de aquellas leyes y prácticas, en lugar de como oponentes por principio de las reparaciones federales centralizadas para daños sociales.

Cualquier debate sobre la Decimocuarta Enmienda debe ocuparse de la validez de esta aprobación. Durante la Reconstrucción, la ratificación de la Decimocuarta Enmienda se convirtió en una condición previa para la readmisión en la Unión de los antiguos estados confederados. Healy ha llamado a esto “ratificación a punta de bayoneta”, porque, dice, “para acabar con el gobierno militar, se obligó a los estados sureños a ratificar la Decimocuarta Enmienda”. La condición natural de esta reunificación contradice la afirmación de que la Decimocuarta Enmienda fue ratificada por un pacto mutuo entre los estados.

Los jueces federales consideran irrelevante el propósito de la enmienda

En 1873, el juez Samuel F. Miller, junto con otros cuatro jueces, sostuvo que la Decimocuarta Enmienda protegía los privilegios e inmunidades de la ciudadanía nacional, no la estatal. El caso afectaba a regulaciones estatales de mataderos para ocuparse de las emergencias sanitarias que derivaban de sangre animal que se filtraba en el suministro de agua. El juez Miller opinaba que la Decimocuarta Enmienda estaba pensada para ocuparse de la discriminación racial contra los antiguos esclavos en lugar de para la regulación de los carniceros:

Al acabar la guerra [de Secesión], los que habían conseguido restablecer la autoridad del gobierno federal no se contentaron con permitir que esta gran ley de emancipación se basara en los resultados reales de la contienda o la proclamación del ejecutivo [la Declaración de Emancipación], ya que ambos podían ser cuestionados en tiempos posteriores, y determinaron poner estos resultado principal y más valioso en la Constitución de la unión restaurada como uno de sus artículos fundamentales.

Lo que dice el juez Miller es que el significado y propósito de la Decimocuarta Enmienda (proteger y preservar los derechos de los esclavos liberados) se desacredita cuando se usa para justificar la intervención federal en los asuntos económicos cotidianos de un sector estatal concreto. La regulación estatal de los mataderos de animales no es una opresión del mismo tipo o grado que la esclavitud de gente basada en su raza. Argumentar otra cosa es minimizar la gravedad de la ideología racista.

El juez Miller reconocía que la regulación estatal en cuestión era “denunciada no solo por crear un monopolio y conferir privilegios odiosos y exclusivos a un pequeño número de personas a costa de una buena parte de la comunidad de Nueva Orleáns”, la ciudad afectada por los mataderos en cuestión, sino asimismo como una privación del derechos de los carniceros a ejercitar su profesión. Sin embargo, el juez Miller no creía que el gobierno federal tuviera derecho bajo la Constitución a interferir con una autoridad que siempre se había concedido a gobiernos estatales y locales.

Habiendo establecido al alcance limitado de la cláusula de privilegios o inmunidades en los Casos de los mataderos, el Tribunal Supremo acudió posteriormente a la Cláusula de Igual Protección y la Cláusula del Proceso Debido para echar abajo leyes bajo la Decimocuarta Enmienda. Pero el Tribunal Supremo no se ha detenido ante las leyes estatales: ha usado la Cláusula de Igual Protección y la Cláusula del Proceso Debido como pretexto para regular a ciudadanos y empresas privadas. La Decimocuarta Enmienda, que pretendía reducir la discriminación, se ha usado, paradójicamente, para defender programas de acción afirmativa que discriminan a ciertas clases de personas.

Ceder el poder a los jueces federales no les predispone a la libertad. Como la Sección Cinco de la Decimocuarta Enmienda permite al Congreso aprobar enmiendas o leyes que traten de infracciones estatales a la libertad individual, no es necesario ni constitucionalmente sensato que el poder judicial federal asuma ese papel. Los miembros del Congreso, al contrario que los jueces federales que disfrutan del cargo vitaliciamente, son responsables ante los votantes en sus estados y por tanto es más probable que sufran por su infidelidad a la Constitución.

A nivel conceptual, además, parece extraño que los libertarios defiendan internamente lo que condenan en relaciones exteriores, a saber, la doctrina paternalista de que un gobierno central más poderoso tendría que usar su músculo para obligar a cumplir a unidades políticas más pequeñas.

El legado de la enmienda

¿Ha generado resultados constructivos la Decimocuarta Enmienda? En muchas áreas, sí. ¿Son deplorables algunas de las ideologías contra las que se ha dirigido? En muchos casos, sí. ¿Eran malas las normas contra el mestizaje, las normas de segregación escolar y las normas prohibiendo a los afro-americanos actuar como jurados? Sí, por supuesto. Sin embargo no se deduce que solo porque algunos casos bajo la Decimocuarta Enmienda hayan invalidado estas malas leyes, esta sea necesaria o incondicionalmente buena, especialmente a la vista de la pendiente resbaladiza de precedentes que con el tiempo distancian a las normas de su aplicación pretendida. “Si los tribunales empiezan a usar la Decimocuarta Enmienda para aplicar derechos naturales libertarios”, advierte Jacob Huebert en Libertarianism Today, “no sería más que un pequeño paso para que empezaran a usarla para aplicar derechos positivos no libertarios”.

Intelectuales de la izquierda como Erwin Chemerinsky, Charles Black, Peter Edelman y Frank Michelman han defendido la protección y aplicación de “derechos de subsistencia” bajo la Decimocuarta Enmienda. Estos incluirían los derechos a comida, atención sanitaria y salario mínimo proporcionados por el gobierno. Las leyes estatales que evitaran estos derechos (que no proporcionaran estas prestaciones sociales) se considerarían inconstitucionales; el ejecutivo federal aseguraría así que todo ciudadano de los estados transgresores reciba atención sanitaria, alimentos y una renta básica, todo subvencionado por los contribuyentes.

Estoy dispuesto a admitir no solo que en la práctica yo litigaría bajo las disposiciones de la Decimocuarta Enmienda para representar competente y éticamente a mi cliente (imaginar un sistema en el que el poder federal no esté tan atrincherado es inútil para litigantes en un sistema real en que el poder federal está profundamente arraigado), pero también que, en un mundo más ideal, podría haber otras formas menos deletéreas de luchar contra discriminación y violaciones de derechos que la Decimocuarta Enmienda. El taller de la actividad diaria no atiende abstracciones esperanzadas. No se puede deshacer un sistema de la noche a la mañana: los abogados deben actuar con las leyes que tienen disponibles y no pueden inventar otras nuevas para sus casos o agarrarse a una mera política. No si quieren tener éxito.

En ausencia de la Decimocuarta Enmienda, muchas personas y empresas con quejas válidas podrían no tener soluciones constitucionales. Sin embargo eso no significa que los términos y efectos de la Decimocuarta Enmienda sean incuestionablemente deseables o categóricamente buenos. Se pueden celebrar las victorias logradas mediante la Decimocuarta Enmienda mientras se reconoce que debe haber un modo mejor.

La Decimocuarta Enmienda no es en sí misma un bien positivo sino un animal peligroso a manejar con cuidado. Los libertarios como clase tienen una devoción manifiesta impropia a su funcionamiento. Necesitamos en su lugar un debate, abierto, honrado y colegiado acerca de los méritos y la función de esta enmienda, no sea que otras criaturas similares miren al futuro y a costa de nuestras amadas libertades.

 

Hayek, Statistics, and Trade-Cycle Theory

In Academia, Austrian Economics, Books, Economics, Essays, Humane Economy, Libertarianism, Philosophy, Western Philosophy on February 11, 2015 at 8:45 am

Allen 2

This essay first appeared here as a Mises Emerging Scholar article for the Ludwig von Mises Institute Canada.

Austrian economics is often caricatured and criticized because of its approach, or deliberate lack of an approach, to mathematical models, multivariable calculus, and econometrics. Attacks are leveled against Austrians such as Mises, Rothbard, and Kirzner for their failure or refusal to avail themselves of applied empirical research in their scholarship. The Austrian methodology most frequently targeted is praxeology.

It is not the purpose of this short article to refute these attacks or to explore their errors and merits. That has been done ably by others (see, for example, the series of debate-essays available here, here, here, and here). Nor does this article attempt to stand up for the deductive reasoning of praxeology or to defend its claims about a priori truths, a task better suited for a lengthy work of scholarship, not a short article. This piece instead asks one simple question: does Hayek’s early work on trade-cycle theory complicate stereotypes about the methods of Austrian economics or clarify the manner in which Austrians can and do approach economic theory? The answer, of course, is yes.

Hayek proposed that the purpose and function of trade cycle theory was strictly limited: it was “to explain how certain prices are determined” and “to state their influence on production and consumption.” Expanding trade cycle theory beyond that purpose and function was, he believed, fallacious. “Any attempt to forecast the trend of economic development,” he claimed, “or to influence it by measures based on an examination of existing conditions, must presuppose certain quite definite conceptions as to the necessary course of economic phenomena.” But economic development — and the trade cycle in particular — is too important and complex to be guided by mere suppositions regarding matters about which there is much disagreement.

That is precisely what was happening in the 1920s when statistical designs and methods were growing in popularity and replacing general equilibrium theory, away from which Hayek himself moved later in his career. Economists at this time were beginning to treat statistics as conditions or proxies for theory (and even as theories unto themselves) rather than as mechanisms for testing and verifying established theories such as basic deductive inference or feature-by-feature comparison of the natural rate of interest (i.e., “equilibrium”) with the existing market rate.

According to Hayek, empirical research either affirms or discredits given methodologies but does not introduce new theories to explain fluctuating trade cycles. Amassing statistics, he maintained, is not the same as adducing or formulating economic laws. Statistics are nevertheless useful because, he explains, “there can be no doubt that trade cycle theory can only gain full practical importance through exact measurement of the actual course of the phenomena it describes.” Statistics, however, will not cultivate theoretical excellence of a kind that should direct trade-cycle theory or the policies that flow from it.

Statistics are useful in the negative sense: they disprove and discredit theories rather than affirm or prove them. They are corroborative but not ultimate guides; they are useful only to the extent that they enable us to make accurate predictions about future conditions, e.g., “to infer from the comparative movements of certain prices and quantities an imminent change in the direction of those movements.” Once statistics are gathered, a theory must be extracted from them–-they create inferences to be studied and aggregated, not comprehensive theories to be canonized. That is why Hayek declares that the “value of statistical research depends primarily upon the soundness of the theoretical conceptions on which it is based.” Statistics can be made to prove different points, but only a theoretically sound approach to classifying and elucidating statistics will bring about reliable forecasts.

Correct business forecasting depends on correct theorizing; therefore, Hayek propounds, we must labor to attain correct theories, never settling with what we perceive to be complete knowledge. Traditional equilibrium theory is not enough for him because it does not adequately account for money, a commodity or medium of exchange whose very status as such depends on its wide use and general acceptance on the market, not to mention its ability to reflect the subjective values of producers and consumers. The production of money and the often arbitrary increase in its supply by banks distort the natural interest rate and call into question the usefulness of equilibrium theory in a money economy.

Hayek demonstrates in his early work on the trade cycle that statistics and theories can be interactive and participatory so long as the former isn’t treated as a substitute for the latter. Statistics alone aren’t pure math, of course, and the creation of economic simulacra in the form of models and diagrams can lead to the type of scientism — the privileging of data over theory — that Hayek decries. Math is a term for what is done with data already gathered; it refers to many topics of study but in this context to the deductive and systematic study of facts and figures and their observable patterns to arrive at true concepts and accurate measurements regarding the concrete conditions of our phenomenal world. So understood, math is not the ultima ratio but an indispensable tool, not an end but a means to an end. Only from this premise does Hayek’s trade-cycle theory become fully comprehensible, and although his paradigms of trade-cycle theory and equilibrium evolved over time, his foundational approach to the role of statistics and theories remained crucial to his thinking.

_____

Note: Quotations come from F.A. Hayek, Prices and Production and Other Works: F.A. Hayek on Money, the Business Cycle, and the Gold Standard. Edited with an Introduction by Joseph T. Salerno. Auburn, Alabama: Ludwig von Mises Institute, 2008.

“Winston Churchill and the American Civil War,” by Miles Smith IV

In American History, Arts & Letters, Books, Britain, Conservatism, Economics, Essays, History, Humanities, Libertarianism, Nineteenth-Century America, Slavery, Southern History, The South on February 4, 2015 at 8:45 am

Miles Smith

Miles Smith IV is a visiting assistant professor at Hillsdale College and a historian of the Old South and Atlantic World. He took his B.A. from the College of Charleston and holds a Ph.D. in History from Texas Christian University. He is a native of Salisbury, North Carolina.

Last week saw the alignment of a peculiar set of anniversaries: The Fiftieth anniversary of Churchill’s death, the seventieth of the liberation of Auschwitz by the Soviet Army, and the 208th birthday anniversary of Robert E. Lee. Sir Winston Leonard Spencer-Churchill died in 1965. One century earlier General Robert E. Lee surrendered the Army of Northern Virginia to his Federal counterpart U.S. Grant. Churchill and Lee enjoyed widespread acclaim for their conduct—Lee in the late nineteenth and both he and Churchill in the latter half of the twentieth century. In recent years deconstructing both men enjoyed being the vogue of both academic and popular commentators. Both Churchill and Lee lived their lives as traditionalists. Neither embraced the social or moral innovation of their own eras. Modern commentators degrade both for their seemingly reactionary ideals. Unsurprisingly, Churchill adored Lee (and Abraham Lincoln as well). A recent historian opined that Lee’s “tragic flaw” was that he upheld the genteel values of eighteenth century Virginia “in a society that left older ideals of nobility and privilege behind.” One might grant that Lee’s aristocratic and heavy-handed slaveholding would understandably guarantee him a fair share of detractors in the early twentieth century, but this commentator offered as his reason for deconstructing Lee a calamitous rationale:

In the long run, Lee’s decision to follow Virginia out of the Union and resign his commission from the US Army further reveals his eighteenth century sensibilities which emphasize state over country and a parochial interest in defending home and family rather than one’s nation. In choosing loyalty to his state over loyalty to his country, Lee ensured that his destiny would be tainted by defeat and the specter of treason.

The disturbing notion that one’s parochial interest in defending his home and family constitutes a “fatal flaw” ultimately saw its hellish culmination in the totalitarian nationalist regimes of the twentieth century. It was Lee’s very cultured localism, tragically tinged as it was with slaveholding, that endeared him to Winston Churchill.[1]

Before Winston Churchill assumed the premiership of the United Kingdom and before he battled the nationalist brutes ruling Germany and Italy, he wrote history. In History of the English Speaking Peoples: The Great Democracies, the fourth volume of his history of the Anglosphere, his view of American history reflected a patrician education and disposition. Never comfortable in the twentieth century, Churchill kept the values of a bygone Victorian Era well into the middle of the twentieth century. In Lee he found a similarly anachronistic gentleman of the eighteenth century living in the nineteenth. Churchill wrote that Lee’s “noble presence and gentle, kindly manner were sustained by religious faith and an exalted character.” He “weighed carefully, while commanding a regiment of cavalry on the Texan border, the course which duty and honour would require from him.” Churchill overstated Lee’s antipathy towards slavery but nonetheless seized on the Virginian’s conservative Whiggish politics. Lee knew secession to be dangerous and ill-advised “but he had been taught from childhood that his first allegiance was to the state of Virginia.” Churchill found Lee’s Old South an admirable but flawed reflection of British gentry. “There was,” said Churchill, “a grace and ease about the life of the white men in the South that was lacking in the bustling North. It was certainly not their fault that these unnatural conditions had arisen.” Churchill’s denotation of white men underscores his innate humanity. White men, he knew, built their civilization on the backs of enslaved people held in human bondage. “The institution of negro slavery,” Churchill knew, “had long reigned almost unquestioned.” Upon the basis of slavery “the whole life of the Southern states had been erected.” Churchill saw a “strange, fierce, old-fashioned life. An aristocracy of planters, living in rural magnificence and almost feudal state, and a multitude of smallholders, grew cotton for the world by slave-labour.” Churchill’s empathy for the planter class stemmed from his willingness to conceive them as a class that “ruled the politics of the South as effectively as the medieval baronage had ruled England.” Southerners who by varying degrees colluded with the capitalist system became feudal agrarians and misplaced Englishmen in Churchill’s romantic imagination. [2]

Southerners engaged in the capitalist system in the antebellum era. Not all southerners were equally capitalist, however, and the Whig planters of Mississippi and Louisiana embraced the economic, expansionistic, and modernizing nationalism of the United States in a way that horrified old planters in Virginia and Carolina. Nonetheless, the Old aristocratic Anglo-American planter communities provided Churchill with set pieces as he wrote his histories. Of Lee, Churchill somberly wrote that he “wrestled earnestly with his duty” during the secession crisis. “By Lincoln’s authority he was offered the chief command of the great Union army now being raised. He declined at once…” The immediacy of Lee’s refusal supplied Churchill with a heroically long-suffering but duty-bound Anglophone hero. Churchill made much of how Lee resigned, “and in the deepest sorrow rode across the Potomac bridge for Richmond. Here he was immediately offered the chief command of all the military and naval forces of Virginia.” Lee’s decision, thought Churchill, seemed beautiful and tragic. “Some of those who saw him in these tragic weeks, when sometimes his eyes filled with tears, emotion which he never showed after the gain or loss of great battles, have written about his inward struggle. But there was no struggle; he never hesitated.” Lee’s choice, declared Churchill, “was for the state of Virginia. He deplored that choice [and] foresaw its consequences with bitter grief; but for himself he had no doubts at the time, nor ever after regret or remorse.” Writing in 1858, Lee appeared as a forerunner of Churchill himself: warning of the disaster befalling England, but fighting determinedly when the conflict came. [3]

Sensitive to the political differences between Imperial Britain and the United States, Churchill nonetheless tried to make sense of the American Civil War and its aftermath. Churchill saw that “Radical vindictiveness” in Republican ranks “sprang from various causes. The most creditable was a humanitarian concern for the welfare of the negro.” Belief in the God-given humanity of African Americans was “shared only by a minority.” Churchill believed that “more ignoble motives were present in the breasts of such Radical leaders as Zachariah Chandler and Thaddeus Stevens.” Because they loved “the negro less than they hated his master, these ill-principled men wanted to humiliate the proud Southern aristocracy, whom they had always disliked, and at whose door they laid the sole blame for the Civil War.” But Churchill argued that “there was another and nearer point.”

The Radicals saw that if the negro was given the vote they could break the power of the Southern planter and preserve the ascendancy over the Federal Government that Northern business interests had won since 1861. To allow the Southern states, in alliance with Northern Democrats, to recover their former voice in national affairs would, the Radicals believed, be incongruous and absurd. It would also jeopardise the mass of legislation on tariffs, banking, and public land which Northern capitalists had secured for themselves during the war. To safeguard these laws the Radicals took up the cry of the negro vote, meaning to use it to keep their own party in power.

Churchill conceived of the Civil War from a perspective of a Briton deeply suspicious of the effects of modernizing industrial nationalism. His best known Liberal biographer, Lord Jenkins, painted him as a champion of Free-trade economic libertarianism and of workers as well. William Manchester, a far more conservative biographical voice, likewise understood Churchill as essentially a Free-trader whose conservatism remained confined to foreign policy. Free-trade economic views never allowed Churchill to entirely embrace the relationship between corporation and nation that characterized post-Civil War American politics. [4]

Capitalism accompanied Free-trade in Churchill’s mind, and he affirmed capitalism in his ideals about society. But he likewise displayed antipathy for the wedding of corporation and nation that followed the American Civil War. Of the captains of industry he wrote that “Carnegie and Rockefeller, indeed, together with Morgan in finance and Vanderbilt and Harriman in railroads, became the representative figures of the age,” when compared to the “colourless actors upon the political scene.” “Though the morality” of the captains of industry “has often been questioned, these men made industrial order out of chaos. They brought the benefits of large-scale production to the humblest home.” Still, Churchill saw the Gilded Age American Union as racked “by severe growing pains” and unrest. “There was much poverty in the big cities, especially among recent immigrants. There were sharp, sudden financial panics, causing loss and ruin, and there were many strikes, which sometimes broke into violence.” Most disturbing to Churchill the free trader, “Labour began to organize itself in Trade Unions and to confront the industrialists with a stiff bargaining power. These developments were to lead to a period of protest and reform in the early twentieth century.” Churchill’s deep ambivalence about the wedding of capitalism and nationalism led him the recognize “gains conferred by large-scale industry” but also to lament that “the wrongs that had accompanied their making were only gradually righted.”[5]

Churchill’s British perspective offered a nuanced perspective that stood outside the intemperate screeds of Lost Cause southerners, and the more numerous and far more influential hyper-nationalist hagiography devoted to the white northern liberators. Churchill understood that slavery constituted the great systemic evil of the nineteenth century United States and caused the Civil War. His libertarian proclivities left him unconvinced of the necessity of 800,000 dead. In this he prefigured agrarian Wendell Berry who noted in his essay “American Imagination and the Civil War” that a botched emancipation was far batter than no imagination. But Berry also noted that history demands that a botched emancipation be criticized for what was botched. David Goldfield, former president of the Southern Historical Association, declared in his America Aflame that his work was “neither pro-southern nor pro-northern. It is anti-war, particularly the Civil War.”[6]

To his credit, Abraham Lincoln regretted the Civil War’s violence in 1865 and subsequently proposed an expeditious readmission criterion for the seceded states, only to have it scuttled by Radical Republicans after his assassination. Unbeknownst to Lincoln, who genuinely seemed interested in restoring the status quo ante bellum, the war unleashed the ideological monstrosity of modern industrial nationalism on the American polity. Harry Stout recognized that industrial nationalism tarnished the war’s consequence of liberating African Americans from chattel slavery. Elliott West’s history of the Nez Perce War of 1877 posited the idea of a greater Reconstruction, whereby the Republican Party remade the entirety of the continental American polity in the image of white capitalistic, militaristic, Evangelistic Protestant nationalism. Native Americans stood in the way of the American nation, and the U.S. Army ruthlessly destroyed the last free Indian societies in the Far West. Societal transmutation on that scale necessitated violence in the name of the nation. Jackson Lears pointed out in his Rebirth of a Nation that racism on a societal scale (southern and northern) fed this nationalism driven by a political organization formally committed to black liberty. By 1900, four decades of almost uninterrupted Republican government turned the United States into an imperialistic nation-state. Though to a small degree mitigated institutionally in the United States by a lingering federalism, nationalism with its muscular industrial core eventually threw Europe into the nightmare of two world wars.[7]

Few American historians have offered an anti-nationalist vision of the Civil War. The camps seemed too rigidly defined for works such as Churchill’s to remain valid. Churchill’s vision of the American Civil War Era is at once not southern enough for Lost Cause partisans, nor is it sufficiently pro-northern for Neo-Abolitionists. Churchill saw the conflict as a tragedy. Nationalist historians and political philosophers generally counted the war a blessing; to think it a tragedy negated the benefits of union and emancipation. British Marxist Robin Blackburn exasperatedly asked why “a willingness on the part of the United States to admit the possibility that the war was not the best response” to secession or slavery was seen as condoning either.[8]

Conservative historians understandably co-opted Churchill into the pantheon of Anglo-American heroes committed to the maintenance of the Western World and to its transcendent expression of human liberty. Much of the resilience involved in Churchill revolves around the image of a nationalist military chieftain committed to Britain’s place in the world. That image is true—Churchill biographer Carlo d’Este argued that his subject was one of the humans truly born for war—but not complete. John Keegan once described Churchill as a true libertarian, and this seems an appropriate corrective given the multitude of remembrances published on this fiftieth anniversary of his passing.[9]

[1] Glenn W. LaFantasie, “Broken Promise,” Civil War Monitor 13 (Fall, 2014): 37

[2] Winston S. Churchill, A History of the English-Speaking Peoples Vol. 4: The Great Democracies.

[3] Churchill, Great Democracies.

[4] Roy Jenkins, Churchill: A Biography (New York: Farrar, Straus, & Giroux, 2001), 398-401; William Manchester, Last Lion: Winston Spencer Churchill, Visions of Glory (New York: Little & Brown, 1989), 361.

[5] Churchill, The Great Democracies.

[6] Wendell Berry, “American Imagination and the Civil War,” in Imagination in Place (Berkeley, CA: Counterpoint, 2010), 27; David Goldfield, America aflame: How the Civil War Created a Nation (New York: Bloomsbury, 2011).

[7] Elliott West, The Last Indian War: The Nez Perce Story (Oxford and New York: Oxford University Press, 2009); Jackson Lears, Rebirth of a Nation: The Making of Modern America (New York: HarperCollins, 2009).

[8] Robin Blackburn, “Why the Muted Anniversary? An Erie Silence,” CounterPunch (18th April 2011):

[9] Carlo d’Este, Warlord: A Life Winston Churchill at War, 1874-1945 (HarperCollins, 2008); John Keegan, Winston Churchill: A Life (New York: Penguin, 2002), 27.

Review of Damon Root’s “Overruled: The Long War for Control of the U.S. Supreme Court”

In American History, Arts & Letters, Book Reviews, Books, Judicial Activism, Judicial Restraint, Jurisprudence, Libertarianism on January 28, 2015 at 8:45 am

Allen 2

This review originally appeared here in the American Spectator.

The sounds coming from the echo chamber suggest that Damon Root’s new book Overruled: The Long War for Control of the U.S. Supreme Court has been an uncheckered success. On the book’s cover Randy Barnett declares it

a riveting account of the raging debate over the future of our Constitution between those who contend that judges must ‘defer’ to legislatures and those who view the judiciary as an equal branch of government whose mandate is to secure the rights and liberties of the people by holding government to its just powers.

Writing for the Volokh Conspiracy blog at the Washington Post, Ilya Somin praises the book as the “most thorough account of the libertarian-conservative debate over judicial review so far.”

In the Wall Street Journal Michael Greve critiques the obvious weaknesses in Root’s narrative — its oversimplification — with which, Greve says, “legal historians may quarrel.” But Greve accepts Root’s negative portrayal of Justices Oliver Wendell Holmes, Jr., Louis Brandeis, and Felix Frankfurter, notable expositors of the doctrine of judicial restraint. The trio, Greve claims, “had not the foggiest notion of the Constitution,” which they “loathed… as inimical to their vision of government by experts.”

Here’s a contrary opinion from a libertarian student of the law: Root’s book suffers from caricature. His approach pits essentialized binaries (what he calls “two competing visions”) against one another in a fight for the good that one binary allegedly represents. History is rich and complex and not simply or without consequence pressed into two-sided struggles. Root would have benefited from a more concerted effort to understand the range of perspectives and heuristics embraced by jurists across a spectrum of backgrounds and beliefs.

Root purports to tell a story “which stretches from the Civil War period to the present,” but the key players are just three people: Holmes, Robert Bork, and Justice Stephen Field. The first two represent the doctrine of judicial restraint that might send “the whole country straight to the devil”; the third man represents an “aggressive legal approach” that Root attributes to libertarianism. Root seeks to show how conservatives over the course of the twentieth century adopted a jurisprudence of restraint that was once the darling of progressives. The subtext is twofold: that today’s conservatives need to be told their legal theory derives from the left, and that current libertarian jurisprudents are part of a more dependable school of thought.

The problem is that the divide between libertarians and conservatives is not so clear in the legal context. In fact, many of both adhere to the basic tenets of originalism and textualism, although within those operative paradigms they may disagree. It’s also difficult to discern whether a judge is conservative or libertarian, since his job is to analyze constitutional provisions and statutes and prior decisions to determine what the law is, not what he wants it to be. A judge may be forced to rule against his political interests if the statutory authority is both unambiguous and constitutional; in such moments the judge has no power to overturn the will of the voters as manifest in legislation or to alter the Constitution.

The most devastating shortcoming of Overruled is its tendency to reduce complicated cases and figures to artless political categories. Root’s Holmes is a fictional type, a stock character, not the actual jurist of history. Look no further than Thomas Sowell for a libertarian — or someone often categorized as a libertarian — who champions Holmes’s jurisprudence rather than considering him an enemy. The real Holmes had much in common with F.A. Hayek, as Richard Posner has revealed in law review articles and in his book Law, Pragmatism, and Democracy.

Before Hayek, Holmes formulated his own version of “the knowledge problem,” maintaining that no one judge or group of judges should presume to understand the facts on the ground well enough to direct the goings on in local communities with disparate values and conflicting objectives. We learn the diverse preferences of citizens through the feedback mechanisms of the market and should not have them prescribed for us through the commands of judges and justices. That’s why Holmes deferred to state legislatures to, in his words, “prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several states.”

Root advocates an inversion of Holmes’s jurisprudence, for something loosely akin to rule by Platonic Guardians: put wise activist philosophers on the bench, he seems to say, and they can waive their magic wands to perform libertarian miracles. With such power and leeway, couldn’t they also do the opposite? Couldn’t they impose on us a scheme of “rights” — to subsistence or a basic income — that’s antithetical to the free market? Scholars on the left such as Erwin Chemerinsky, Charles Black, Peter Edelman, and Frank Michelman champion the same expansive approach that Root celebrates. Their goal, however, is to empower the judiciary to impose a statist agenda by regulating business and eradicating economic liberties.

If Root’s claim is true that libertarian jurisprudents are “the sworn enemies” of Holmes, then why has Posner — who’s no dummy — declared Holmes to be “liberal only in the nineteenth-century libertarian sense, the sense of John Stuart Mill and, even more, because more laissez-faire, of Herbert Spencer”? Posner goes further, suggesting that Holmes “made laissez-faire his economic philosophy.”

Holmes was influenced by Spencer and versed in Mill. It isn’t accurate to assert, as Root does:

Spencer was regarded as the late nineteenth century’s leading proponent of full-throated laissez-faire. That’s why Holmes cast him as a villain in his Lochner dissent.

For starters, Holmes did not cast Spencer as a villain; he simply stated that Spencer’s views on economics were irrelevant to the Fourteenth Amendment, which secured federal citizenship for former slaves and prohibited the states from abridging the privileges or immunities of that citizenship. In reality, Holmes’s assessments of Spencer were mixed, and the justice’s letters are sprinkled with references to him. He cited Spencer while developing a theory of torts. He read Spencer’s autobiography. He criticized Spencer less for his philosophy than for his style and idealism, saying, for instance, “He is dull. He writes an ugly uncharming style, his ideals are those of a lower middle class British Philistine.”

Louis Menand has written that Holmes’s “personal sympathies were entirely with the capitalists.” That seems right: he once jested that “if they could make a case for putting Rockefeller in prison I should do my part; but if they left it to me I should put up a bronze statue of him.” Nevertheless, Holmes was no libertarian. What libertarian would proclaim, “Taxes are what we pay for civilized society”? Just because he wasn’t a libertarian, however, doesn’t mean he offered no good insights.

Holmes read Adam Smith shortly before writing his dissent in Abrams v. U.S., in which he trumpeted that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This dissent has been dubbed “libertarian” by so many commentators that listing them all would take up the space of this entire review. Surprisingly, Root mentions Holmes’s affirmance of the conviction of Eugene Debs under the Espionage Act of 1917 but fails to address this more famous dissent, which doesn’t square with Debs’s case.

It’s possible to attack Holmes shrewdly, without raw polemics that skip over inconvenient facts. David Bernstein’s Rehabilitating Lochner does that, condemning the ideas and not the man who held them. Only the cartoonish cover of Bernstein’s book, which depicts Holmes being punched out by Justice Wheeler Peckham in a boxing ring, is unfair to Holmes.

Whether Bork can be easily lumped together with Holmes is another matter. Bork called Holmes’s dissent in Lochner “flawed,” even though he agreed with most of it. He decried Holmes’s marketplace metaphor in Abrams as “foolish and dangerous.”

Root’s book may appeal to already-within-the-pale libertarian readers but won’t interest many beyond that audience. That’s probably a good thing. The truth is that judicial restraint and judicial activism are not palpably partisan creeds that can be readily summarized or easily illustrated. Labeling them “conservative” or “libertarian” is not conclusive as to their substance. Judges with wildly divergent worldviews have pushed the limits of their authority to reach their desired result in certain cases.

In the book’s opening pages, Root asserts that Elena Kagan, who claimed in her confirmation hearings that the political branch, not the judiciary, was the proper mechanism for dispensing with bad laws, “had placed herself squarely within a long and venerable legal tradition that seeks to give the government wide control over regulatory affairs while simultaneously preventing most interference from the courts.” This is missing the point. The courts, which Root wishes to vest with wider control over regulatory affairs, are not necessarily an outside check on our problematically powerful government; they are part of our problematically powerful government.

The federal judiciary is an arm of the state, plain and simple, peopled by unelected judges and justices who aren’t accountable to the people. It’s thus strange to see Root cast the judiciary as the people’s branch. If a member of Congress isn’t representing the people’s interest, the people can, excuse me, throw the rat out. Federal judges, on the other hand, must be impeached.

Root’s recommendation for a more robust judiciary makes sense only if most judges are libertarians. Most aren’t. Therein lies the case for judicial restraint.

The Classical Liberalism of Ralph Waldo Emerson

In America, American History, American Literature, Arts & Letters, Austrian Economics, Books, Economics, Emerson, Essays, Ethics, Historicism, History, Humane Economy, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Poetry, Politics, Property, Western Philosophy on January 7, 2015 at 8:45 am

Allen 2

“The less government we have, the better.”[1] So declared Ralph Waldo Emerson, a man not usually treated as a classical liberal. Yet this man—the Sage of Concord—held views that cannot be described as anything but classical liberal or libertarian. His is a pastoral libertarianism that glorifies nature as a source of insight and inspiration for those with a poetical sense and a prophetic vision.

None other than Cornel West, no friend of the free market, has said that “Emerson is neither a liberal nor a conservative and certainly not a socialist or even a civic republican. Rather he is a petit bourgeois libertarian, with at times anarchist tendencies and limited yet genuine democratic sentiments.”[2] “Throughout his career,” Neal Dolan adds, “Emerson remained fully committed to the Scottish-inflected Lockean-libertarian liberalism whose influence we have traced to his earliest notebooks.”[3] An abundance of evidence supports this view. Dolan himself has written an entire book on the subject: Emerson’s Liberalism (University of Wisconsin Press, 2009). Emerson extolled the “infinitude of the private man”[4] and projected a “strong libertarian-liberal emphasis”[5] in his essays and speeches. He was not an anarchist: he believed that “[p]ersonal rights, universally the same, demand a government framed on the ratio of the census” because “property demands a government framed on the ratio of owners and of owning.”[6] Nevertheless, he opined that “[e]very actual State is corrupt”[7] and that, if the people in a given territory were wise, no government would be necessary: “[W]ith the appearance of the wise man, the State expires. The appearance of character makes the State unnecessary.”[8] One need only look to one of Emerson’s most famous essays, “Self Reliance,” for proof of his libertarianism.

“Self‑Reliance” is perhaps the most exhilarating expression of individualism ever written, premised as it is on the idea that each of us possesses a degree of genius that can be realized through confidence, intuition, and nonconformity. “To believe your own thought, to believe that what is true for you in your private heart is true for all men,” Emerson proclaims, “that is genius.”[9]

Genius, then, is a belief in the awesome power of the human mind and in its ability to divine truths that, although comprehended differently by each individual, are common to everyone. Not all genius, on this view, is necessarily or universally right, since genius is, by definition, a belief only, not a definite reality. Yet it is a belief that leads individuals to “trust thyself”[10] and thereby to realize their fullest potential and to energize their most creative faculties. Such self‑realization has a spiritual component insofar as “nothing is at last sacred but the integrity of your own mind”[11] and “no law can be sacred to me but that of my nature.”[12]

According to Emerson, genius precedes society and the State, which corrupt rather than clarify reasoning and which thwart rather than generate productivity. “Wild liberty develops iron conscience” whereas a “[w]ant of liberty […] stupefies conscience.”[13] History shows that great minds have challenged the conventions and authority of society and the State and that “great works of art have no more affecting lesson for us than this. They teach us to abide by our spontaneous impression with good‑humored inflexibility then most when the whole cry of voices is on the other side.”[14] Accordingly, we ought to refuse to “capitulate to badges and names, to large societies and dead institutions.”[15] We ought, that is, to be deliberate, nonconformist pursuers of truth rather than of mere apprehensions of truth prescribed for us by others. “Whoso would be a man,” Emerson says, “must be a noncomformist.”[16]

Self‑Interest and Conviction

For Emerson as for Ayn Rand, rational agents act morally by pursuing their self‑interests, including self‑interests in the well‑being of family, friends, and neighbors, who are known and tangible companions rather than abstract political concepts. In Emerson’s words, “The only right is what is after my constitution, the only wrong what is against it.”[17] Or: “Few and mean as my gifts may be, I actually am, and do not need for my own assurance or the assurance of my fellows any secondary testimony.”[18] It is in everyone’s best interest that each individual resides in his own truth without selling off his liberty.[19] “It is,” in other words, “easy to see that a greater self-reliance must work a revolution in all the offices and relations of men.”[20]

It is not that self‑assurance equates with rightness or that stubbornness is a virtue; it is that confidence in what one knows and believes is a condition precedent to achieving one’s goals. Failures are inevitable, as are setbacks; only by exerting one’s will may one overcome the failures and setbacks that are needed to achieve success. Because “man’s nature is a sufficient advertisement to him of the character of his fellows,”[21] self-reliance enables cooperative enterprise: “Whilst I do what is fit for me, and abstain from what is unfit, my neighbor and I shall often agree in our means, and work together for a time to one end.”[22] Counterintuitively, only in total isolation and autonomy does “all mean egotism vanish.”[23]

If, as Emerson suggests, a “man is to carry himself in the presence of all opposition, as if everything were titular and ephemeral but he,”[24] how should he treat the poor? Emerson supplies this answer:

Do not tell me, as a good man did to‑day, of my obligation to put all poor men in good situations. Are they my poor? I tell thee, thou foolish philanthropist, that I grudge the dollar, the dime, the cent, I give to such men as do not belong to me and to whom I do not belong. There is a class of persons to whom by all spiritual affinity I am bought and sold; for them I will go to prison, if need be; but your miscellaneous popular charities; the education at college of fools; the building of meeting‑houses to the vain end to which many now stand; alms to sots; and the thousandfold Relief Societies;—though I confess with shame I sometimes succumb and give the dollar, it is a wicked dollar which by and by I shall have the manhood to withhold.[25]

These lines require qualification. Emerson is not damning philanthropy or charity categorically or unconditionally; after all, he will, he says, go to prison for certain individuals with whom he shares a special relationship. “I shall endeavor to nourish my parents, to support my family, to be the chaste husband of one wife,” he elaborates.[26] Emerson is, instead, pointing out, with much exhibition, that one does not act morally simply by giving away money without conviction or to subsidize irresponsible, unsustainable, or exploitative business activities.

It is not moral to give away a little money that you do not care to part with or to fund an abstract cause when you lack knowledge of, and have no stake in, its outcome. Only when you give money to people or causes with which you are familiar,[27] and with whom or which you have something at stake, is your gift meaningful; and it is never moral to give for show or merely to please society. To give morally, you must mean to give morally—and have something to lose. The best thing one can do for the poor is to help them to empower themselves to achieve their own ends and to utilize their own skills—to put “them once more in communication with their own reason.”[28] “A man is fed,” Emerson says, not that he may be fed, but that he may work.”[29] Emerson’s work ethic does not demean the poor; it builds up the poor. It is good and right to enable a poor man to overcome his conditions and to elevate his station in life, but there is no point in trying to establish absolute equality among people, for only the “foolish […] suppose every man is as every other man.”[30] The wise man, by contrast, “shows his wisdom in separation, in gradation, and his scale of creatures and of merits as wide as nature.”[31] Such separation and gradation are elements of the beautiful variety and complexity of the natural, phenomenal world in which man pursues his aims and accomplishes what he wills.

Dissent

Emerson famously remarks that a “foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”[32] Much ink has been spilled to explain (or explain away) these lines. I take them to mean, in context, that although servile flattery and showy sycophancy may gain a person recognition and popularity, they will not make that person moral or great but, instead, weak and dependent. There is no goodness or greatness in a consistency imposed from the outside and against one’s better judgment; many ideas and practices have been consistently bad and made worse by their very consistency. “With consistency,” therefore, as Emerson warns, “a great soul has simply nothing to do.”[33]

Ludwig von Mises seems to have adopted the animating, affirming individualism of Emerson, and even, perhaps, Emerson’s dictum of nonconformity. Troping Emerson, Mises remarks that “literature is not conformism, but dissent.”[34] “Those authors,” he adds, “who merely repeat what everybody approves and wants to hear are of no importance. What counts alone is the innovator, the dissenter, the harbinger of things unheard of, the man who rejects the traditional standards and aims at substituting new values and ideas for old ones.”[35] This man does not mindlessly stand for society and the State and their compulsive institutions; he is “by necessity anti‑authoritarian and anti‑governmental, irreconcilably opposed to the immense majority of his contemporaries. He is precisely the author whose books the greater part of the public does not buy.”[36] He is, in short, an Emersonian, as Mises himself was.

The Marketplace of Ideas

To be truly Emersonian you may not accept the endorsements and propositions here as unconditional truth, but must, instead, read Emerson and Mises and Rand for yourself to see whether their individualism is alike in its affirmation of human agency resulting from inspirational nonconformity. If you do so with an inquiring seriousness, while trusting the integrity of your own impressions, you will, I suspect, arrive at the same conclusion I have reached.

There is an understandable and powerful tendency among libertarians to consider themselves part of a unit, a movement, a party, or a coalition, and of course it is fine and necessary to celebrate the ways in which economic freedom facilitates cooperation and harmony among groups or communities; nevertheless, there is also a danger in shutting down debate and in eliminating competition among different ideas, which is to say, a danger in groupthink or compromise, in treating the market as an undifferentiated mass divorced from the innumerable transactions of voluntarily acting agents. There is, too, the tendency to become what Emerson called a “retained attorney”[37] who is able to recite talking points and to argue the predictable “airs of the bench”[38] without engaging the opposition in a meaningful debate.

Emerson teaches not only to follow your convictions but to engage and interact with others lest your convictions be kept to yourself and deprived of any utility. It is the free play of competing ideas that filters the good from the bad; your ideas aren’t worth a lick until you’ve submitted them to the test of the marketplace.

“It is easy in the world,” Emerson reminds us, “to live after the world’s opinion; it is easy in solitude to live after our own; but the great man is he who in the midst of the crowd keeps with perfect sweetness the independence of solitude.”[39] We can stand together only by first standing alone. Thus, “[w]e must go alone.”[40] You must “[i]nsist on yourself”[41] and “[s]peak the truth.”[42] You must channel your knowledge and originality to enable others to empower themselves. All collectives are made up of constituent parts; the unit benefits from the aggregate constructive action of motivated individuals. Emerson teaches us that if we all, each one of us, endeavor to excel at our favorite preoccupations and to expand the reach of our talent and industry, we will better the lives of those around us and pass along our prosperity to our posterity.

[1] Ralph Waldo Emerson, “Politics,” in Emerson: Essays & Poems (The Library of America, 1996), p. 567.

[2] Cornel West, The American Evasion of Philosophy (University of Wisconsin Press, 1989), p. 40.

[3] Neal Dolan, “Property in Being,” in A Political Companion to Ralph Waldo Emerson, edited by Alan M. Levine and Daniel S. Malachuk (The University Press of Kentucky, 2011), p. 371.

[4] Ralph Waldo Emerson, correspondence in The Journals and Miscellaneous Notebooks of Ralph Waldo Emerson, 16 vols., ed. William H. Gilman, Ralph H. Orth, et al. (Cambridge: Harvard University Press, 1960-1982). This quote comes from Vol. 7, p. 342.

[5] Neal Dolan, Emerson’s Liberalism (University of Wisconsin Press, 2009), p. 182.

[6] Emerson, “Politics,” at 560.

[7] Emerson, “Politics,” at 563.

[8] Emerson, “Politics,” at 568.

[9] Ralph Waldo Emerson, “Self-Reliance,” in Emerson: Essays & Poems (The Library of America, 1996), p. 259.

[10] Emerson, “Self-Reliance,” at 260.

[11] Emerson, “Self-Reliance,” at 261.

[12] Emerson, “Self-Reliance,” at 262.

[13] Emerson, “Politics” at 565-566.

[14] Emerson, “Self-Reliance,” at 259.

[15] Emerson, “Self-Reliance,” at 262.

[16] Emerson, “Self-Reliance,” at 261.

[17] Emerson, “Self-Reliance,” at 262.

[18] Emerson, “Self-Reliance,” at 263.

[19] Emerson, “Self-Reliance,” at 274.

[20] Emerson, “Self-Reliance,” at 275.

[21] Emerson, “Politics,” at 566.

[22] Emerson, “Politics,” at 567.

[23] Emerson, “Nature,” in Emerson: Essays and Poems, p. 10. The original reads “all mean egotism vanishes” rather than “vanish.”

[24] Emerson, “Self-Reliance,” at 262.

[25] Emerson, “Self-Reliance,” at 262-63.

[26] Emerson, “Self-Reliance,” at 273.

[27] “Consider whether you have satisfied your relations to father, mother, cousin, neighbor, town, cat, and dog,” Emerson says. Emerson, “Self Reliance,” at 274.

[28] Emerson, “Self-Reliance,” at 276.

[29] Emerson, “Nature,” at 13.

[30] Emerson, “Nature,” at 27.

[31] Emerson, “Nature,” at 27.

[32] Emerson, “Self-Reliance,” at 265.

[33] Emerson, “Self-Reliance,” at 265.

[34] Ludwig von Mises, The Anti-Capitalistic Mentality (Auburn: The Ludwig von Mises Institute, 2008), p. 51.

[35] Mises, The Anti-Capitalistic Mentality, at 51.

[36] Mises, The Anti-Capitalistic Mentality, at 51.

[37] Emerson, “Self-Reliance,” at 264.

[38] Emerson, “Self-Reliance,” at 264.

[39] Emerson, “Self-Reliance,” at 263.

[40] Emerson, “Self-Reliance,” at 272.

[41] Emerson, “Self-Reliance,” at 278.

[42] Ralph Waldo Emerson, “The Divinity School Address,” in Emerson: Essays & Poems (The Library of America, 1996), p. 77.

Literature and Liberty: Essays in Libertarian Literary Criticism

In Arts & Letters, Books, Economics, Essays, Humane Economy, Humanities, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, News Release, Philosophy, Politics, Western Civilization, Western Philosophy on December 17, 2014 at 8:45 am

Literature and Liberty

A Christmas gift available here at Rowman & Littlefield’s website, here at Amazon, here at ebay, and here at Barnes & Noble.   

The economic theories of Karl Marx and his disciples continue to be anthologized in books of literary theory and criticism and taught in humanities classrooms to the exclusion of other, competing economic paradigms. Marxism is collectivist, predictable, monolithic, impersonal, linear, reductive — in short, wholly inadequate as an instrument for good in an era when we know better than to reduce the variety of human experience to simplistic formulae. A person’s creative and intellectual energies are never completely the products of culture or class. People are rational agents who choose between different courses of action based on their reason, knowledge, and experience. A person’s choices affect lives, circumstances, and communities. Even literary scholars who reject pure Marxism are still motivated by it, because nearly all economic literary theory derives from Marxism or advocates for vast economic interventionism as a solution to social problems.

Such interventionism, however, has a track-record of mass murder, war, taxation, colonization, pollution, imprisonment, espionage, and enslavement — things most scholars of imaginative literature deplore. Yet most scholars of imaginative literature remain interventionists. Literature and Liberty offers these scholars an alternative economic paradigm, one that over the course of human history has eliminated more generic bads than any other system. It argues that free market or libertarian literary theory is more humane than any variety of Marxism or interventionism. Just as Marxist historiography can be identified in the use of structuralism and materialist literary theory, so should free-market libertarianism be identifiable in all sorts of literary theory. Literature and Liberty disrupts the near monopolistic control of economic ideas in literary studies and offers a new mode of thinking for those who believe that arts and literature should play a role in discussions about law, politics, government, and economics. Drawing from authors as wide-ranging as Emerson, Shakespeare, E.M. Forster, Geoffrey of Monmouth, Henry Hazlitt, and Mark Twain, Literature and Liberty is a significant contribution to libertarianism and literary studies.

Here’s what others are saying about Literature and Liberty:

By subtitling his book “Essays in Libertarian Literary Criticism,” Allen Mendenhall situates his work within an exciting methodological approach that is still off the radar screens of most academicians.  Not since the appearance of Edward Said’s Orientalism has a new literary approach invited us to read texts from a vantage point that jolts us into recognition of deep-seated ideological undercurrents that had previously remained unnoticed, or were simply passed over in silence. … It is a pleasure to now add Mendenhall’s deftly argued and passionately engaged volume to my list of recommended readings in libertarian scholarship.— Jo Ann Cavallo, Professor of Italian and Director of Undergraduate Studies, Columbia University

The much celebrated interdisciplinarity of contemporary criticism often amounts to nothing more than the absence of grounding in any traditional intellectual discipline, literary or otherwise. By contrast, Allen Mendenhall’s book is genuinely interdisciplinary. With solid credentials in law, economics, and literature, he moves seamlessly and productively among the fields. Covering a wide range of topics—from medieval history to postcolonial studies—Mendenhall opens up fresh perspectives on long-debated critical issues and raises new questions of his own.Paul A. Cantor, Clifton Waller Barrett Professor of English, University of Virginia

Freedom is all around us, but we sometimes need expert guides to help us see it. This is exactly what the brilliant Allen Mendenhall has done with his outstanding collection of essays on the way great literary fiction interacts with the themes of human liberty. In taking this approach, he is turning certain academic conventions on their heads, finding individualism and property rights where others look for social forces and collectivist imperatives. He helps us to have a rich and deeper appreciation of the libertarian tradition and its expanse beyond economics and politics.Jeffrey Tucker, CEO of Liberty.me, Distinguished Fellow at the Foundation for Economic Education, executive editor of Laissez-Faire Books, and Research Fellow at the Acton Institute

In Literature and Liberty, Allen Mendenhall aims to expand the marketplace of ideas in literary studies to include the entire spectrum of free-market theories. His goal is to break Marxism’s monopolistic hold over economic ideas in the study of imaginative literature. In his diverse chapters, he convincingly offers multiple transdisciplinary approaches to libertarian theory that literature scholars could adopt and build upon. Celebrating individualism and freedom in place of collectivism and determinism, Mendenhall focuses on commonalities and areas of agreement with respect to free-market theories. This approach increases the probability that the ideas in this ground-breaking volume will be widely embraced by thinkers from various schools of pro-capitalist thought, including, but not limited to Classical Liberalism, the Austrian School, the Judeo-Christian perspective, the Public Choice School, the Chicago School, the Human Flourishing School, and Objectivism.Edward W. Younkins, Professor of Accountancy and Business Administration and Executive Director of the Institute for the Study of Capitalism and Morality, Wheeling Jesuit University

Allen Mendenhall is both an attorney and an advanced student of literature. He also has an excellent knowledge of modern economics. … [A]s Mendenhall notes, non-Marxist treatments of economics and literature have been slow to develop. His new book, Literature and Liberty, goes far toward supplying this lack. It shows how much work can be done, and good work too, when law and literature are studied from the perspectives offered by a real competence in economic ideas. … Every part of the book shows the fully interdisciplinary character of Mendenhall’s understanding of his subjects and his large knowledge of the historical periods he treats. Only the rare reader will be unable to learn from Mendenhall. … The kind of interdisciplinary work that Mendenhall advocates is an exciting enterprise, and one hopes that he will have much more to do with it.— Stephen Cox, Professor of Literature, University of California, San Diego, and Editor in Chief, Liberty

Free Not to Vote

In America, Arts & Letters, Austrian Economics, Libertarianism, News and Current Events, Politics on October 22, 2014 at 8:45 am

Allen 2

This piece first appeared here as a Mises Emerging Scholar article for the Ludwig von Mises Institute Canada.

The 2014 U.S. midterm elections are coming up, and I don’t intend to vote. A vote is like virginity: you don’t give it away to the first flower-bearing suitor. I haven’t been given a good reason, let alone flowers, to vote for any candidate, so I will stay home, as well I should.

This month, my wife, a Brazilian citizen, drove from Auburn, Alabama, to Atlanta, Georgia, on a Sunday morning to cast her vote for the presidential election in Brazil. She arrived at the Brazilian consulate and waited in a long line of expatriates only to be faced with a cruel choice: vote for the incumbent socialist Dilma Rousseff of the Workers’ Party, for the socialist Aécio Neves of the Brazilian Social Democracy Party who is billed as a center-right politician, for the environmentalist socialist Marina Silva of the Socialist Party, or for any of the other socialist candidates who were polling so low that they had no chance of victory. Brazil maintains a system of compulsory voting in addition to other compulsory schemes such as conscription for all males aged 18.

Logan Albright recently wrote about the folly of compulsory voting, support for which is apparently growing in Canada. He criticized the hypocrisy of an allegedly democratic society mandating a vote and then fining or jailing those who do not follow the mandate. He also pointed out the dangers of forcing uneducated and uninformed citizens to vote against their will. This problem is particularly revealing in Brazil, where illiterate candidates have exploited election laws to run absurd commercials and to assume the persona of silly characters such as a clown, Wonder Woman, Rambo, Crazy Dick, and Hamburger Face, each of which is worth googling for a chuckle. The incumbent clown, by the way, was just reelected on the campaign slogan “it can’t get any worse.” Multiple Barack Obamas and Osama bin Ladens were also running for office, as was, apparently, Jesus. The ballot in Brazil has become goofier than a middle-school election for class president.

Even in the United States, as the election of Barack Obama demonstrates, voting has become more about identity politics, fads, and personalities than about principle or platform. Just over a decade ago, Arnold Schwarzenegger became the Governor of California amid a field of second-rate celebrities while a former professional wrestler (the fake and not the Olympian kind of wrestling) Jesse “the Body” Ventura was winding up his term as the Governor of Minnesota. Today comedian Al Franken holds a seat in the United States Senate. It turns out that Brazil isn’t the only country that can boast having a clown in office.

No serious thinker believes that a Republican or Democratic politician has what it takes to boost the economy, facilitate peace, or generate liberty. The very function of a career politician is antithetical to market freedom; no foolish professional vote-getter ought to have the power he or she enjoys under the current managerial state system, but voting legitimates that power.

It is often said, “If you don’t vote, you can’t complain.” The counterpoint is that voting ensures your complicity with the policies that elected politicians will enact. If you don’t vote, you lack complicity. You are not morally blameworthy for resisting the system that infringes basic rights or that offends your sense of justice and reason. You have not bestowed credibility on the government with your formal participation in its most sacred ritual. The higher the number of voters who participate in an election, the more legitimacy there is for the favored projects of the elected politicians, and the more likely those politicians are to impose their will on the populace by way of legislation or other legal means.

Refusing to vote can send a message: get your act together or we won’t turn out at the polling stations. Low voter turnout undermines the validity of the entire political system. Abstention also demonstrates your power: just watch how the politicians grovel and scramble for your vote, promise you more than they can deliver, beg for your support. This is how it ought to be: Politicians need to work for your vote and to earn it. They need to prove that they are who they purport to be and that they stand for that which they purport to stand. If they can’t do this, they don’t deserve your vote.

Abstention is not apathy; it is the exercise of free expression, a voluntary act of legitimate and peaceful defiance, the realization of a right.

There are reasonable alternatives to absolute abstention: one is to vote for the rare candidate who does, in fact, seek out liberty, true liberty; another is to cast a protest vote for a candidate outside the mainstream. Regardless, your vote is a representation of your person, the indicia of your moral and ethical beliefs. It should not be dispensed with lightly.

If you have the freedom not to vote, congratulations: you still live in a society with a modicum of liberty. Your decision to exercise your liberty is yours alone. Choose wisely.

The Immunity Community

In America, American History, Arts & Letters, Britain, History, Humanities, Jurisprudence, Justice, Law, Libertarianism, Philosophy on September 10, 2014 at 8:45 am

Allen 2

This piece first appeared here as a Mises Emerging Scholar article for the Ludwig von Mises Institute Canada.

The doctrine of sovereign immunity derives from the English notion that “the king can do no wrong” and hence cannot be sued without his consent. The purpose of this doctrine was, in England, from at least the Middle Ages until eighteenth century, to bar certain lawsuits against the monarch and his or her ministers and servants. With the rise of the English Parliament after the death of Elizabeth I, government officers and politicians sought to gain the power of immunity that the monarch and his or her agents had enjoyed.

In practice, however, English subjects were not totally deprived of remedies against the monarch or the government. The doctrine of sovereign immunity was not an absolute prohibition on actions against the crown or against other branches of government;[1] subjects could avail themselves of petitions of right or writs of mandamus, for instance, and monarchs fearful of losing the support of the people would often consent to be sued.

It was not until the monarchy had been demonstrably weakened that the doctrine of sovereign immunity began to be espoused with added urgency and enforced with added zeal. In the late eighteenth century, Sir William Blackstone intoned in his Commentaries on the Laws of England that the king “is not only incapable of doing wrong, but ever of thinking wrong: he can never mean to do an improper thing: in him is no folly of weakness.” These lines convert sovereign immunity into sovereign infallibility, a more ominous yet more dubious pretension.

Once the monarchy had been abolished altogether, the idea that the sovereign had to consent to be sued no longer held credence. As Louis L. Jaffe explains, “Because the King had been abolished, the courts concluded that where in the past the procedure had been by petition of right there was now no one authorized to consent to suit! If there was any successor to the King qua sovereign it was the legislature,” which, having many members subject to differing constituencies, was not as accountable as the monarch had been to the parties seeking to sue.[2]

The principle of sovereign immunity carried over from England to the United States, where most states have enshrined in their constitution an absolute bar against suing the State or its agencies and officers whose actions fall within the scope of official duties. The Eleventh Amendment to the U.S. Constitution likewise states that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This provision, which applies only in federal courts and which does not on its face prohibit a lawsuit against a state by a citizen of that same state, was adopted in response to the ruling in Chisholm v. Georgia (1793), a case that held sovereign immunity to have been abrogated and that vested in federal courts the authority to preside over disputes between private citizens and state governments.

Notwithstanding the complex issues of federalism at play in the Chisholm decision and in the Eleventh Amendment, the fact remains that the doctrine of sovereign immunity has been applied with widening scope and frequency since the states ratified the Eleventh Amendment in 1795. The U.S. Supreme Court has contributed to the doctrine’s flourishing. “The Supreme Court’s acceptance of sovereign immunity as constitutional principle,” explains one commentator, “depends on its determination of the intent of the Framers, which ignores a great deal of historical evidence from the time of the founding and relies primarily on a discredited account of the Eleventh Amendment first articulated in the 1890 case of Hans v. Louisiana.”[3]

State and federal courts have now built an impregnable wall of immunity around certain state and federal officers. The sovereign immunity that is enshrined in state constitutions is, in theory, not absolute because it is conferred only to certain agents and officers and does not prohibit lawsuits to enjoin such agents and officers from performing unconstitutional or other bad acts. In practice, however, the growth of qualified immunities, which is in keeping with the growth of government itself, has caused more and more agents of the State to cloak themselves in immunity.

Bus drivers, teachers, coroners, constables, high school coaches, doctors and nurses at university hospitals, security guards, justices of the peace, government attorneys, legislators, mayors, boards of education and health, university administrators, Indian reservations, prison guards and wardens, police officers and detectives, janitors in government facilities, licensing boards, tax assessors, librarians, railroad workers, government engineers, judges and justices, school superintendents and principals, towing companies, health inspectors, probation officers, game wardens, museum docents and curators, social workers, court clerks, dog catchers, contractors for public utilities, public notaries, tollbooth attendants, airport traffic controllers, park rangers, ambulance drivers, firefighters, telephone operators, bus drivers, subway workers, city council members, state auditors, agricultural commissioners—all have sought to establish for themselves, with mixed degrees of success, the legal invincibility that comes with being an arm of the state.

Yet the idea that “the king can do no wrong” makes no sense in a governmental system that has lacked a king from its inception. Its application as law has left ordinary citizens with limited recourse against governments (or against people claiming governmental status for the purpose of immunity) that have committed actual wrongs. When the government, even at the state level, consists of vast bureaucracies of the kind that exist today, the doctrine of sovereign immunity becomes absurd. If it is true that in nine states and in the District of Columbia the government employs more than 20% of all workers, imagine how many people are eligible to claim immunity from liability for their tortious conduct and bad acts committed on the job.

Local news reports are full of stories about government employees invoking the doctrine of sovereign immunity; few such stories find their way into the national media. Judge Wade McCree of Michigan, for instance, recently carried out an affair with a woman who was a party in a child-support case on his docket, having sexual intercourse with her in his chambers and “sexting” her even on the day she appeared as a witness in his courtroom. Although McCree was removed from office, he was immune from civil liability. An airport in Charleston, West Virginia, is invoking the doctrine of immunity to shield itself from claims that it contributed to a chemical spill that contaminated the water supply. Officer Darren Wilson may be entitled to immunity for the shooting of Michael Brown, depending on how the facts unfold in that investigation.

The U.S. Supreme Court once famously declared that the doctrine of sovereign immunity “has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”[4] A disestablishment is now in order. The size and scope of government is simply too massive on the state and national level to sustain this doctrine that undermines the widely held belief of the American Founders that State power must be limited and that the State itself must be held accountable for its wrongs. Friedrich Hayek pointed out that the ideal of the rule of law requires the government to “act under the same law” and to “be limited in the same manner as any private person.”[5] The doctrine of sovereign immunity stands in contradistinction to this ideal: it places an increasing number of individuals above the law.

If the law is to be meaningful and just, it must apply equally to all persons and must bind those who enforce it. It must not recognize and condone privileges bestowed upon those with government connections or incentivize bad behavior within government ranks. Sovereign immunity is a problem that will only worsen if it is not addressed soon. The king can do wrong, and so can modern governments. It’s time for these governments to be held accountable for the harms they produce and to stop hiding behind a fiction that was long ago discredited.

________

[1]See generally, Louis L. Jaffe, “Suits Against Governments and Officers: Sovereign Immunity,” 77 Harvard Law Review 1 (1963).

[2]Jaffe at 2.

[3]Susan Randall, “Sovereign Immunity and the Uses of History,” 81 Nebraska L. Rev. 1, 4 (2002-03).

[4]U.S. v. Lee, 106 U.S. 196, 207 (1882).

[5]F. A. Hayek, The Constitution of Liberty, Vol. 17 of The Collected Works of F.A. Hayek, ed. Ronald Hamowy(Routlege, 2011), p. 318.

Allen Mendenhall Interviews Edward W. Younkins

In American Literature, Arts & Letters, Austrian Economics, Book Reviews, Books, British Literature, Economics, Fiction, Humane Economy, Humanities, Imagination, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Novels, Philosophy, Politics on February 12, 2014 at 8:45 am
Edward W. Younkins

Edward W. Younkins

AM:       Thank you for taking the time to do this interview.  I’d like to start by asking why you chose to write Exploring Capitalist Fiction.  Was there a void you were seeking to fill?

EY:          The origins of this book go back to the Spring of 1992 when I began teaching a course called Business Through Literature in Wheeling Jesuit University’s MBA program.  Exploring Capitalist Fiction is heavily based on my lectures and notes on the novels, plays, and films used in this popular course over the years and on what I have learned from my students in class discussions and in their papers.

The idea to write this book originated a few years ago when one of Wheeling Jesuit University’s MBA graduates, who had taken and enjoyed the Business Through Literature course, proposed that I write a book based on the novels, plays, and films covered in that course.  I agreed as I concluded that the subject matter was important and bookworthy and that the book would be fun for me to write and for others to read.  I went on to select twenty-five works to include in the book out of the more than eighty different ones that had been used in my course over the years.  I have endeavored to select the ones that have been the most influential, are the most relevant, and are the most interesting.  In a few instances, I have chosen works that I believe to be undervalued treasures.

I was not intentionally trying to fill a void as there are a number of similar books by fine authors such as Joseph A. Badaracco, Robert A. Brawer, Robert Coles, Emily Stipes Watts, and Oliver F. Williams, among others.  Of course, I did see my evenhanded study of business and capitalism in literature as a nice complement and supplement to these works.

AM:       I assume that you’ll use this book to teach your own courses, and I suspect other teachers will also use the book in their courses.  Anyone who reads the book will quickly understand the reason you believe that imaginative literature and film have pedagogical value in business courses, but would you mind stating some of those reasons for the benefit of those who haven’t read the book yet?

EY:          The underpinning premise of this book and of my course is that fiction, including novels, plays, and films, can be a powerful force to educate students and employees in ways that lectures, textbooks, articles, case studies, and other traditional teaching approaches cannot.  Works of fiction can address a range of issues and topics, provide detailed real-life descriptions of the organizational contexts in which workers find themselves, and tell interesting, engaging, and memorable stories that are richer and more likely to stay with the reader or viewer longer than lectures and other teaching approaches.  Imaginative literature can enrich business teaching materials and provide an excellent supplement to the theories, concepts, and issues that students experience in their business courses.  Reading novels and plays and watching films are excellent ways to develop critical thinking, to learn about character, and to instill moral values.  It is likely that people who read business novels and plays and watch movies about business will continue to search for more of them as sources of entertainment, inspiration, and education.

AM:       Who are the intended audiences for your new book?

EY:          My target audiences include college students, business teachers, general readers, and people employed in the business world.  My summaries and analyses of twenty-five works are intended to create the feel of what it is like to work in business.  The premise of the book is that fiction can provide a powerful teaching tool to sensitize business students without business experiences and to educate and train managers in real businesses.  Studying fictions of business can provide insights to often inexperienced business students and new employees with respect to real-life situations.

In each of my 25 chapters I provide a sequential summary of the fictional work, interspersed with some commentary that highlights the managerial, economic, and philosophical implications of the ideas found in the work.  My emphasis is on the business applications of the lessons of particular novels, plays, and films.  This book highlights the lessons that an individual can take from each work and apply to his or her own life.  It is not literary analysis for its own sake.

I do not delve deeply into these novels, plays, and films in order to identify previously-covered and previously-uncovered themes in existing scholarship.  My book is essentially a study guide for people interested in becoming familiar with the major relevant themes in significant works of literature and film.  The book can also serve as a guide for professors who desire to expand their teaching approaches beyond the traditional ones employed in schools of business.

Of course, literary scholars can use my book as a starting point, catalyst, or reference work for their own in-depth scholarly studies of these and other works.  For example, I can envision a number of scholars, from a variety of viewpoints, contributing essays to book collections devoted to different literary works.  One possible collection that readily comes to mind would be devoted to David Mamet’s Glengarry Glen Ross.  Other candidates for potential collections might include Howell’s The Rise of Silas Lapham, Norris’s The Octopus, Dreiser’s The Financer, Cahan’s The Rise of David Levinsky, Lewis’s Babbitt, Miller’s Death of a Salesman, Hawley’s Executive Suite, Lodge’s Nice Work, Sterner’s Other People’s Money, among others.  It would be great if some of the contributing literary scholars to these volumes would come from pro-business, pro-capitalist thinkers such as Paul Cantor, Stephen Cox, Ryan McMaken, Sarah Skwire, Amy Willis, Michelle Vachris, and yourself.  As you know most literary critics are from the left.  Those mentioned above celebrate individualism and freedom in place of collectivism and determinism.

AM:       What can be learned from business fiction?

EY:          Fiction can be used to teach, explicate, and illustrate a wide range of business issues and concepts.  Many fictional works address human problems in business such as managing interpersonal conflict and office politics; using different styles of management; the potential loss of one’s individuality as a person tends to become an “organization man”; the stultifying effect of routine in business; the difficulty in balancing work life and home life; hiring and keeping virtuous employees; maintaining one’s personal integrity while satisfying the company’s demands for loyalty, conformity and adaptation to the firm’s culture; communication problems a business may experience; fundamental moral dilemmas; depersonalization and mechanization of human relationships; and so on.  Fictional works tend to describe human behavior and motivations more eloquently, powerfully, and engagingly than texts, articles, or cases typically do.  Literary authors and filmmakers are likely to develop and present ideas through individual characters.  They depict human insights and interests from the perspective of individuals within an organizational setting.  Reading imaginative literature and watching films are excellent ways to develop critical thinking and to learn about values and character.

Many novels, plays, and films are concerned with the actual operation of the business system.  Some deal directly with business problems such as government regulation, cost control, new product development, labor relations, environmental pollution, health and safety, plant openings and closings, tactics used and selection of takeover targets, structuring financial transactions, succession planning, strategic planning, the creation of mission statements, the company’s role in the community, social responsibility, etc.  Assessing fictional situations makes a person more thoughtful, better prepared for situations, and better able to predict the consequences of alternative actions.  Fiction can address both matters of morality and practical issues.  There are many fine selections in literature and film which prompt readers to wrestle with business situations.

Older novels, plays, and films can supply information on the history of a subject or topic.  They can act as historical references for actual past instances and can help students to understand the reasons for successes and failures of the past.  Older literature can provide a good history lesson and can help people to understand the development of our various businesses and industries.  These stories can be inspiring and motivational and can demonstrate how various organizations and managers were able to overcome obstacles, adapt, and survive.  Fictional works are cultural artifacts from different time periods that can be valuable when discussing the history of business.  Many fictional works present history in a form that is more interesting than when one just reads history books.

Imaginative literature reflects a variety of cultural, social, ethical, political, economic, and philosophical perspectives that have been found in American society.  Various images of businessmen have appeared in fictional works.  These include the businessman as Scrooge-like miser, confidence man, robber baron, hero, superman, technocrat, organization man, small businessman, buffoon, rugged individualist, corporate capitalist, financial capitalist, man of integrity, etc.

AM:       How will your teaching approach change in your Business Through Literature course now that you have published your own book on the subject?

EY:          In the past students in this course have read, analyzed, and discussed novels, plays, and films.  Each student prepared a minimum of 6 short papers (2000 words each) on the assigned works.  Grades were based on these papers and class discussions.

I am experimenting this semester using my book in the class for the first time.  I am requiring each student to take notes on each chapter of the book to help them in bringing up topics for class discussion and in participating in class discussions.  Each student is also required to prepare and turn in three essay questions on each chapter.  These are turned in before each relevant class.  Grades for the class are based on class participation and two essay tests.

AM:       Isn’t the reverse also true that literature students ought to study economics or at least gain an understanding of business from something besides imaginative literature and film, which tend not to portray capitalists in a favorable light?

EY:          It would definitely be beneficial for literature students to study classes in business areas such as management, marketing, accounting, and finance.  It would help them somewhat if they took a course or two in economics.  Unfortunately, almost all college-level economics courses are based on Keynesian economics.  I would encourage anyone who takes such courses to read and study Austrian economics in order to gain a more realistic perspective.

AM:       You’ve written a great deal about Ayn Rand, and the chapter on Atlas Shrugged is the longest one in your book.  Rand can be a divisive figure, even, perhaps especially, among what you might call “libertarians” or “free marketers” or “capitalists” and the like.  But even the people in those categories who reject Objectivism tend to praise Rand’s novels.  What do you make of that, and do you think there’s a lesson there about the novel as a medium for transmitting philosophy?

EY:          I suspect that there are a lot of people like me who value “novels of ideas.”  There have been many good philosophical novels but none have been as brilliantly integrated and unified as Atlas Shrugged.  Rand characterizes grand themes and presents an entire and integrated view of how a man should live his life.  Rand’s great power comes from her ability to unify everything in the novel to form an integrated whole.  The theme and the plot are inextricably integrated.  Rand is a superb practitioner of synthesis and unity whose literary style and subject are organically linked and fused to the content of her philosophy.  She unifies the many aspects of Atlas Shrugged according to the principles of reality.  People from the various schools of “free-market” thought are in accord in promoting an appropriate reality-based social system in which each person is free to strive for his personal flourishing and happiness.

AM:       I want to ask about Henry Hazlitt’s Time Will Run Back, the subject of chapter twelve of your book.  Why do you think this book has not received much attention?  It has been, I’d venture to say, all but forgotten or overlooked by even the most ardent fans of Hazlitt.  Is the book lacking something, or are there other factors at play here?

EY:          Hazlitt’s novel may not be “literary” enough for many people.  However, in my opinion, the author does skillfully use fiction to illustrate his teachings on economics.  I think that the book also has a good story line.  Economics professors tend to shy away from using it in their classes.  Some may be so quantitatively oriented that they cannot envision using a novel to teach economics.  Others may perceive the Austrian economics principles found in Time Will Run Back to not fit in with the Keynesian economics principles found in most textbooks (and of course they are right).

AM:       Thank you again for doing this interview.  All the best in 2014.

0739184261[1]

Edward W. Younkins. Exploring Capitalist Fiction:  Business Through Literature and Film. Lanham,

Maryland: Lexington Books, 2014.

 

The Invisible Hand in Popular Culture

In Academia, Arts & Letters, Austrian Economics, Book Reviews, Books, Economics, Fiction, Film, Humane Economy, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Philosophy, Rhetoric & Communication, Screenwriting, Television, Television Writing on January 22, 2014 at 8:45 am

Allen 2

This review originally appeared here in The Independent Review.

“Television rots your brain.” That’s a refrain many of us grew up hearing, but it isn’t true. So suggests Paul Cantor in The Invisible Hand in Popular Culture, his second book about American film and television.

Cantor has become a celebrity within libertarian circles. He is Clifton Waller  Barrett Professor of English and Comparative Literature at the University of Virginia and recently became a visiting professor at his alma mater, Harvard University.  What’s remarkable about his appointment at Harvard is that it is in the Department of Government, not the Department of English. That doesn’t surprise those of us familiar with his breadth of knowledge and range of interests.

Recognized as an interdisciplinary scholar, Cantor attended Ludwig von Mises’s seminars in New York City before establishing himself as an expert on Shakespeare.  Besides publishing extensively on literature of various genres and periods, he has been a tireless advocate for Austrian economics, even though Marxist theories and their materialist offshoots dominate his field. In 1992, the Mises Institute awarded Cantor the Ludwig von Mises Prize for Scholarship in Austrian Economics, and his work at the intersection of economics and literature resulted in Literature and the Economics of Liberty (Auburn, Ala.: Ludwig von Mises Institute, 2010), which he edited with Stephen Cox (while contributing nearly half of the book’s contents).

Like that work, The Invisible Hand in Popular Culture owes much to the theories of Friedrich Hayek, in particular the concept of spontaneous order. It is a reflection of spontaneous order that the most beloved films and television shows did not spring perfectly from the mind of some genius working in complete isolation.  Rather, they emerged out of the complex interactions between producers and consumers and the collaborative efforts of scores of diligent workers. Viewer feedback facilitated modifications and improvements to films and television, which  advanced in meliorative stages.

Hayek discusses spontaneous order to refute the belief that government intervention and central planning ought to force order onto the marketplace. Cantor discusses it to refute the belief that artistic creation stands outside of commercial exchange. Examining depictions of freedom and coercion in a wide variety of films and television shows, he highlights the disparity between elitist and populist understandings of American culture, which he links to “top-down” and “bottom-up” models of order, respectively. His position is that the popularity and artistic appeal of film and television appear to be proliferating despite the objections and insults levied by the cultural elite, who, it should be added with not a little irony, nonetheless probably watch a great deal of television.

Against the cultural elite and their promotion of patrician—and mostly  European—standards for the arts, Cantor maintains that the marketplace enables  creative and experimental forms of expression that aren’t so different from earlier aesthetic media such as the serialized novel or popular plays. He reminds us that “nineteenth century critics tended to look down on the novel as a popular form, thinking it hardly a form of literature at all,” and adds that it “was not viewed as authentic art, but rather as an impure form, filled with aesthetically extraneous elements  whose only function is to please the public and sell copies” (p. 7). This once “vulgar” medium has lately been celebrated as one of the highest and most impressive categories of art. The form and content of great American novels—whether by Twain or Cooper or Salinger or Pynchon—should remind us that popular novels have been elevated as canonical even though they have rejected the standards and conventions that highbrow critics insisted were necessary for a work to constitute “literature.” Twain and Cooper recognized that highbrow presuppositions and expectations for novels derived from influential Europeans, so they set out to forge a uniquely  American literature free from Old World constraints.

Because film and television are commercial, they allow ordinary Americans  (as opposed to academics and the cultural elite, including and especially the neo-Marxists) to determine aesthetic standards and trends by indicating what does and does not interest them. Authors and television producers, in turn, become responsive and attuned to the demands of their consumers; they become, in short, entrepreneurs who must struggle against the status quo, defy the odds, and push the limits of artistic acceptability.

The elite disparage this process and advocate for aesthetic criteria divorced from the tastes and pleasures of the general public. As Cantor explains, “Elitists who profess to believe in democracy nevertheless have no faith in common people to make sound decisions on their own, even in a matter as simple as choosing the films and television shows they watch” (p. xiv). The elite would have film and television removed from the marketplace, but without the marketplace there would be no film or television.

Films and television shows might just become the masterpieces of the future; they might have already provided us with canonical “texts.” It is too early to say whether they have contributed substance to what Matthew Arnold called “the best that has been thought and said.” Greatness, after all, takes time to ascertain.

Orwell, Dr. Johnson, and Hume adhered to the “test of time” measure of  greatness by which a work of art or literature is evaluated according to its ability to compete and survive in the literary marketplace over the course of generations.  This measure requires the sustained consensus of consumers as opposed to the esoteric judgments of elite critics. A work’s ability to attract vast and diverse audiences and to do so long after its production is what makes the work great.

It might seem odd to think of Cantor’s subjects—South Park and The X-Files, for  instance—alongside important literary works of the Western canon. And yet the groundlings who paid a penny to enter into the pit of the Globe Theatre, where they would stand and watch performances of Shakespeare’s plays, probably didn’t think they were witnessing greatness, either. Harold Bloom once said, “Cultural  prophecy is always a mug’s game,” and Cantor is wise not to prophesy about the enduring merit of any films or television shows. Cantor’s point is not that the products of film and television will be considered masterpieces one day, only that they might be.

For the record, I consider it extremely unlikely that South Park or The X-Files will achieve classic status, but I would not extend that speculation to such films as Casablanca or the Star Wars trilogy. Cantor himself takes pains to distinguish first-rate works from run-of-the-mill entertainment by invoking “traditional criteria for artistic excellence” (p. xxii). We should not take him to mean that film and television are media superior to that which came before them; instead, he considers them as substantially similar to their artistic antecedents, except that their  features signal an evolution in artistic preferences. The allure of art comes not from its alienation from popular culture, but from its ability to incorporate popular culture in ways that do not impede its power to speak beyond its moment.

To be sure, American film and television have produced an overwhelming amount of trash, but so did novel serialization. Not all novelists who published their work in contiguous installments in magazines and periodicals held the stature of Charles Dickens or Henry James or Herman Melville. Cantor points out that we forget about the thousands of bad novels from the Victorian era and extol only around one hundred novels from that period, which supposedly represents a  zenith in culture. Among the thousands if not millions of films and television shows that have been produced over the past century, perhaps a few will rival the works of Dickens, James, and Melville.

If Cantor weren’t such a generous and careful scholar, he might have become the bête noire of sophisticates and lambasted in the pages of The New Criterion for his embrace of the purportedly lowbrow. His command of economics and literary history, however, has spared him from such condemnation and even gained him a devoted following. To do justice to his latest book would require a more comprehensive treatment of his arguments about the figure of the “maverick” in film and television or about the value of collaborative work and coauthorship in  generating exceptional products. Yet these arguments demand more attention than a review can give.

The incomparable Cantor has blessed the libertarian movement with a literary  voice. He has expanded the study of Austrian economics into the fields that need it most. He himself is a maverick, reading and writing industriously to break up the habits of thought and monopolies on ideology that mark literary scholarship.  Would that we had more Cantors to show us how literature flowers when freedom flourishes. There is hope in the idea that artists can turn to the market to cultivate their talents and supply us with the arts we demand. No English department or cultural guardian can rob us of the entertainment that we enjoy.

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