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How Unelected Bureaucrats Became ‘Liberty’s Nemesis’

In America, Book Reviews, Books, Jurisprudence, Law on August 17, 2016 at 6:45 am

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This post originally appeared here in The Federalist.

Whether they realize it or not, Americans are subject to the soft despotism of administrative law. The common-law system of ordered liberty and evolutionary correction that the United States inherited from England is hardly recognizable in our current legal system. Bureaucratic administrative agencies that are unaccountable to voters now determine many of the rules and regulations that have palpable effects on the everyday lives of ordinary citizens.

In many important respects, we no longer live in a constitutional republic—we’re subject to the rule of an unaccountable administrative state. This the problem confronted in Liberty’s Nemesis: The Unchecked Expansion of the State, edited by Dean Reuter and John Yoo.

Although the U.S. Constitution does not expressly endow them with legislative prerogative, or even contemplate their current form and function, administrative agencies issue and enforce binding rules. They arrogate to themselves powers nowhere authorized by the Constitution or validated by historical Anglo-American experience. These agencies, moreover, govern quotidian activities once left to local communities and small businesses—everything from managing hospital beds to issuing permits to liquefied petroleum gas dealers. On both the state and federal level, administrative agencies have intruded upon local customs and practices and have imposed burdensome regulations on resistant groups, trades, neighborhoods, and civic associations.

Administrative agencies are creatures of legislation but directed by the executive branch, which has no constitutional authority to pass laws. Their powers derive from statutes that delegate the quasi-legislative authority to issue binding commands in specified contexts. Administrative agencies generally operate independently from Congress and the courts and possess discretionary rulemaking authority.

They conduct hearings and investigations and adjudicate disputes between parties. Some agencies are household names, such as the Federal Trade Commission and the Environmental Protection Agency; some are less known, especially within state government. For instance, state personnel boards manage employment disputes involving state employers and employees, and smaller agencies regulate all sorts of activity—from cosmetology and barbering to translation services and historical preservation efforts.

The justifying theory underlying the creation and existence of administrative agencies is that they consist of qualified experts in a specialized field. Whereas the legislature is made up of elected generalists who come and go, an agency is peopled by nonpartisan specialists with unique training and experience who hold permanent positions. Administrative agencies should thus be more reliable and efficient than legislative or executive bodies in promulgating or enforcing rules and regulations. Moreover, they should be isolated from political processes and partisan pressure. Yet this institutional independence that is touted as a virtue has in practice resulted in widespread unaccountability.

It’s axiomatic that an agency may not be sued without the consent of the state. Such consent, when given, is typically limited in scope so that any potential substantive liability is narrowed. Administrative proceedings only approximate the processes and protocols recognized in courts of law. An administrative adjudicatory forum seldom replicates or reflects the procedural and functional characteristics of a courtroom. When an administrative tribunal enters a final order, the non-prevailing party may seek redress through judicial review, but the tribunal’s decision carries a presumption of correctness on appeal—both on findings of fact and matters of law—except in rare circumstances when a statute prescribes otherwise.

F. A. Hayek warned about administrative agencies—and what he dubbed the “public administration movement”—in The Constitution of Liberty.

He explained that the public administration movement had adopted slogans about government efficiency “to enlist the support of the business community for basically socialist ends.” “The members of this movement,” he cautioned, “directed their heaviest attack against the traditional safeguards of individual liberty, such as the rule of law, constitutional restraints, judicial review, and the conception of a ‘fundamental law.’” Hayek then traced the history of public administration to show that “the progressives have become the main advocates of the extension of the discretionary powers of the administrative agency.”

Philip Hamburger’s Is Administrative Law Unlawful? (2014) echoed Hayek’s criticism that, in Hayek’s words, “the widespread use of [administrative] delegation in modern times is not that the power of making general rules is delegated but that administrative authorities are, in effect, given power to wield coercion without rule, as no general rules can be formulated which will unambiguously guide the exercise of such power.”

Hamburger reframed Hayek’s criticisms in deontological terms by suggesting that administrative law is not, in fact, law—it is inherently lawless. Hayek and Hamburger both make the compelling case that administrative agencies routinely undermine the rule of law, or the principle that the general rules of society apply equally to all citizens as well as the sovereign.

In addition to Hamburger, several recent books have charted the slow growth of administrative law in the United States. Chief among them are Jerry L. Mashaw’s Creating the Administrative Constitution: The Lost One Hundred Years of Administrative Law (2012), Joanna L. Grisinger’s The Unwieldy American State: Administrative Politics Since the New Deal (2012), and Daniel R. Ernst’s Tocqueville’s Nightmare: The Administrative State Emerges in America (2014). These studies are indispensable and together form a comprehensive history of how ordinary citizens succumbed to the supervisory powers of administrative regulators.

Liberty’s Nemesis follows in the wake of these rigorous works, though it is perhaps more polemical. The book includes essays by highly visible and influential figures who range from legal practitioners to politicians, academics to activists, jurists to jurisprudents. The book’s primary focus is on administrative agencies, but certain essays—such as former congressman Bob Barr’s discussion of threats to the Second Amendment or John Eastman’s concerns about same, sex marriage—widen the topical scope.

Reuter and Yoo have collaborated before. In 2011 they published Confronting Terror: 9/11 and the Future of American National Security, an edition that featured disparate essays by prominent conservatives and libertarians, some of whom have also contributed to Liberty’s Nemesis.

Reuter, who serves as vice president for the Federalist Society, has supplied the introduction to the book. His contribution is a primer on American civics with an emphasis on the subtle tyranny of administrative law. Yoo, a law professor at the University of California, Berkeley, who’s perhaps best known for authoring legal memoranda regarding torture and the War on Terror during the George W. Bush administration, offers a brief conclusion to the book that calls for conservatives to “recalibrate their revolution” by turning their activist energies against administrative agencies rather than Congress.

In my view, the most intriguing essays in the book belong to Jonathan H. Adler, Gerard V. Bradley and Robert P. George (coauthors), and Patrick Morrisey and Elbert Lin (also coauthors). Some subjects, such as Ronald A. Cass’s appraisal of the so-called Chevron doctrine, under which courts defer to the decisions of administrative agencies, may seem predictable in a text that assails administrative regulation. However, they are no less insightful or important for their predictability.

Other subjects include immigration, financial regulation, and campus speech. An edition with such diverse chapters defies simple summary and ready classification. Doing it justice in this space is impossible. When the authors of such wide-ranging chapters include sitting senators like Orrin Hatch and former commissioners of federal agencies like Harold Furchtgott-Roth, Daniel Gallagher, F. Scott Kieff, Maureen Ohlhausen, Troy Paredes, and Joshua Wright, the reviewer’s task becomes daunting if not impossible.

So permit me a few brief remarks about just three chapters and accept my general endorsement of the book as reason enough to buy it and read it in its entirety. I’ll start with Adler, who details, among other things, the manner in which the Obama administration exceeded the scope of its authority by delaying the implementation of the employer mandate found in the Patient Protection and Affordable Care Act, a.k.a. Obamacare. The first time his administration announced this delay was in a blog post.

Similar announcements followed from the Internal Revenue Service (which was under fire for the politicization of its activities) and the Treasury Department. Obamacare itself was silent as to any executive authority to waive the requirements of the employer mandate, which, as its name suggests, mandated the implementation of its terms. Ignoring that mandate, President Obama and his executive officers enjoy the unique distinction of being the first violators of the law they championed and swore to uphold. In light of the foregoing, Adler concludes that President Obama implemented Obamacare through “unlawful administrative action” carefully calculated to avoid Democratic losses in the 2014 midterm elections.

Bradley and George, for their part, argue the Obama administration has “remapped” religion and society by erasing (or at least by seeking to erase) religious exercise and expression from the public sphere while subjecting private religious exercise and expression to novel and intrusive regulation. Bradley and George argue the Obama administration is erasing religious exercise and expression from the public sphere. For example, the Obama administration promulgated rules that compel religious employers to subsidize not just contraception but abortifacients for their female employees. The exception to this requirement was crafted such that no religious institution could qualify to opt out. The Obama administration promulgated another rule that may effectively eliminate government contracts with religious-based humanitarian organizations that provide care and counseling for crisis pregnancies. Executive Order 13672, which became effective in April of last year, adds sexual orientation and general identity to the non-discrimination categories or classes under Title VII of the Civil Rights Act of 1964. The list could go on—and does go on in Bradley and George’s sustained critique.

Finally, Morrisey, and Lin present a firsthand perspective on the overreach of environmental regulations that have crippled the economy in West Virginia and Appalachia more generally. They target the Environmental Protection Agency, which used Section 112 of the Clean Air Act as a pretext for regulating power plants in West Virginia.

Morrisey is the current Republican attorney general of West Virginia, having defeated the five-term Democratic incumbent Darrell McGraw in 2012. Morrisey’s political rise in West Virginia, which coincided with the Republican takeover of that state’s government, has generated national attention in addition to speculation about his future in higher office.

The fresh-faced Lin, a graduate of Yale Law School, is the Solicitor General of West Virginia, making him the chief appellate lawyer for the state. His experience includes a stint in private practice in Washington DC as well as clerkships with Justice Clarence Thomas, Judge William (“Bill”) Pryor, and Judge Robert E. Keeton. Morrisey and Lin, who actually practice what they preach, give the following warning that sums up the message of the book: “The worst that can be done with respect to an overreaching federal agency is to simply accept it and allow it, through sheer inertia, to remake this country according to the preferences of a handful of unelected bureaucrats.”

Although the composition and character of the U.S. Supreme Court is undoubtedly the most important issue in the 2016 election because of the president’s power to appoint a successor to Justice Scalia—and possibly other justices nearing retirement—voters must also bear in mind the rapid and steady expansion of the administrative managerial state under President Obama. Conservatives now populate state legislatures in vast numbers; state attorneys general collaboratively have begun pushing back against federal agencies; state supreme courts have welcomed traditionalist jurisprudents who revere their state constitutions and the federalist system envisioned by the American Founders.

It will take a new kind of president to roll back the administrative state altogether. State resistance alone is no longer enough. Without any pressure from the executive branch, Congress will remain content to pass off touchy political decisions to administrative agencies, which, unlike politicians, cannot be voted out of power. Congress, in turn, can blame the agencies for any negative political consequences of those choices.

We may never recover the framework of ordered liberty that the Founding generation celebrated and enjoyed. But for the sake of our future, and to secure the hope of freedom for our sons and daughters, our grandchildren and their children, we must expose and undo the regulatory regime of administrative agencies. It’s our duty to do so.

Those concerned must applaud Reuter and Yoo for their efforts at publicizing the complex problems occasioned by administrative agencies. But there’s still much work left to do. Practical solutions will not come quickly or easily. Yet they’ll be necessary if we’re ever going to reverse course and remain a nation of promise and prosperity.

Make America Mobile Again

In America, American History, Arts & Letters, Book Reviews, Books, Humane Economy, Humanities, Law, Politics on August 10, 2016 at 6:45 am

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This review originally appeared here in The American Spectator.  Note that some of the references to the presidential election are now dated but were timely when this review was originally published.

This election season has proven that, regardless of who becomes the Democratic or Republic nominee for president, the American political landscape has been reshaped. Candidates expected to have a smooth path to their party’s nomination have met, instead, a bumpy road. The rise of Donald Trump and Bernie Sanders as viable candidates reflects the growing feeling among ordinary Americans that the system is rigged, that they’re stuck in conditions enabled and controlled by an amorphous cadre of elites from Washington and Wall Street.

Income inequality is higher today than it’s been in nearly a century. Middle and lower class citizens of other First World countries enjoy more economic mobility than do middle and lower class Americans. The United States has fallen behind managerial and quasi-socialist governments in Europe in empirical rankings of economic freedom. The gap between the so-called 1% and the rest of America is growing, and recent college graduates, saddled with student loan debt and poor job prospects, are financially behind where their parents were at the same age.

Things don’t look promising. But one law professor, F. H. Buckley of the freshly named Antonin Scalia Law School at George Mason University, outlines ways to repair structural, systemic burdens on the American economy. His new book, The Way Back, published today by Encounter Books, provocatively advocates for socialist ends by capitalist means.

Although the word socialism recalls revolution, stifled competition, attacks on private ownership, abolition of the price-system and sound economic calculation, hunger, mass-murder, off-brand goods and low-quality services, among other demonstrable horribles, Buckley has something less vicious in mind. By socialism, he does not mean a centralized government that replaces the market system with economic planning and state control of the means of production. His “socialism” is not socialism at all.

Leaving socialism undefined, he suggests that free-market economics (a term he avoids but implies) and the dismantling of the regulatory state will do more than actual socialism and its variants to lift people out of poverty and maximize their quality of life. The Left, in short, has asked the right questions about income inequality and economic mobility but supplied the wrong answers or solutions. “Sadly,” Buckley complains, “those who loudly decry income disparities often support policies which make things worse.”

It’s the aristocratic elites, in Buckley’s view, who benefit from mass bureaucracy, the welfare state, a broken immigration and public-school system, trade barriers, a flawed tax code, and a general decline in the rule of law. These unjust institutions, policies, and conditions, with their built-in advantages for a select few, cause and sustain economic immobility. They solidify the place of aristocrats — what Buckley also calls the New Class — at the top of the social stratum. Those with high levels of wealth game the system through special favors, government grants, shell companies, complicated tax schemes, offshore banking, and other loopholes designed to ensure that the 1% are excluded from the regulatory barriers imposed and administered by government at the expense of the 99%.

The aristocracy that Buckley targets is not the natural aristocracy celebrated by certain American Founders for its virtue and political disinterestedness. It’s an artificial aristocracy that has little to do with merit or talent. The Founders — probably all of them — would have been appalled by the likes of Bill and Hillary Clinton: figures who became multi-millionaires through partisan politics. The Clintons embody the new artificial aristocracy. They amassed their wealth by championing programs that have slowed economic mobility while purporting to do the opposite. The Founders, by contrast, believed that benevolent aristocrats would be free from economic pressure and thus would not succumb to the temptations to use government positions or privileges for personal gain.

The Founders would have cringed to learn that public service has become a vehicle to riches. For all his many faults, Donald Trump appeals to disenfranchised Americans because he declares he’s financed his own campaign and admits that a rigged system — exemplified by our federal bankruptcy laws — has worked in his favor. He knows the government system is unfair and claims he wants to change it.

“America was a mobile society for most of the twentieth century,” Buckley says, citing statistics and substantiating his claim with charts and graphs. Trump’s supporters no doubt long for those days of economic mobility that Buckley locates in the exuberant 1950s.

When Trump announces that he wants to make America great again, people stuck at the bottom of the rigid class divide respond with enthusiasm. On a subterranean level, they seem to be hoping that America can once again become a mobile society, a place where a lowly pioneering frontiersman like Abraham Lincoln (Buckley’s favored symbol of social and economic mobility) can rise from humble beginnings to become the President of the United States. Buckley believes that “the central idea of America, as expressed in the Declaration [of Independence], became through Lincoln the promise of income mobility and a faith in the ability of people to rise to a higher station in life.”

Class structure is more settled in America than in much of Europe. Yet America has always defined itself against the European traditions of monarchy, aristocracy, dynasty, and inherited privilege. Buckley states that “America and Europe have traded places.” The trope of the American Dream is about rising out of your received station in life to accomplish great things for yourself and your posterity. What would it mean if U.S. citizens were to envy, instead, the European Dream? What if America is now the country of privilege, not promise? If the American financial and economic situation remains static, we’ll learn the answers to these questions the hard way.

Perhaps the most interesting and unique feature of Buckley’s book is his embrace of Darwinian theory — including the genetic study of phenotypes and kin selection — to explain why American aristocrats combine to preserve their power and restrain the middle and lower classes. In short, people are hard-wired to ensure the survival of their kind, so they pass on competitive advantages to their children. “American aristocrats,” Buckley submits, “are able to identify each other through settled patterns of cooperation called reciprocal altruism.” People organize themselves into social groups that maximize the genetic fitness of their biological descendants. If certain advantages are biologically heritable, then “a country would have to adopt punitive measures to handicap the gifted and talented in order to erase all genetic earnings advantages.”

Eugenics measures were popular during the Progressive Era, before we learned about the horrors of Nazi genocide and eugenics, but surely the Left does not want to return to such inhumane and homicidal practices to realize their beloved ideal of equality. Yet Buckley reveals — more subtly than my summary suggests — that biological tampering is the only way for egalitarians to transform their utopian fantasies into a concrete reality.

To those who might point out that Buckley, a tenured law professor living in the handsome outskirts of D.C., is himself a member of this self-serving aristocracy, Buckley declares that he’s a traitor to his class. Without bravado or boast, he presents himself as the rare altruist who recognizes the net gains realized through reasonable cooperation among disparate groups.

Trump and Ted Cruz ought to have Buckley’s book on hand as they make their final case to the electorate before this summer’s convention. Buckley explains why conservatives, libertarians, and Republicans alike should care about economic mobility and inequality. By ignoring the problem of economic disparity, he warns, “the Republican establishment has handed the Democrats a hammer with which to pound it.” Buckley identifies the types of cronyism and economic barriers to entry that have caused social immobility and inequality. To resolve our troubles, he advocates “easy pieces of useful and efficient legislation” that he dubs his “wish list.”

The final section of his book describes this “wish list” and sketches what Americans can do to reinvigorate their economy and make their country mobile again. By facilitating educational choice and charter schools, streamlining the immigration system, curtailing prosecutorial overreach and the criminalization of entrepreneurship, and cutting back on the financial regulations, tax loopholes, and corporate laws that are calculated to benefit rather than police those at the top, Americans can bring back the conditions necessary for the proliferation of individual liberty and prosperity — or, in Buckley’s words, restore the promise of America.

Varieties of Emersonian Pragmatism: Synthesis in Justice Holmes

In Academia, America, American History, American Literature, Arts & Letters, Books, Creativity, Emerson, Historicism, History, Humanities, Literary Theory & Criticism, Literature, Nineteenth-Century America, Oliver Wendell Holmes Jr., Philosophy, Poetry, Pragmatism, Rhetoric, Scholarship on April 20, 2016 at 6:45 am

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There is a long tradition of scholarship regarding Emerson’s pragmatism. Among those who have written about Emerson’s pragmatism are Russell B. Goodman, Giles Gunn, Poirier, Cornel West, Joan Richardson, Levin, and James M. Albrecht. Even earlier Kenneth Burke noted that “we can see the incipient pragmatism in Emerson’s idealism” and that “Emerson’s brand of transcendentalism was but a short step ahead of an out-and-out pragmatism.”

Goodman analyzed Emerson as “America’s first Romantic philosopher,” the counterpart to Wordsworth, Coleridge, and Carlyle whose idealism would influence William James and later John Dewey and Stanley Cavell.

Gunn examined while contributing to the critical renaissance of American pragmatism in the 1990s; he suggested that Emerson cast a long shadow “at the commencement of the pragmatist tradition in America” and that Emerson belonged to a family of writers that included Henry James, Kenneth Burke, John Dewey, Frank Lentricchia, and others.

To reach this conclusion Gunn adopted a more diffuse definition of pragmatism that went beyond the philosophical tradition of Peirce, Dewey, George Herbert Mead, Sidney Hook, Morton White, Richard Bernstein, John McDermott, and Richard Rorty. He attended to aesthetically charged political texts presented not only by Emerson but also by W.E.B. DuBois, James Baldwin, Flannery O’ Connor, Elizabeth Hardwick, Poirier, Cornel West, Clifford Geertz, and Stanley Fish. Gunn left behind James’s “somewhat restricted focus on the nature of knowledge and the meaning of truth” and turned instead to literary and cultural works that affected social issues.

Gunn’s focus on the social indicates a debt to Dewey, and his valuation of Emerson must be considered in a Deweyian context. That Emerson is a pragmatist is somewhat implied or tacit in Gunn’s account; his discussion is not about what elements of Emersonian thought evidence pragmatism but about how Emerson influenced Henry James Sr. and his sons William and Henry, who in turn influenced a host of other writers; how Emerson spearheaded an American tradition of strong poets and transmitted optimism to subsequent writers; and how Emerson cultivated aesthetic rhetoric and anticipated progressive sociopolitical thought.

If Gunn is a bridge between classical philosophical pragmatism and neopragmatism of the aesthetic variety, Poirier was neither classical philosophical nor neopragmatist, eschewing as he did the logics and empiricism of Pierce and James as well as the political agitating of some of Gunn’s subjects. Poirier concentrated above all on the literary and cultural aspects of pragmatism: not that these aspects are divorced from politics, only that their primary objective is aesthetic or philosophical rather than partisan or activist.

Poirier sought to “revitalize a tradition linking Emerson to, among others, Stein, and to claim that new directions can thereby be opened up for contemporary criticism.” He, like Gunn, was frank about his attempt to expand the pragmatist canon that purportedly began with Emerson. “As Emerson would have it,” he explained, “every text is a reconstruction of some previous texts of work, work that itself is always, again, work-in-progress.”

This constant, competitive process of aesthetic revision gives rise to a community of authors whose mimetic activities gradually form and reform a canon that resembles and functions like the constantly reformulating legal principles in a common-law system: “The same work gets repeated throughout history in different texts, each being a revision of past texts to meet present needs, needs which are perceived differently by each new generation.” Within this revisionary paradigm, Poirier heralded Emerson as the writer who “wants us […] to discover traces of productive energy that pass through a text or a composition or an author, pointing always beyond any one of them.”

Cornel West explored the radical implications of pragmatism to democracy in the works of Emerson, Peirce, William James, Dewey, Sidney Hook, C. Wright Mills, W.E.B. DuBois, Reinhold Niebuhur, Lionel Trilling, Roberto Unger, and Michel Foucault. Unlike the interpreters of pragmatism discussed above, West extended the pragmatist canon from America to the European continent and professed a radical preoccupation with knowledge, power, control, discourse, and politics. Like the previous interpreters, however, he acknowledged the family resemblances among disparate pragmatist thinkers and their ideas and so, in Nietzschean or Foucaultian fashion, undertook a “genealogy” of their traditions.

Recent work by Colin Koopman has run with the historicist compatibilities between genealogy and pragmatism to articulate novel approaches to cultural studies. Although the topic exceeds the scope of this short post, genealogical pragmatism might serve as a promising methodology for future studies of the common-law system.

“My emphasis on the political and moral side of pragmatism,” West explained, “permits me to make the case for the familiar, but rarely argued, claim that Emerson is the appropriate starting point for the pragmatist tradition.” West’s emphasis on pragmatism as a “new and novel form of indigenous American oppositional thought” has an interesting valence with Oliver Wendell Holmes Jr.’s new and novel form of dissenting from the majority and plurality opinions of the U.S. Supreme Court. Holmes’s jurisprudence was oppositional, in other words, although not radical in the sense that West means.

West credited Emerson with enacting “an intellectual style of cultural criticism that permits and encourages American pragmatists to swerve from mainstream European philosophy,” and Holmes’s dissents likewise moved American jurisprudence away from its British origins—especially from Blackstonian paradigms of the common law—and towards an oppositional paradigm modeled off theories of Darwinian struggle.

Richardson borrows a phrase from Darwin, “frontier instances,” which he borrowed from Francis Bacon, to trace the continuity of pragmatism in American life and thought. Her argument “proceeds by amplification, a gesture mimetic of Pragmatism itself, each essay illustrating what happened over time to a form of thinking brought over by the Puritans to the New World.” She treats pragmatism as a uniquely American philosophy and more impressively as an organism that develops through natural selection: “The signal, if implicit, motive of Pragmatism is the realization of thinking as a life form, subject to the same processes of growth and change as all other life forms.” Her diverse subjects signal the definitive expositors of pragmatism for their respective eras: Jonathan Edwards, Emerson, William and Henry James, Wallace Stevens, and Gertrude Stein.

Richardson’s Emerson is a visionary who retained a ministerial or spiritual philosophy but who repackaged it in less conventionally Christian terms than his Puritan, evangelical predecessors. She explains that Emerson imperfectly replicated the work of Old Testament prophets and New Testament apostles to make it apprehensible in the rapidly changing American context. Her latest book, Pragmatism and American Experience, endeavors to untangle the knot of pragmatism and transcendentalism, searching Cavell for illumination regarding the perceived mismatch between these two prominent schools of American philosophy.

Albrecht interrogates the term “individualism” and describes its currency within a pragmatic tradition that runs from Emerson, William James, and Dewey to Kenneth Burke and Ralph Ellison. Unlike the aforementioned scholars of Emerson, who “do not resolve the question of how far, and to what purpose, one can claim the ‘pragmatic’ character of Emerson’s thought,” Albrecht comes close to a practical answer that is made more insightful and understandable in light of Holmes’s judicial writings that appear in media (opinions and dissents) that control rather than merely influence social patterns.

Albrecht strikes a balance between radical and conservative characterizations of pragmatism, “which gets accused of […] contradictory sins: it optimistically overestimates the possibilities for reform, or it succumbs to a conservative gradualism; it is too committed to a mere, contentless method of inquiry that undermines the stability of traditional meanings, or its emphasis on existing means places too much weight on the need to accommodate existing customs, truths, and institutions.” The same could be said of the common-law tradition that Holmes adored and about which he authored his only book, The Common Law, in 1881.

Albrecht never mentions the common law, but there is a mutual radiance between his analysis of Emerson and the longstanding notion of the common law as the gradual implementation and description of rules by courts, aggregated into a canon by way of innumerable cases and in response to changing social norms. Nor does Albrecht mention Holmes, whose Emersonian contributions to pragmatism only affirm Albrecht’s contention that “there are important benefits to be gained not by calling Emerson a pragmatist, […] but by reading Emerson pragmatically—by applying the fundamental methods and attitudes of pragmatism in order to highlight the ways in which similar attitudes are already present in, and central to, Emerson.”

One such benefit involves the sober realization that Holmes’s Emersonian pragmatism cannot be or ought not to be distorted to mean an equivalence with contemporary and coordinate signifiers such as “Left” and “Right,” “Liberal” and “Conservative,” for there are as many self-proclaimed “Conservative pragmatists,” to borrow a term from the jurist Robert H. Bork, as there are Cornel Wests: thinkers “concern[ed] with particularity—respect for difference, circumstance, tradition, history and the irreducible complexity of human beings and human societies—[which] does not qualify as a universal principle, but competes with and holds absurd the idea of a utopia achievable in this world” (Bork’s words).

Due to the long line of scholars celebrating and studying Emersonian pragmatism, Albrecht is able to remark, “The notion that Emerson is a seminal figure or precursor for American pragmatism is no longer new or controversial.” He extends and affirms a scholarly tradition by depicting “an Emerson whose vision of the limited yet sufficient opportunities for human agency and power prefigures the philosophy of American pragmatism.”

More important than Albrecht’s being the latest link in a chain is the clarifying focus he provides for examining an Emersonian Holmes by attending to two ideas that comport with common-law theory: first, that Emerson prefigured James by walking a line between monism and pluralism and by emphasizing the contingency and complexity of natural phenomena; and second, that Emerson considered ideas as derived from past experience but open to creative revision in keeping with present circumstances.

Regarding the first, Albrecht seeks to undermine a prevailing assumption that Emerson was some kind of absolute idealist, as even William James suggested. Albrecht’s argument is based on the position that Emerson rejected essentialisms and envisioned a cosmos consisting of competing forms and ideas that grow and evolve because of their competition.

Regarding the second, Albrecht seeks to show that although Emerson imagined himself as breaking from past forms and ideas, he also regarded the past as indispensable to our understanding of the present and as necessary for generating and cultivating creative dynamism; the past is inescapable and must be utilized to shape the present, in other words. “All attempts to project and establish a Cultus with new rites and forms, seem to me vain,” Emerson preached in this vein in his Divinity School address, adding that all “attempts to contrive a system are as cold as the new worship introduced by the French to the goddess of Reason[.] […] Rather let the breath of new life be breathed by you through the forms already existing.”

Albrecht promises an Emerson who recounts the mimetic and derivative nature of creativity and genius; yet his portrait of Emerson is incomplete without Poirier, who describes an Emersonian stream of pragmatism flowing with idiomatic, resonate, sonorous, and figurative language. Poirier’s notion of superfluity is central to understanding Holmes’s Emersonian role within a common-law system where “[e]very several result is threatened and judged by that which follows” (Emerson, “Circles”). In the common-law system according to Holmes, a “rapid intrinsic energy worketh everywhere, righting wrongs, correcting appearances, and bringing up facts to a harmony with thoughts” as they are permutated in case precedents (Emerson, “Divinity School Address).

Poirier’s notion of Emersonian superfluity involves a thinker’s “continual effort to raise himself above himself, to work a pitch above his last height,” and to push the syntactical and intellectual boundaries so as to avoid having “the same thought, the same power of expression, to-morrow” (Emerson, “Circles”). Superfluity is an attempt to realize in language the restive impulse to drive forward and reenergize, to prophesy and transcend. It characterizes language that is designed to “stir the feelings of a generation” (Holmes, “Law in Science and Science in Law”), or less grandiosely to compensate rhetorically for the inability of the written word to realize the extraordinary power of an idea or emotion.


Attuned to the Daimon

In America, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, John William Corrington, Philosophy, Western Civilization, Western Philosophy on January 27, 2016 at 8:45 am

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This review originally appeared here in the Library of Law & Liberty.

Richard Bishirjian wears many hats. He’s a businessman, speaker, educator, regular contributor to Modern Age, founder and president of Yorktown University, and champion of online education. He has been a visible presence at conservative conferences and colloquia and an active member of the Intercollegiate Studies Institute, the Philadelphia Society, and the National Association of Scholars. As a young man he studied under Gerhart Niemeyer, Ralph McInerny, Eric Voegelin, and Michael Oakeshott, whose philosophical influences are on display in The Conservative Rebellion, Bishirjian’s latest book, which seeks to reclaim that evocative and oft-abused signifier, “rebel.”

The author disavows the term “conservative movement” even as he uses it out of convenience. Movements as he describes them are “anti-traditional and ideologically motivated revolutionary currents” such as communism or National Socialism that have nothing to do with conservatism, which, he maintains, is constitutionally anti-ideological and anti-utopian. The conservative rebellion, then, is not a movement but a state of mind shared by enough individuals to comprise a community of purpose.

Bishirjian assures us that “this is a work of political theory by which its author affirms a reality that ‘is’ at the same time that he and his fellow Conservative Rebels are its representatives.” He thus locates himself and others like him—the conservative rebels—in a moment of American history that he calls the period of recovery.

This recovery follows four paradigmatic, transitional stages of the American body politic: 1) the revolutionary “spirit” that galvanized the Declaration of Independence; 2) the circumspect limited-government ethos that found expression in the U.S. Constitution; 3) the quasi-religious new nationalism of Abraham Lincoln, which was spiritual and democratic in substance; and 4) the civic religion of modern millennialism in which Progressive idealism, characterized by Woodrow Wilson’s crusading reforms, actualized Lincoln’s mystical vision by replacing limited government with nationalized and centralized power.

Just as each paradigm supplanted its predecessor, so the conservative rebellion of today—a fifth paradigmatic stage—is working to undermine the normative principles bequeathed to us by Lincoln and magnified by Wilson. Bishirjian believes we are struggling with the tensions between the fourth and fifth stages, even within conservative circles, insofar as neoconservatism recalls Lincoln’s and Wilson’s “consciousness of order.” He’s used a Voegelinian term there. It’s the Voegelin in Bishirjian that elicits his overall critique of neoconservatives, whose vision for global democracy and human rights, in his mind, resembles the Gnostic conception of a heaven on earth within history.

The Conservative Rebellion is part memoir, part prescription. It recalls Bishirjian’s formative university years and might be described, in part, as the story of his intellectual awakening. The prose is anything but pedantic, its muscular quality seen, for example, when he writes that “from 1961 to 1964 I read any and every book I could get my hands on to try to figure out what in the hell was going on.” Political incorrectness abounds, as when he describes where he studied:

Take a backwater graduate institution along the St. Joseph River like Notre Dame, have it focus on a backwater region like Latin America, and you seal Notre Dame’s fate as just another graduate program in government.

Bishirjian here refers to the chairman of the Department of Government deciding, in the late 1960s, to reorient the curriculum toward Latin American studies rather than capitalizing on the talent and specialties already existing among a faculty that included Voegelin, Niemeyer, and Stanley Parry. This reconfiguration followed the alleged purging of Notre Dame’s conservative faculty under Father Theodore Hesburgh, its president from 1952 to 1987. The criticisms of the university’s administration during his graduate studies reveal the intensity with which Bishirjian approaches ideas. So does his recalling the fact that he wept the first time he read Voegelin’s The New Science of Politics (1952).

He primarily considers the conservative rebellion he participated in from the time of the Kennedy presidency through that of Jimmy Carter. With the ascendancy of Ronald Reagan and the fall of the Berlin Wall, Bishirjian and his cohorts saw the fruits of their labor and rejoiced, but only for a time. Eventually infighting and enforced ideological standards slowed their momentum and sent well-meaning friends along differing paths. Bishirjian relates that traditional conservatives in the Reagan administration were gradually displaced by neoconservatives after the resignation of Richard V. Allen as National Security Adviser. From that moment on, he suggests, Republican presidential administrations were increasingly peopled by neoconservatives, a word that goes undefined.

The object of Bishirjian’s animus is Progressivism, or Woodrow Wilson’s “political religion.”  That he also calls communism a “political religion” suggests how destructively ideological he believes Wilson’s programs and legacy to have been. He submits that political religion is “ersatz religion” in that it’s a “false construction that intervenes between us and the experience of reality,” a bold and curious claim that makes sense only in light of Voegelin’s teachings.

At times, though, the author denominates Progressivism as liberalism. Not to be mistaken for the classical variety, his targeted liberalism is “intolerant, illiberal, devoid of magnanimity and devoted to the expansion of state power.” So defined, liberalism stands in contradistinction to conservatism, which, he says, is a “political theory linked to an attitude of spirit and mind, not a political philosophy by which the greater universe becomes visible.”

The Wilsonian worldview is most obviously manifest in foreign policy. Bishirjian articulates his longstanding discontent with the Vietnam War and believes “it is not a moral obligation of the American people to die so that others may realize their nationhood.” At the same time, he condemns the coordinated ostracizing of faculty who spoke out in favor of that war. He lambasts both Bush presidencies for their grandiose foreign policy and cautions that

Nothing grows more quickly during war than the powers of the state with the result that by the end of the twentieth century the American administrative state had become the enemy of all Americans, but only social, political and economic conservatives seemed concerned.

Although bitter, Bishirjian is something of an optimist. He sees the potential for cultural restoration, hoping our decline will be followed by prophetic renewal. He notes that Plato and Augustine, respectively, arose from the collapse of the Greek city-state and the Roman Empire. Anxiously alive to the intellectual bankruptcy of mainstream conservatism of the prepackaged, mass-market television variety, he laments “the decline in conservative scholarship and influence in academe,” where institutions of knowledge and learning ought to breed contemplative figureheads.

St. Augustine’s Press has put out a handsome hardback edition of this book. (One would have liked to see more careful copy-editing, though. The typographical errors are distracting.) Its normative assessments and presiding themes should provoke readers on the Left and the Right. Its main thrust is that, to recover the lost tradition of conservatism, what is required is the leadership of men and women attentive to the redemptive and visionary powers of the daimon.

The Conservative Rebellion reaches print just three months after the publication of Harold Bloom’s The Daemon Knows, in which the notion of the daimon (Greek), or the daemon (Latin), figures prominently as a sublime, aboriginal force of human imagination. The daimon prophesies a cosmology, not a short-term political platform or “get-out-the-vote” campaign. He consults Boethius, not Karl Rove. He counsels a consciousness of time and order, not a debate strategy or partisan wager. The luminosity of consciousness isn’t a purely pragmatic strategy capable of yielding quick results, but it does fulfill the mundane task of disclosing a way forward. It’s a prudent plan, in other words, not just a numinous agency, and it has the potential to instantiate once again the fusionism of Frank Meyer.

If Bishirjian is correct, then those attuned to the dynamism of the daimon might be found among “philosophers, knowledgeable political leaders, non-ideological publications, wealthy benefactors and supportive institutions.” It’s telling that he doesn’t name living examples. One wonders if there are any.

Atticus Finch: Still a Hero?

In America, American History, American Literature, Arts & Letters, Book Reviews, Books, Fiction, History, Humanities, Literary Theory & Criticism, Literature, Scholarship, Southern Literature, The Novel, The South, Writing on October 21, 2015 at 8:45 am

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Despite blots on his character after Harper Lee’s publication of Go Set a Watchman, Atticus Finch can and probably should remain a hero, though not without qualification. He can no longer represent the impossible standard of perfection that no actual person or compelling fictional character could meet.

If it wasn’t clear before, it is now: Atticus is a flawed man who despite his depravity found the courage and wisdom to do the right thing under perilous circumstances.

Consider what Uncle Jack says to Jean Louise Finch in the final pages of Watchman: “As you grew up, when you were grown, totally unknown to yourself, you confused your father with God. You never saw him as a man with a man’s heart, and a man’s failings – I’ll grant you it may have been hard to see, he makes so few mistakes, but he makes ‘em like all of us.”

These words are aimed at adoring readers as much as at Jean Louise. They’re not just about the Atticus of To Kill a Mockingbird; they are about any Atticuses we might have known and loved in our lives: our fathers, grandfathers, teachers, coaches, and mentors. Lee may have had her own father, A. C. Lee, in mind. After all, he was, according to Lee’s biographer Charles Shields, “no saint, no prophet crying in the wilderness with regard to racial matters. In many ways, he was typical of his generation, especially about issues involving integration. Like most of his generation, he believed that the current social order, segregation, was natural and created harmony between the races.”

Yet A. C. Lee defended two black men charged with murder, just as Atticus defended Tom Robinson.

The above text is an excerpt from my essay “Children Once, Not Forever: Harper Lee’s Go Set a Watchman and Growing Up,” published in the Indiana Law Journal Supplement, Vol. 91, No. 6 (2015). To view the full essay, you may download it here at SSRN or visit the website of the Indiana Law Journal.


Harold Bloom’s American Sublime

In Academia, America, American Literature, Art, Artist, Arts & Letters, Book Reviews, Books, Creativity, Emerson, Fiction, History, Humanities, Literary Theory & Criticism, Literature, Nineteenth-Century America, Novels, Philosophy, Poetry, Rhetoric, Scholarship, The Novel, Western Civilization, Western Philosophy, Writing on August 12, 2015 at 8:45 am

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This review originally appeared here in the American Conservative.

What can be said about Harold Bloom that hasn’t been said already? The Yale professor is a controversial visionary, a polarizing seer who has been recycling and reformulating parallel theories of creativity and influence, with slightly different foci and inflections, for his entire career, never seeming tiresome or repetitive. He demonstrates what is manifestly true about the best literary critics: they are as much artists as the subjects they undertake.

Bloom’s criticism is characterized by sonorous, cadenced, almost haunting prose, by an exacting judgment and expansive imagination, and by a painful, sagacious sensitivity to the complexities of human behavior and psychology. He is a discerning Romantic in an age of banality and distraction, in a culture of proud illiteracy and historical unawareness. Bloom reminds us that to be faithful to tradition is to rework it, to keep it alive, and that tradition and innovation are yoked pairs, necessarily dependent on one another.

Bloom has been cultivating the image and reputation of a prophet or mystic for decades. His stalwart defense of the Western canon is well known but widely misunderstood. His descriptive account is that the canon is fluid, not fixed—open, not closed. It might be stable, but it’s not unchangeable. The literary canon is the product of evolution, a collection of the fittest works that have been selectively retained, surviving the onslaught of relentless competition.

Bloom’s prescriptive position is that, because human agency is a controllable factor in this agnostic filtering process, serious readers can and should ensure that masterpieces, those stirring products of original, even genius minds, are retained, and that the latest works are held to the highest aesthetic standards, which are themselves established and proven by revisionary struggle. The merit of a work is not found in the identity of its author—his or her race, gender, or sexuality—but in the text proper, in the forms and qualities of the work itself.

Bloom’s latest book, The Daemon Knows: Literary Greatness and the American Sublime, examines ambitious and representative American authors, its chapters organized by curious pairings: Whitman with Melville (the “Giant Forms” of American literature), Emerson with Dickinson (the Sage of Concord is Dickinson’s “closest imaginative father”), Hawthorne with Henry James (a relation “of direct influence”), Twain with Frost (“our only great masters with popular audiences”), Stevens with Eliot (“an intricate interlocking” developed through antithetical competition), and Faulkner with Crane (“each forces the American language to its limits”). This mostly male cast, a dozen progenitors of the American sublime, is not meant to constitute a national canon. For that, Bloom avers in his introduction, he envisions alternative selections, including more women: Edith Wharton, Willa Cather, Marianne Moore, and Flannery O’Connor. Bloom’s chosen 12 represent, instead, “our incessant effort to transcend the human without forsaking humanism.” These writers have in common a “receptivity to daemonic influx.” “What lies beyond the human for nearly all of these writers,” Bloom explains, “is the daemon.”

What is this daemon, you ask. As always, Bloom is short on definition, embracing the constructive obscurity—the aesthetic vagueness—that Richard Poirier celebrated in Emerson and William James and Robert Frost, Bloom’s predecessors. Bloom implies that calling the “daemon” an idea is too limiting; the word defies ready explanation or summation.

The daemon, as I read it, is an amorphous and spiritual source of quasi-divine inspiration and influence, the spark of transitional creative powers; it’s akin to shamanism, and endeavors to transcend, move beyond, and surpass. Its opposite is stasis, repose. “Daemons divide up divine power and are in perpetual movement from their supernal heights to us,” Bloom remarks in one of his more superlative moments. “They bring down messages,” he intones, “each day’s news of the metamorphic meanings of the division between our mundane shell and the upper world.”

What, you might ask in follow up, is the American sublime that it should stand in marked contrast to the European tradition, rupturing the great chain of influence, revealing troublesome textual discontinuities and making gaps of influence that even two poets can pass abreast? “Simplistically,” Bloom submits, “the sublime in literature has been associated with peak experiences that render a secular version of a theophany: a sense of something interfused that transforms a natural moment, landscape, action, or countenance.” This isn’t quite Edmund Burke’s definition, but it does evoke the numinous, what Bloom calls, following Burke, “an excursion into the psychological origins of aesthetic magnificence.”

The Daemon Knows is part memoir, a recounting of a lifetime spent with books. There are accounts of Robert Penn Warren, Leslie Fiedler, and Cleanth Brooks. Bloom’s former students and mentors also make brief appearances: Kenneth Burke, for instance, and Camille Paglia. And Bloom doesn’t just analyze, say, Moby Dick—he narrates about his first encounter with that book back in the summer of 1940. He later asserts, “I began reading Hart Crane in the library on my tenth birthday.” That he remembers these experiences at all speaks volumes to Melville’s and Crane’s bewitching facility and to Bloom’s remarkable receptivity.

Bloom has not shied away from his signature and grandiose ahistorical pronouncements, perhaps because they’re right. Melville, for instance, is “the most Shakespearean of our authors,” an “American High Romantic, a Shelleyan divided between head and heart, who held against Emerson the sage’s supposed deficiency in the region of the heart.” Or, “Emersonian idealism was rejected by Whitman in favor of Lucretian materialism, itself not compatible with Indian speculations.” Or, “Stevens received from Whitman the Emersonian conviction that poetry imparts wisdom as well as pleasure.” These generalizations would seem to service hagiography, but even if they’re overstatement, are they wrong?

My professors in graduate school, many of them anyway, chastised Bloom and dubbed him variously a reactionary, a racist, a misogynist, a bigot, or a simpleton; they discouraged his presence in my essays and papers, laughing him out of classroom conversation and dismissing his theories out-of-hand. Or else, stubbornly refusing to assess his theories on their own terms, they judged the theories in the light of their results: the theories were bad because certain authors, the allegedly privileged ones, came out on top, as they always have. This left little room for newcomers, for egalitarian fads and fashions, and discredited (or at least undermined) the supposedly noble project of literary affirmative action.

They will be forgotten, these dismissive pedants of the academy, having contributed nothing of lasting value to the economy of letters, while Bloom will live on, continuing to shock and upset his readers, forcing them to second-guess their judgments and tastes, their criteria for aesthetic value, challenging their received assumptions and thumping them over the head with inconvenient facts and radical common sense. The school of resentment and amateurish cultural studies, appropriate targets of Bloom’s learned animus, will die an inglorious death, as dogmatic political hermeneutics cannot withstand the test of time.

Bloom, on the other hand, like his subjects, taps his inner daemon, invokes it and rides it where it travels, struggles against the anxiety of influence and displays all of the rhetorical power and play of the strong poets he worships. Dr. Samuel Johnson and Northrop Frye reverberate throughout his capacious tome, and for that matter his entire oeuvre. Bloom’s psychic brooding becomes our own, if we read him pensively, and we are better off for it.

Those who view literary study as a profession requiring specialized and technical training, who chase tenure and peer approval, publishing in academic journals and gaining no wider audience than groveling colleagues, do not possess the originality, the foresight, or the brute imagination necessary to achieve enduring appeal. Reading, done right, is a profoundly personal activity, an exercise in solitary contemplation and possible revelation; writing, done right, is transference: the redirection of complex states of consciousness and knowing from one person to another. A few sentences of Bloom’s contemplative questioning, such as the following, are worth the weight of whole academic articles: “At eighty-four I wonder why poems in particular obsessed me from childhood onward. Because I had an overemotional sensibility, I tended to need more affection from my parents and sisters than even they could sustain. From the age of ten on, I sought from Moyshe-Leyb Halpern and Hart Crane, from Shakespeare and Shelley, the strong affect I seemed to need from answering voices.” Here Bloom invites Freudian investigation of himself, summoning the psychoanalytic models he uses on others.

Bloom is now 85. He claims to have another book left in him, making this one his penultimate. His awesome and dedicated engagement with the best that has been thought and known in the world appears to have left him unafraid of the finish, of what comes next, as though literary intimacy and understanding have prepared him, equipped him, for the ultimate. It seems fitting, then, to quote him on this score and to end with a musing on the end: “We are at least bequeathed to an earthly shore and seek memorial inscriptions, fragments heaped against our ruins: an interval and then we are gone. High literature endeavors to augment that span: My twelve authors center, for me, that proliferation of consciousness by which we go on living and finding our own sense of being.”

An Issue of Supreme Importance for 2016

In America, Conservatism, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, News and Current Events, Politics, The Supreme Court on April 22, 2015 at 8:45 am

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This piece originally appeared here in The American Spectator.

The time has come for politicians to announce their candidacy for president. In the following weeks we can expect more names to be tossed into the hat of presidential hopefuls. Already Senator Ted Cruz and Senator Rand Paul have proclaimed their desire to lead our country. Hillary Clinton made her candidacy official Sunday, and Senator Marco Rubio announced on Monday night.

The 2016 election is shaping up to be the most pivotal in decades, including for reasons not everyone is talking about.

It’s true that Republicans will challenge Obama’s legacy and that everything from Obamacare to payday loans will receive renewed and energetic scrutiny on the campaign trail.

Yet these won’t be the most pressing domestic issues facing the next president. Even more important will be the president’s judicial philosophy. That’s because the probability is high that the nation’s next chief executive administration will nominate at least three candidates to the U.S. Supreme Court.

Although confidence in the Court is at an all-time low, voters do not seem particularly concerned about the Court’s future composition. Perhaps the typical voter does not understand the role the president plays in nominating justices. Perhaps the goings-on of the judicial branch seem distant and aloof and out of the purview of our everyday worries. Perhaps most people are too short-sighted to consider the long-term and far-reaching effects that a president can have on the legal system. Whatever the reason, voters should re-prioritize. Conservatives should move this issue to the forefront of the debates.

When the president is inaugurated in January 2017, Justice Ruth Bader Ginsburg, widely thought to be in poor health, will be two months shy of her 84th birthday; Justice Antonin Scalia and Justice Anthony Kennedy will be 80; and Justice Stephen Breyer will be 78. Is it reasonable to expect these justices to serve out four more years under another administration?

Justice Ginsburg and Justice Breyer are considered members of the left wing of the Court whereas Justice Scalia is considered to be on the right. Justice Kennedy is famously known as the Court’s “swing vote.”

If a Republican wins in 2016 election, he could replace two liberal members of the Court, leaving just two other remaining: Justice Sonia Sotomayor and Justice Elena Kagan. If Justice Kennedy were also to step down during the next administration, a Republican president could further expand the conservative wing of the Court to seven, making room for a vast majority in contentious cases. If the right wing of the Court enjoyed a 7-2 majority today, for instance, there would be less media speculation about how the Court would decide cases on same-sex marriage, religious freedom, immigration, or campaign finance.

The Senate Judiciary Committee, which conducts hearings on presidential nominees to the High Court, currently consists of 11 Republicans and 9 Democrats. Republicans hold a 54-member majority in the Senate, the governing body that confirms presidential nominees to the Court. If these numbers remain unchanged or only slightly changed under a Republican president, that president would have wide latitude to nominate candidates who have tested and principled commitments to conservatism.

Let’s say the presidential election favored a Democrat. A Democratic president could simply replace the departing Justice Ginsburg or Justice Breyer with a jurist in their mold, in effect filling a liberal seat with another liberal. If a Democratic president were up against a Republican Senate, however, his or her nominees would have to appear less liberal than Justice Ginsburg to ensure their confirmation.

Replacing Justice Scalia, arguably the most conservative justice on the Court, with a liberal would be transformative. Although depicted as an unpredictable moderate, Justice Kennedy was nominated by a Republican and more often than not votes with the right wing of the Court. Replacing him with a liberal justice would be a victory for the left. It is possible for the left wing of the Court to gain a 6-3 majority if a Democrat succeeds President Obama.

It’s not inconceivable that in the time he last left, President Obama could name at least one successor to the Court. Barring some unforeseen illness or act of God, however, that is unlikely to happen this late in his presidency. Justice Ginsburg insists on remaining on the Court, and Justice Breyer still has some healthy, productive years ahead of him.

Judges’ and justices’ judicial philosophies are not easily pressed into two sides—conservative or liberal, Republican or Democrat—because law itself usually is not reducible to raw politics or naked partisanship, and a judge’s job entails more than interpreting the language of legislative enactments. Law deals with the complex interactions of people and institutions under disputed circumstances that are portrayed and recounted from different perspectives; therefore, law rarely fits cleanly within simplistic political frameworks.

For this reason, among others, it can be difficult to predict how potential justices will rule from the bench if they are installed on the Court. Chief Justice Earl Warren ushered in the progressive “Warren Court Era” even though he had served as the Republican Governor of California and, in 1948, as the vice-presidential running mate of presidential candidate Thomas E. Dewey. More recently President George H.W. Bush nominated Justice David Souter to the Court. Justice Souter tended to vote consistently with the liberal members of the Court.

The Senate confirmation process has grown more contentious in recent years, and that has made it more difficult for another Souter to slip by the president. But it has also watered down our nominees, whose lack of a paper trail is considered a benefit rather than evidence of a lack of conviction or philosophical knowledge (lawyers are trained, not educated). It has come to a point where if you’re confirmable, you’re not reliable, and if you’re reliable, you’re not confirmable. Chief Justice John Roberts’ acrobatic attempt to uphold the individual mandate in Obamacare on the ground that it was a “tax” reveals just how squishy and unpredictable our justices have become.

There is, of course, the trouble with categorizing: What does it mean to be a “conservative” or a “liberal” judge or justice? Our presidential candidates may have different answers. In January Senator Paul declared himself a “judicial activist,” a label that is gaining favor among libertarians. He appears to have backed away from that position, recently bemoaning “out-of-control, unelected federal judges.” Activist judges, at any rate, can be on the right or the left.

Ted Cruz has not advertised his judicial philosophy yet, but by doing so he could set himself apart because of his vast legal experience, including his service as the Solicitor General of Texas. Two potential presidential nominees, Marco Rubio and Lindsey Graham, are also attorneys, but Rubio’s legal experience, or non-experience, is subject to question, and Graham has been out of the legal field for some time—although he serves on the Senate Judiciary Committee and has intimate knowledge of the Senate confirmation prospects for potential nominees.

It matters a great deal what our presidential candidates believe about the hermeneutics and jurisprudence embraced by potential Supreme Court justices. In the coming months voters will have the power to force candidates to address their judicial philosophy. The candidates must articulate clearly, thoroughly, and honestly what qualities they admire in judges because those qualities might just shape the nation’s political landscape for decades to come.

Conservatives have much to lose or gain this election in terms of the judiciary. Supreme Court nominations should be a top priority for Republicans when debate season arrives.

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

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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.


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.


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.

Interview with Robert J. Ernst, author of “The Inside War”

In America, American History, American Literature, Arts & Letters, Books, Creative Writing, Fiction, History, Humanities, Nineteenth-Century America, Novels, Southern History, Southern Literary Review, Southern Literature, The Novel, The South, Writing on December 4, 2014 at 8:45 am

This interview originally appeared here in Southern Literary Review.

Robert Ernst

Robert Ernst

APM: Thanks for taking the time to sit down for this interview, Bob. Your novel The Inside War is about an Appalachian mountain family during the Civil War. How long have you been interested in the Civil War?

RJE: I have had an interest in the Civil War for many years. Specifically, the effect of the war on Appalachia became an interest as I researched family history, now more than a decade ago. I realized that not much had been written, outside of academic treatises, on this aspect of the war. Bushwhacking ambushes, bands of roving deserters, intensely opposed partisan factions, and a breakdown in civil society befell western North Carolina. Of course, much study had been given to the poverty of the area during the twentieth century, but not much, save bluegrass music, about its culture. What I discovered was a vibrant pre-war society thoroughly rent by the war. And, the area did not recover.

APM: The story of Will Roberts, your novel’s protagonist, is similar to that of many actual soldiers who fought for the Confederacy. How much historical research went into this book? It seems as if there are a number of events in your story—Sammy Palmer’s shooting of the sheriff, for instance—that track historical occurrences.

RJE: Much of the story is based on historical events. In fact, Will Roberts was a real person, as was his brother, Edwin. I traced their wartime adventures, researched the battles and conditions of their captivity and wove a fictional story around them. Likewise their wives, as portrayed in the story, were based on real people, although their story is more fictionalized. The novel does incorporate many historical characters and events that occurred in the vicinity of Marshall, North Carolina, by which I attempt to portray a picture of the character of the area and the severe impact of the war on it.

APM: There are some themes in the book that cover an aspect of the Civil War that is not often covered. Tell us about those.

RJE: The tactic of bushwhacking, or ambushing mountain patrols, is one. Guerrilla warfare as a matter of accepted tactics was new and was a terrifying degradation of the morality of warfare. There was a real cultural divide among the citizens of western North Carolina between those who supported the North, the “tories,” and those who supported the Confederacy. These divisions played out in many ways, most notably in atrocities like the Shelton Laurel massacre, but more subtly in familial and neighbor relationships. I doubt many women suffered as did those in Appalachia, from the depredations, theft and physical threat of the men who populated the mountains during the war. I was surprised to learn of the inhumane prison conditions at Ft. Delaware. Everyone knows of Andersonville, but not many are aware of Ft. Delaware. We know of the great Civil War battles, but there were scores of skirmishes every week that terrified the contestants and shaped their perceptions. Certainly, Roberts’s family suffered greatly, even though their war happened in the background to better known events.

APM: You seem careful not to glorify war but to present it as the complex tragedy that it is. The book’s epigraph states, “For those who have suffered war.” I wonder if the process of writing this book taught you anything about war itself. What do you think?

Allen Mendenhall

Allen Mendenhall

RJE: The grand histories of the conflicts, eulogizing the fallen and celebrating the victorious are all necessary parts of our remembrance of a terrible, national conflict. What I found in researching this story was intense personal suffering, unnoted except at the basic unit of society, the family, and rippling out to the church, neighborhood and town. Why would a woman abandon her children? What would drive a member of the home guard to massacre captives – mere boys? How could people, so crushed, hope? And, of course, the main theme of The Inside War is hope; hope after, and despite the loss and suffering. As we deal with the veterans of the conflict with radical Islamists we need to surround them with a culture of hope.

APM: From one attorney to another, do you think being a lawyer affects your writing in any way—from the preparation to the organization to the style?

RJE: That’s interesting. Certainly the actual practice of law involves clear writing. I have a hard time reading novels written in stream of consciousness or in rambling, shuffling styles. So, hopefully this book will be understandable and clear to the reader. I like the process of legal research and enjoyed the process of researching this book. However, the characters, though based on historical figures, came about from my imagination, which is why the book is a novel and not a history.

APM: It’s been said that the Revolutionary War produced political philosophy in America whereas the Civil War produced literature. Do you agree with this, and if so, why?

RJE: Perhaps the truth in that statement devolves from the Revolutionary War defining the creation of a nation, the Civil War defining its character. The revolution tested the theories of individual liberty and melded them, free of sovereign control, imperfectly into a new nation. The Civil War represents a gigantic challenge to the notion that a nation of citizens can be free. Millions were intimately involved in the latter conflict and the upheaval and changes were intensely felt and recorded in innumerable books. But the fundamental story of both wars is ongoing, in my view, and that is America must re-experience, “a new birth of freedom,” with regularity if America is to retain her vibrancy and hope.

APM: Thanks, Bob, for taking the time. I appreciate it, and I know our readers do, too.

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