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Deidre McCloskey and the Enrichment of the World

In Arts & Letters, Austrian Economics, Book Reviews, Books, Creativity, Economics, Fiction, Historicism, History, Humane Economy, Humanities, liberal arts, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Property, Scholarship, Western Civilization, Western Philosophy on October 26, 2016 at 6:45 am

The following excerpt is adapted from my review of Deirdre McCloskey’s book Bourgeois Equality; the original review, which appeared in the Quarterly Journal of Austrian Economics, is available here.

If it’s true that Wayne Booth inspired Deirdre McCloskey’s interest in the study of rhetoric, then it’s also true—happily, in my view—that McCloskey has refused to mimic Booth’s programmatic, formulaic methods and boorish insistence on prosaic succinctness. Bourgeois Equality is McCloskey’s third volume in a monumental trilogy that began with The Bourgeois Virtues (2006) and Bourgeois Dignity (2010), each published by the University of Chicago Press. This latest volume is a Big Book, alike in kind but not in theme to Jacques Barzun’s From Dawn to Decadence (2000), Camille Paglia’s Sexual Personae (1990), or Herald Berman’s Law and Revolution (1983) and Law and Revolution II (2006). It’s meandering and personal, blending scholarship with an essayistic style that recalls Montaigne or Emerson.

McCloskey’s elastic arguments are shaped by informal narrative and enlivened by her plain and playful voice. At times humorous, rambling, and deliberately erratic, she gives the distinct impression that she’s simply telling a story, one that happens to validate a thesis. She’s having fun. Imagine Phillip Lopate articulating economic history. McCloskey is, in this regard, a latter-day Edward Gibbon, adopting a mode and persona that’s currently unfashionable among mainstream historians, except that she’s more lighthearted than Gibbon, and unashamedly optimistic.

Writing with an air of confidence, McCloskey submits, contra Thomas Piketty, that ideas and ideology—not capital accumulation or material resources—have caused widespread economic development. Since 1800, worldwide material wealth has increased and proliferated; the quality of life in poor countries has risen—even if it remains unequal to that of more prosperous countries—and the typical human being now enjoys access to the food, goods, services, medicine, and healthcare that, in earlier centuries, were available to only a select few in the richest parts of the globe. The transition from poverty to wealth was occasioned by shifting rhetoric that reflected an emerging ethical consensus. The rhetorical-ethical change involved people’s “attitudes toward other humans” (p. xxiii), namely, the recognition of shared experience and “sympathy,” as Adam Smith stated in The Theory of Moral Sentiments. Attributing human progress to ideas enables McCloskey to advocate the norms and principles that facilitated economic growth and social improvement (e.g., class mobility and fluidity) while generating extensive prosperity. Thus, her project is at once scholarly and tendentious: a study of the conditions and principles that, in turn, she promotes.

She argues that commercialism flourished in the eighteenth century under the influence of ideas—such as “human equality of liberty in law and of dignity and esteem” (p. xxix)—that were packaged in memorable rhetoric and aesthetics. “Not matter, mainly, but ideas” caused the Great Enrichment (p. 643). In other words, “[t]he original and sustaining causes of the modern world […] were ethical, not material,” and they included “the new and liberal economic idea of liberty for ordinary people and the new and democratic social idea of dignity for them” (p. xxxi). This thesis about liberty and dignity is clear and unmistakable if only because it is repetitive. McCloskey has a habit of reminding readers—in case you missed her point the first, second, or fifty-seventh time around—that the causes of the Industrial Revolution and the Great Enrichment were ideas, not “narrowly economic or political or legal changes” (p. 470). She maintains, to this end, that the Scottish Enlightenment succeeded in combining the concepts of liberty and dignity into a desirable form of equality—not equality of outcomes, of course, but of opportunity and treatment under the law. And the Scottish model, to her mind, stands in contradistinction to the French example of centralized, top-down codification, command, planning, and design.

A perennial villain lurks in the pages of her history: the “clerisy,” which is an “appendage of the bourgeoisie” (p. 597) and often dubbed “the elite” in regular parlance. McCloskey calls the clerisy “the sons of bourgeois fathers” (p. xvii) and “neo-aristocratic” (p. 440). The clerisy includes those “artists, intellectuals, journalists, professionals, and bureaucrats” who resent “the commercial and bettering bourgeoisie” (p. xvi). The clerisy seeks, in different ways at different times, to extinguish unfettered competition with exclusive, illiberal, irrevocable grants and privileges that are odious to free society and offensive to the rights of average consumers. “Early on,” says McCloskey, referring to the period in Europe after the revolutionary year 1848, “the clerisy began to declare that ordinary people are misled in trading, and so require expert protection and supervision” (p. 609). The clerisy since then has been characterized by paternalism and a sense of superiority.

Because the clerisy is shape-shifting, assuming various forms from time to time and place to place, it’s a tough concept to pin down. The word “clerisy” does not appear in the book’s index to permit further scrutiny. By contrast, McCloskey’s general arguments are easy to follow because the book is separated into parts with questions as their titles; subparts consisting of onesentence headings answer those questions.

In a massive tour de force such as this, readers are bound to take issue with certain interpretive claims. Historians will find McCloskey’s summaries to be too breezy. Even libertarians will accuse her of overlooking manifest wrongs that occurred during the periods she surveys. My complaints are few but severe. For instance, McCloskey is, I believe, either careless or mistaken to announce that, during the nineteenth and early twentieth century, “under the influence of a version of science,” in a territory that’s never specifically identified, “the right seized upon social Darwinism and eugenics to devalue the liberty and dignity of ordinary people, and to elevate the nation’s mission above the mere individual person, recommending, for example, colonialism and compulsory sterilization and the cleansing power of war” (p. xviii).

Let’s hope that it’s innocent negligence rather than willful distortion that underlies this odd, unqualified, categorical assertion. Adam Cohen’s Imbeciles (2016) and Thomas C. Leonard’s Illiberal Reformers (2016) describe how, in the United States, social Darwinism and eugenics were adopted primarily, though not exclusively, by the Left, not the Right. These recent books come on the heels of several scholarly treatments of this subject: Thomas M. Shapiro’s Population Control Politics (1985), Philip R. Reilly’s The Surgical Solution (1991), Joel Braslow’s Mental Ills and Bodily Cures (1997), Wendy Kline’s Building a Better Race (2001), Stefan Kuhl’s The Nazi Connection (2002), Nancy Ordover’s American Eugenics (2003), Christine Rosen’s Preaching Eugenics (2004), Christina Cogdell’s Eugenic Design (2004), Gregory Michael Dorr’s Segregation’s Science (2008), Paul A. Lombardo’s edition A Century of Eugenics in America (2011), and Alexander Minna Stern’s Eugenic Nation (2016). These represent only a small sampling.

Is McCloskey unware of these texts? Probably not: she reviewed Leonard’s book for Reason, although she did so after her own book reached press. At any rate, would she have us believe that Emma Goldman, George Bernard Shaw, Eugene Debs, Marie Stopes, Margaret Sanger, John Maynard Keynes, Lester Ward, and W. E. B. Du Bois were eugenicist agitators for the political Right? If so, she should supply her definition of “Right,” since it would go against commonly accepted meanings. On the matter of colonialism and war, self-identified members of the Old Right such as Albert Jay Nock, John Flynn, and Senator Robert Taft advocated precisely the opposite of what McCloskey characterizes as “Right.” These men opposed, among other things, military interventionism and adventurism. The trouble is that McCloskey’s muddying of the signifiers “Left” and “Right” comes so early in the book—in the “Exordium”— that readers may lose trust in her, question her credibility, and begin to suspect the labels and arguments in her later chapters.

Other undefined terms only make matters worse, ensuring that McCloskey will alienate many academics, who, as a class, are already inclined to reject her libertarian premises. She throws around the term “Romanticism” as if its referent were eminently clear and uncontested: “a conservative and Romantic vision” (p. xviii); “science fiction and horror fiction [are] … offshoots of Romanticism” (p. 30); “[Jane Austen] is not a Romantic novelist … [because] [s]he does not take Art as a model for life, and does not elevate the Artist to a lonely pinnacle of heroism, or worship of the Middle Ages, or adopt any of the other, antibourgeois themes of Novalis, [Franz] Brentano, Sir Walter Scott, and later Romantics” (p. 170); “Romanticism around 1800 revived talk of hope and faith and a love for Art or Nature or the Revolution as a necessary transcendent in people’s lives” (p. 171); “Romantic candor” (p. 242); “the late eighteenth-century Romantic literary critics in England had no idea what John Milton was on about [sic], because they had set aside the rigorously Calvinist theology that structured his poetry” (p. 334); “the nationalist tradition of Romantic writing of history” (p. 353); “Romantic … hostilities to … democratic rhetoric” (p. 510); “[i]n the eighteenth century … the idea of autonomy triumphed, at any rate among the progressive clerisy, and then became a leading Romantic idea, á la Victor Hugo” (p. 636); and “the Romantic conservative Thomas Carlyle” (p. 643).

To allege that the clerisy was “thrilled by the Romantic radicalism of books like Mein Kampf or What Is to Be Done” (p. xviii) is also recklessly to associate the philosophies of, say, Keats or Coleridge or Wordsworth with the exterminatory fantasies of Hitler and Lenin. McCloskey might have guarded against this misleading conflation by distinguishing German idealism or contextualizing Hegel or by being more vigilant with diction and definition. Her loose language will leave some experts (I do not profess to be one) scratching or shaking their heads and, more problematic, some non-experts with misconceptions and misplaced targets of enmity. One imagines the overeager and well-meaning undergraduate, having read Bourgeois Equality, setting out to demonize William Blake or destroy the reputation of Percy Shelly, about whom Paul Cantor has written judiciously.2 Wouldn’t originality, imagination, creativity, and individualism—widely accepted markers of Romanticism—appeal to McCloskey? Yet her unconditionally derogatory treatment of Romanticism—which she portrays as a fixed, monolithic, self-evident thing—undermines aspects of that fluctuating movement, period, style, culture, and attitude that are, or seem to be, consistent with her Weltanschauung.

But I protest too much. These complaints should not diminish what McCloskey has accomplished. Would that we had more grand studies that mapped ideas and traced influences across cultures, communities, and eras. McCloskey takes the long view, as we all should. Her focus on rhetoric is crucial to the future of liberty if, given the technological advances we have made, the “work we do will be more and more about decisions and persuading others to agree, changing minds, and less and less about implementation by hand” (p. 498). Equally significant is her embrace of humanomics—defined as “the story [of] a complete human being, with her ethics and language and upbringing” (p. xx)—which materializes in casual references to Henrik Ibsen’s plays, challenges to the depiction of John Milton “as a lonely poet in a garret writing merely to the starry heavens” (p. 393), analyses of Jane Austen’s novels, and portrayals of Elizabethan England. Her historical and narrative arc enables us to contextualize our own moment, with all of its troubles and possibilities.

Best of all, her book is inspiring and exhilarating and brimming with rousing imperatives and moving calls to action. “Let us, then,” she says at one point, “not reject the blessings of economic growth on account of planning or pessimism, the busybody if wellintentioned rationalism of some voices of the French Enlightenment or the adolescent if charming doubts of some voices of the German Romantic movement, fashionable though both attitudes have long been among the clerisy. As rational optimists, let us celebrate the Great Enrichment, and the rhetorical changes in freer societies that caused it” (p. 146). At another point she encourages her audience to guard against “both cynicism and utopianism” (p. 540), and elsewhere to heed “trade-tested cooperation, competition, and conservation in the right mix” (p. 523). These little nudges lend her credibility insofar as they reveal her true colors, as it were, and demonstrate that she is not attempting—as is the academic wont—to hide her prejudices and conceal her beliefs behind pretended objectivities.

Poverty is relative and, hence, permanent and ineradicable, despite McCloskey’s claim that we can “end poverty” (p. 8). If, tomorrow, we woke up and the wealth of each living person were magically to multiply twentyfold—even fiftyfold—there would still be people at the bottom. The quality of life at the bottom, however, would be vastly improved. The current manifestation of global poverty shows how far we as a species have advanced in the last few centuries. McCloskey is right: We should pursue the ideas that accelerated and achieved human flourishing, that demonstrably brought people out of distress and destitution. Hard sciences and mathematical models are insufficient in themselves to convey the magnitude and splendor of these ideas and their accomplishments. Hence we should welcome and produce more books like McCloskey’s that undertake a “rhetorical-ethical Revaluation” to both examine and celebrate “a society of open inquiry,” one which not only “depends on rhetoric in its politics and in its science and in its economy,” but which also yields intellectual creativity and political freedom (p. 650). In McCloskey’s approach, economics and the humanities are not mutually exclusive; rather, they are mutually illuminating and, in fact, indispensably and inextricably tied. An economics that forsakes the dignity of the human person and his capacity for creativity and aesthetics does so at its own peril and to its own disgrace. All economics is, at its core, humanomics. We could do without the latter term if we understood the former.

REFERENCES

Barzun, Jacques. 2000. From Dawn to Decadence: 500 Years of Western Cultural Life, 1500 to the Present. New York: HarperCollins.

Berman, Harold J. 1983. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass.: Harvard University Press, 2003.

——. 2006. Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition. Cambridge, Mass.: Harvard University Press.

Braslow, Joel. 1997. Mental Ills and Bodily Cures: Psychiatric Treatment in the First Half of the Twentieth Century. Berkeley and Los Angeles: University of California Press.

Cantor, Paul. 1997. “The Poet as Economist: Shelley’s Critique of Paper Money and the British National Debt,” Journal of Libertarian Studies 13, no. 1: 21–44.

Cantor, Paul, and Stephen Cox, eds. 2009. Literature and the Economics of Liberty. Auburn, Ala.: Ludwig von Mises Institute.

Cogdell, Christina. 2004. Eugenic Design. Philadelphia: University of Pennsylvania Press.

Cohen, Adam. 2016. Imbeciles. London: Penguin Press.

Dorr, Gregory M. 2008. Segregation’s Science. Charlottesville, Va.: University of Virginia Press.

Kline, Wendy. 2001. Building a Better Race. Berkeley and Los Angeles: University of California Press.

Kuhl, Stefan. 2002. The Nazi Connection. Oxford: Oxford University Press.

Leonard, Thomas C. 2016. Illiberal Reformers. Princeton: Princeton University Press.

Lombardo, Paul A. 2011. A Century of Eugenics in America. Bloomington, Ind.: Indiana University Press.

McCloskey, Deirdre. 2006. The Bourgeois Virtues. Chicago: University of Chicago Press.

——. 2010. Bourgeois Dignity. Chicago: University of Chicago Press.

Ordover, Nancy. 2003. American Eugenics. Minneapolis: University of Minnesota Press.

Paglia, Camille. 1990. Sexual Personae: Art and Decadence from Nefertiti to Emily Dickinson. New Haven, Conn.: Yale University Press.

Reilly, Philip R. 1991. The Surgical Solution. Baltimore: Johns Hopkins University Press.

Rosen, Christine. 2004. Preaching Eugenics. Oxford: Oxford University Press.

Shapiro, Thomas M. 1985. Population Control Politics. Philadelphia: Temple University Press.

Stern, Alexander Minna. 2016. Eugenic Nation. Berkeley and Los Angeles: University of California Press.

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Antiwar Tradition in American Letters, James Carroll, Lawrence Rosenwald, Library of America, Murray Polner, Thomas E. Woods Jr., Three Centuries of American Antiwar and Peace Writing, War No More, We Who Dared to Say No to War

The Antiwar Tradition in American Letters

In American History, American Literature, Arts & Letters, Book Reviews, Books, Christianity, Conservatism, Essays, Fiction, History, Humanities, Literary Theory & Criticism, Literature, Politics, Religion, Rhetoric, Writing on October 12, 2016 at 6:45 am

This review originally appeared here at Antiwar.com.

A review of War No More: Three Centuries of American Antiwar and Peace Writing. Lawrence Rosenwald, editor. New York: The Library of America, 2016. 838 pgs.

James Carroll, the novelist and Christian man of letters who has won numerous accolades over a long, distinguished career, sets the tone for this fine edition, War No More, in his short foreword. “Wars,” he says, “have defined the nation’s narrative, especially once the apocalyptic fratricide of the Civil War set the current running in blood – toward the Jim Crow reenslavement of African Americans, further genocidal assaults against native peoples, imperial adventures abroad, a two-phased World War that permanently militarized the American economy and spawned a bifurcated imagination that so requires an evil enemy that the Cold War morphed seamlessly into the War on Terror.”

We’ve seen editions like this before – We Who Dared to Say No to War, edited by Murray Polner and Thomas E. Woods Jr. comes to mind – but the focus here is different and decidedly literary. Lawrence Rosenwald, the editor, believes the “antiwar impulse” requires a rich “vocabulary” that’s “visionary, sensual, prophetic, outraged, introspective, self-doubting, fantastic, irreverent, witty, obscene, uncertain, heartbroken” – in short, that signals a range of human emotions and experiences. Rosenwald promises that “[a]ll of those traits are on display here,” and follows through with essays and memoirs by Ralph Waldo Emerson, Henry David Thoreau, Kurt Vonnegut, Edmund Wilson, and, among others, Norman Mailer.

Rosenwald has also achieved a diversity of genre. He includes poems by Henry Wadsworth Longfellow, Stephen Crane, Adrienne Rich, Herman Melville, Robert Bly, Sara Teasdale, Edna St. Vincent Millay, George Starbuck, and Walt Whitman; short stories by Ray Bradbury and Ambrose Bierce; a genre-defying piece by Mark Twain (“The War Prayer”); songs by Country Joe McDonald, Ed McCurdy, and Pete Seeger and Joe Hickerson; a statement before a federal grand jury; letters and an interview; a gospel song (“Down by the River-Side”); a leaflet on the Vietnam War (the conflict with the most permeating presence in the book); excerpts of the prefatory articles of the Constitution of the Iroquois Confederacy; and more.

Women as a class are underrepresented in Rosenwald’s selections. I count 104 men and 35 women among the contributors. Are there fewer women involved in the antiwar movement throughout American history? Or did Rosenwald ignore females because of his preference for particular writers and writings? We may never know because he does not address the gender disparity. If antiwar writers are, in fact, disproportionally male, then further study of that curious fact – or at least some speculation about it – seems warranted.

Multiple traditions merge in these pages: John Woolman, Benjamin Rush, and Reinhold Niebuhr speak as Christians; Eugene V. Debs, Jane Addams, Arturo Giovannitti, and Howard Zinn as proxies for the Left; and Andrew Bacevich as a representative of the Right. Figures like Randolph Bourne cut across trite political labels. And writers associated with certain styles and forms demonstrate their versatility with other kinds of writing. For instance, Robert Lowell, known for his poetry, shows his mastery of the epistolary form in his letter to President Franklin D. Roosevelt.

Rosenwald proves to be far more astute than Jonah Goldberg in his assessment of William James’s “The Moral Equivalent of War.” Whereas Rosenwald submits that this essay is “intended as oppositional” to war, Goldberg, a senior editor at National Review, treats it as fascist and accuses it of presenting “militarism as a social philosophy” that was not only “a pragmatic expedient” but also the basis for “a workable and sensible model for achieving desirable ends.” Of course, Goldberg has been wrong before.

Given that Rosenwald purports to have featured the writing of “pacifists,” the inclusion of John Kerry and Barack Obama is deplorable. True, Kerry’s statement against the Vietnam War is notable as a work of peace activism, but Kerry also voted in 2002 to authorize President Bush’s use of force to disarm Saddam Hussein, advocated U.S. military involvement in Syria, and appears at least partially responsible for the US backing of Saudi-led bombings in Yemen.

If opposition to the Vietnam War is now the measure of pacifism, then most Americans today are pacifists, there being, as of the year 2000, just 30% of Americans who believe that that war was not a mistake, according to a Gallup poll. Thus, Kerry is hardly unique in such opposition. Nicholson Baker, in his energetic essay for this volume, seems more attuned than Rosenwald to Kerry’s foreign-policy prescriptions, castigating Kerry for inciting military involvement in Gaddafi’s Libya.

President Obama, for his part, has overseen regular bombings throughout the Middle East, including in Pakistan, Yemen, Iraq, and Somalia; ordered US military intervention in Libya; increased US troop levels in Afghanistan and escalated US military operations there; and urged Americans to support US military involvement in Syria. These positions are ironic in light of his warning, in his piece in this collection, against traveling “blindly” down “that hellish path” to war.

Rosenwald’s brief, personal introductions (he recalls hearing James Baldwin speak in the Cathedral of St. John the Divine in New York, for instance, and mentions a tribute he wrote for Daniel Berrigan) to each chapter engender an autobiographical feel. One senses that this book represents a patchwork of accumulated memories, that Rosenwald has recounted and repurposed old reading experiences for present political needs. Inviting Carroll to pen the foreword, moreover, was entirely appropriate and wise. As this review opened with Carroll’s eloquent words, so it closes with them.

“Because the human future, for the first time in history, is itself imperiled by the ancient impulse to respond to violence with violence,” Carroll intones, “the cry ‘war no more!’ can be heard coming back at us from time ahead, from the as yet unborn men and women – the ultimate voices of peace – who simply will not come into existence if the essential American soul does not change.” But all is not lost; Carroll remains optimistic. “The voices of this book, a replying chorus of hope,” he says, “insist that such change is possible.”

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Austrian Economics, Bernie Sanders, Friedrich Hayek, Ludwig Von Mises, Murray Rothbard, Socialism, The Daily Caller, The Problem With Socialism, Thomas DiLorenzo

The Problem With Socialism

In Arts & Letters, Austrian Economics, Book Reviews, Books, Economics, History, Humane Economy, Humanities, Libertarianism, Politics, Western Philosophy on September 28, 2016 at 6:45 am

This review originally appeared here in The Daily Caller.

If you’re looking for a short introduction to socialism that rewards rereading, Thomas DiLorenzo’s The Problem With Socialism is it.

Perhaps your son or daughter has returned from college talking about collective control of the means of production and sporting Bernie Sanders t-shirts. Perhaps you’re a political novice looking for informed guidance.

Perhaps you’re frustrated with America’s economic decline and deplorable unemployment rates. Perhaps you listened with bewilderment as some pundit this election season distinguished democratic socialism from pure socialism in an attempt to justify the former.

Whoever you are, and whatever your occasion for curiosity, you’re likely to find insight and answers from DiLorenzo.

A professor of economics at Loyola University Maryland, DiLorenzo opens his book with troubling statistics: 43% of millennials, or at least those between ages 18 and 29, view socialism more favorably than capitalism, and 69% of voters under 30 would vote for a socialist presidential candidate. Socialism—depending on how it’s defined in relation to communism—may have killed over 100 million people and impoverished countless others over the course of the 20^th Century.

So why have the youth (full disclaimer: by certain measures, at 33, I’m considered a millennial myself) welcomed this ideology that’s responsible for mass killings, organized theft, war crimes, forced labor, concentration camps, executions, show trials, ethnic cleansing, disease, totalitarianism, censorship, starvation, hyperinflation, poverty, and terror?

Why have death, destruction, and abject destitution become so hip and cool? Because of effective propaganda and utopian promises of “free” everything.

The problem is, as anyone who’s ever studied economics knows, there’s no such thing as free stuff. Somebodypays at some point.

“What socialists like Senator Sanders should say if they want to be truthful and straightforward,” DiLorenzo thus avers, “is not that government can offer citizens anything for free, but that they want healthcare (and much else) to become a government-run monopoly financed entirely with taxes. Taxes hide, but do not eliminate, the cost of individual government programs.”

And these programs are far more expensive to society than they would be on the free market.

The predicable rejoinder to such a claim — repeated ad nauseam by television personalities—is that socialism works, nay thrives, in, say, Sweden. DiLorenzo corrects the record: “Socialism nearly wrecked Sweden, and free market reforms are finally bringing its economy back from the brink of disaster.”

Strong language, but DiLorenzo maps the history and supplies the data to back it up. “The real source of Sweden’s relatively high standard of living,” he explains, has “everything to do with Sweden avoiding both world wars and jumping into the industrial revolution when its economy was one of the freest, least regulated, and least taxed in Europe.”

Other common binary assumptions are reversed in these pages: socialism causes pollution whereas capitalism protects the environment; socialism leads to war whereas capitalism is peaceful; socialism consolidates power among an elite few whereas capitalism decentralizes and disperses power, which ultimately resides with individual consumers making small economic adjustments based on their particular needs.

Even socialized medicine proves more inequitable than market-based alternatives. Proponents of Canadian-style healthcare ignore the fact that “Canadian health care is actually far more expensive, and the quality far lessthan it would be if doctors and hospitals had to compete for patients on the basis of quality and price.”

Coloring his analysis with references to the Austrian economists Ludwig von Mises, Friedrich Hayek, and Murray Rothbard, DiLorenzo undertakes a variety of other issues implicated by socialism: egalitarianism, fascism, income taxation, wage and price controls, monopolies, public schooling, and more.

Had I been his publisher, I would have insisted that he also include disturbing, graphic, and gruesome images of real, dead human bodies stacked on real, dead human bodies, of ransacked churches, and of confiscated property—alarmingly tangible consequences and horrifying illustrations of pure, realized socialism.

Senator Sanders and most of his followers mean well, of course, and genuinely and in good faith advocate policies they believe to be in the best interests of the United States. Yet the history of the cause they champion is fundamentally at odds with their desired goals.

DiLorenzo has the courage to call socialism what it is: “the biggest generator of poverty the world has ever known.” For young students especially, his concise primer could make the difference between feeling the Bern, and getting burned.

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Roger Scruton, Royal Institution of Great Britain, Terry Eagleton

A Conversation Between Terry Eagleton and Roger Scruton

In Academia, Arts & Letters, Books, Britain, British Literature, Communication, Conservatism, Creativity, Fiction, History, Humanities, Liberalism, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Rhetoric, Rhetoric & Communication, Scholarship, The Academy, Western Civilization on September 21, 2016 at 6:45 am

In 2012, the Royal Institution of Great Britain hosted Terry Eagleton and Roger Scruton for an evening of conversation and debate. Here is the footage of that event:

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Abraham Lincoln, Antonin Scalia Law School, Bill Clinton, Darwin, Donald Trump, F. H. Buckley, George Mason University, Hillary Clinton, Socialism, The Way Back

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

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.

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Abraham Lincoln, Albert Jay Nock, Barry Goldwater, Bradley Birzer, C.S. Peirce, David Brooks, Edmund Burke, Eric Voegelin, F. A. Hayek, George Santayana, Hiroshima, Irving Babbitt, Isabel Paterson, John C. Calhoun, Julian of Norwich, Karl Rove, Leo Strauss, Margery Kempe, Megyn Kelly, Michael Savage, Midge Decter, Nagasaki, Norman Podhoretz, Paul Elmer More, Phyllis Schlafly, Ralph Waldo Emerson, Ray Bradbury, Rush Limbaugh, Russell Kirk, Samuel Taylor Coleridge, Sir Walter Scott, T.S. Eliot, The Conservative Mind, Thomas Babington Macaulay, William F. Buckley, William James

The Conservative Mindset

In American History, Arts & Letters, Book Reviews, Books, Conservatism, Emerson, History, Humanities, Literary Theory & Criticism, Literature, Politics, Scholarship, Western Civilization, Western Philosophy on July 20, 2016 at 6:45 am

The following review first appeared here in the Los Angeles Review of Books. Some of the references, such as those to the presidential primary season, may be dated now, but they were timely on the date of original publication.

The presidential primaries are at last upon us. The leading Republican candidates, including frontrunners Donald Trump and Ted Cruz, have resorted to showmanship and grandstanding to make their case for the party nomination. Their harsh, uncouth rhetoric stands in marked contrast to the writings of Russell Amos Kirk, a founding father of modern American conservatism.

Books on Kirk exist, but they’re few. Fellow conservatives, many of them friends or colleagues of Kirk’s — like T. S. Eliot, William F. Buckley, Barry Goldwater, F. A. Hayek, Eric Voegelin, and Leo Strauss — have received more attention. In this regard, Kirk is the victim of his virtues: he was less polarizing, celebrated by followers and detractors alike for his measured temperament and learned judgments. He did earn numerous adversaries, including Hayek and Frank Meyer, who in retrospect appear more like ambivalent friends, but the staying power of Kirk’s congeniality seems to have softened objections to his most resolute opinions.

Bradley J. Birzer, a professor at Hillsdale College who holds a chair named for Kirk, fills a need with his lucid and ambitious biography. Birzer is the first researcher to have been granted full access to Kirk’s letters, diaries, and draft manuscripts. He has avoided — as others haven’t — defining Kirk by his list of accomplishments and has pieced together a comprehensive, complex account of Kirk’s personality, motivations, and influences.

Birzer offers five themes in Kirk’s work, and less so his private life, which Birzer only touches on: his intellectual heritage, his ideas of the transcendent, his Christian humanism, his fiction, and the reach and implications of his conservatism. Kirk isn’t a dull subject. One need not identify as a conservative to appreciate his polished charm and idiosyncrasies. A plump, bespectacled gentleman who feigned disdain for technology, Kirk was something of a spiritualist with a penchant for the weird. He considered himself a Stoic before he had converted to Catholicism, a regeneration that makes sense in light of the relation of Stoic to Pauline thought.

As a young man Kirk spent four years in the military. His feelings about this experience were conflicted. He suffered from a blend of ennui and disenchantment but occupied his free time with reading, writing, and studying. He was horrified by the use of atomic bombs in Hiroshima and Nagasaki, where the United States had decimated the most flourishing Western cultural and religious centers in the Japanese Empire, just as he was by the internment of Japanese Americans.

The tremendous violence of the 20th century, occasioned by the rise of Nazism, communism, and fascism, impressed upon Kirk a sense of tragedy and fatalism. He came to despise totalitarianism, bureaucracy, radicalism, and “ideology” as leveling systems that stamped out the dignity and individuality of the human person. Hard to place along the left-right spectrum, he was as critical of big corporations and the military as he was of big government and labor.

When Kirk inserted himself into political debates he supported Republican politicians, becoming temporarily more interventionist in his foreign policy before returning to a form of Taftian isolationism, but he always remained more worried about reawakening the moral imagination than in having the right candidates elected to office. His was a long view of society, one without a fixed teleology or secular eschatology, and skeptical of utopian thought. Kirk advocated a “republic of letters,” a community of high-minded and profoundly sensitive thinkers devoted to rearticulating perennial truths (such as the need to pacify human violence, temper human urges for power, and cultivate human longing for the transcendent or divine) and preserving humanist institutions.

Kirk’s politics were shaped by imaginative literature and characterized by a rich poetic vision and vast cultural literacy. Fascinated by such disparate figures as Edmund Burke, Irving Babbitt, Paul Elmer More, T. S. Eliot, Sir Walter Scott, George Santayana, and most of the American Founders, Kirk was also versed in the libertarianism of Albert Jay Nock and Isabel Paterson, whose ideas he admired as a young man but vehemently rejected throughout his mature years. Burke and Babbitt, more than any other men, shaped his political philosophy. And his irreducible imagination made room for mysticism and a curious interest in ghosts.

Kirk’s debt to Burke cannot be overstated. “Like the nineteenth-century liberals,” Birzer says, “Kirk focused on the older Burke, but he countered their dismissal of Burke’s ideas as reactionary and exaggerated.” Kirk also downplayed Burke the Whig, who championed the cause of the American Revolution, which Kirk considered to be not a revolution but a conservative restoration of ancient English liberties. Kirk was wary about the Enlightenment, as was Burke, because the scientism of that period tended to oversimplify inherently complex human nature and behavior. Kirk also thought the Enlightenment philosophes had broken too readily from the tested traditions of the past that shaped human experience.

Kirk appealed to American patriotism — which he distinguished from reckless nationalism — in The American Cause (1957) (which he later renounced as a “child’s book”), The Roots of American Order (1974), and America’s British Culture (1993), drawing attention to what he saw as the enduring customs and mores that guard against utopian conjecture. Yet American patriotism was, in Kirk’s mind, heir to the patrimony of Athens, Jerusalem, Rome, and London. From the mistakes and successes of these symbolic cities Americans could learn to avoid “foreign aid” and “military violence,” as well as grandiose attempts to “struggle for the Americanization of the world.”

Disillusioned with academia after his graduate work at Duke, Kirk was offered a position, which he turned down, at the University of Chicago. Kirk fell in love with the University of St. Andrews, however, where he took his doctorate and wrote a lengthy dissertation on Edmund Burke that would later become his magnum opus, The Conservative Mind. Kirk revised The Conservative Mind throughout his life, adding new permutations and nuances in an attempt to ensure the continued resonance of his cultural mapping.

The almost instant success of The Conservative Mind made Kirk an unlikely celebrity. The book featured sharply etched portraits of men Kirk considered to be representatives of the conservative tradition. Regrettably, and perhaps tellingly, Kirk tended to ignore the contributions of women, passing over such apposite figures as Julian of Norwich or Margery Kempe, with whom he, as a mystic Catholic anglophile, had much in common. Kirk shared more with these women, in fact, than he did with Coleridge or Thomas Babington Macaulay, who appear in The Conservative Mind.

Kirk was also woefully uneducated about American pragmatism. He overlooked Burke’s influence on, and compatibility with, pragmatism. (As Seth Vannatta ably demonstrates in Conservatism and Pragmatism (2014), Burke “is a model precursor of pragmatism because he chose to deal with circumstances rather than abstractions.”) Kirk failed to see the pragmatic elements of Santayana, whom he adored, and he seemed generally unaware of the work of C.S. Peirce. Kirk’s breezy dismissal of William James, Santayana’s teacher and later colleague, suggests he hadn’t read much of James’s oeuvre, for Kirk lumped the very different James and Dewey together in a manner that proved that Kirk himself was susceptible to the simplification and reduction he decried in others.

Conservatism, for Kirk, consisted of an attitude or mindset, not an explicit or detailed political program. Enumerating vague “canons” of conservatism that Kirk tweaked from edition to edition, The Conservative Mind was a “hagiographic litany,” a genealogy of the high-minded heroes of ordered liberty and convention. Kirk didn’t intend the book to be model scholarship. It was something more — an aestheticized bricolage cannibalized from Burke and Eliot and others, with inspirational and ritualistic value. It has never gone out of print.

Kirk is sometimes accused of being contradictory, holding simultaneously incompatible positions, in part because he lauded apparent antagonists such as John C. Calhoun and Abraham Lincoln. “Kirk found something to like in each man,” Birzer says of Calhoun and Lincoln, “for each, from [Kirk’s] perspective, embodied some timeless truth made sacramentally incarnate.” Tension between rivaling conservative visions is reconciled in Kirk’s desire never “to create an ideology out of conservatism, a theology at the quick and the ready with which one could easily beat one’s opponents into submission.” Ideology, Kirk believed, was a symptom of totalitarianism, and as such was the common denominator of fascism and communism. Kirk believed his own philosophy was not an ideology, because he, like Burke, preferred “a principled defense of justice and prudence” to any specific faction or agenda. He recognized that change was necessary, but thought it should be guided by prudence and historical sensitivity.

For a history buff, Kirk could be positively ahistorical and uncritical, ignoring the nuances and particularities of events that shaped the lives of his heroes. He ignored Calhoun’s commitment to the peculiar institution, and with a quick wave of the hand erased slavery from Calhoun’s political calculus, adding without qualification that “Calhoun defended the rights of minorities.” Kirk made clumsy caricatures out of his assumed enemies, calling men like Emerson “the most influential of all American radicals.” Emerson had met Coleridge, whose Romanticism partially inspired Emerson’s transcendentalism. Yet Kirk loathed Emerson and praised Coleridge and saw no inconsistency in doing so.

Kirk was not alone during the 1950s. The decade witnessed a renaissance of conservatism, exemplified by the publication of not only Kirk’s The Conservative Mind, but also Robert Nisbet’s The Quest for Community, Strauss’s Natural Right and History, Ray Bradbury’s Fahrenheit 451, Eliot’s The Confidential Clerk, Voegelin’s New Science of Politics, Gabriel Marcel’s Man against Mass Society, Christopher Dawkins’s Understanding Europe, C.S. Lewis’s Mere Christianity, Whittaker Chambers’s Witness, and Buckley’s God and Man at Yale. It was The Conservative Mind, however, that “gave one voice to a number of isolated and atomized voices.” It also lent intellectual substance and credibility to the activist groundswell surrounding such politicians as Goldwater a decade later.

When Kirk joined Buckley’s National Review, the manner of his writing changed. Previously he had contributed to literary and scholarly journals, but, as Birzer points out, his “contributions to the National Review slowly but surely crowded out his output to other periodicals.” Working for National Review also drew Kirk into personality conflicts that passed as theoretical disagreements. Kirk sided with Buckley, for instance, in banishing from the pages of National Review any writers associated with the John Birch Society. Kirk despised the egoism of Ayn Rand, scorned the label neoconservative, and did not take kindly to the doctrines of Irving Kristol. Yet Kirk held Leo Strauss in high regard, in no small part because of Strauss’s scholarship on Burke and natural rights.

Strauss is sometimes treated as the fount of neoconservativism, given that his students include, among others, Allan Bloom, Harry Jaffa, and Paul Wolfowitz. But Kirk never would have considered the esoteric and conscientious Strauss to be in a league with neoconservative provocateurs like Midge Decter and Norman Podhoretz, who indicted Kirk for anti-Semitism after Kirk, in a speech before the Heritage Foundation, stated that some neoconservatives had mistaken Tel Aviv for the capital of the United States — a tactless comment that was blown out of proportion.

“Kirk never sought conformity with those around him,” Birzer argues, “because he never wanted to create a sect or a religion or a cult of personality.” Kirk labored for the sake of posterity, not self-promotion. “The idea of creating ‘Kirkians,’” as there are Straussians, Misesians, Randians, and Rothbardians, “would have horrified [Kirk] at every level of his being”; Birzer insists that Kirk “desired only to inspire and to leaven with the gifts given him,” adding that “[h]e did well.” “I hope,” Birzer concludes, “I have done at least half as well” in writing Kirk’s biography.

Bringing Kirk into renewed focus during a contentious election season, as the term conservatism is bandied about, contested, and abused by commentators as varied as David Brooks and Phyllis Schlafly, Megyn Kelly and Rush Limbaugh, Karl Rove and Michael Savage, Birzer reminds us that conservatism, properly understood, is a “means, a mood, an attitude to conserve, to preserve, and to pass on to future generations the best of the humane tradition rather than to advocate a particular political philosophy, party, or agenda.”

One wonders, watching the campaign stops and debate spectacles, the ominous political advertisements and alarmist fundraising operations, what’s left of this humane tradition in our current political discourse. When our politicians lack a responsible and meaningful awareness of the residual wisdom of the ages, we get the leadership and politics we deserve. Would that we had more Russell Kirks around to remind us of the enduring things that, in times like these, are hard to find and difficult to believe in.

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Active Liberty, death penalty, executive power, Guantanamo Bay, interdependence, Stephen Breyer, The Court and the World, The Imaginative Conservative, Transnational Law, treaty, United States Supreme Court

The Sad Career of Justice Stephen Breyer

In Academia, Arts & Letters, Book Reviews, Books, Essays, Humanities, Jurisprudence, Law, Politics on May 4, 2016 at 6:45 am

This essay originally appeared here in The Imaginative Conservative.

It is an unfortunate truism that the longer one remains in the legal profession, the less educated he becomes. The law, as the saying goes, is a jealous mistress: She does not permit solicitors to invest time in rival passions—e.g., philosophy, history, and literature—let alone cultivate the niceties and nuances of expression that distinguish the lettered from the unlettered. It is tough to read Dickens and Henry James when you have got billable hours to meet, and slogging through appellate cases rewards only a rudimentary, distilled understanding of principles that great minds have reworked for centuries. There is simply not enough time for punctual judges and practicing attorneys to master biblical hermeneutics or study Shakespeare, and developing the whole person—learning to live well and wisely—falls far beyond the scope of legal practice and proficiency.

Justice Stephen Breyer was off to a promising start to an educated life when he studied philosophy at Stanford University and then attended Oxford University as a Marshall Scholar. He graduated from Harvard Law School in 1964 and began his legal career as a clerk to Justice Arthur J. Goldberg of the United States Supreme Court. In 1967 Breyer entered the academy—first Harvard Law School and later Harvard’s Kennedy School of Government—where he focused on administrative law. His scholarship was neither groundbreaking nor exceptional, but it was sufficient to secure him a full professorship and to demonstrate a superior understanding of an unpopular subject. Breyer was, at this time, becoming the welcome exception: a literate lawyer.

Then things went wrong, gradually and by slow degrees. Breyer took the bench on the United States Court of Appeals for the First Circuit in 1980 and, thereafter, became less interesting and bookish and more programmatic and expedient. Perhaps he was overworked or overtired, inundated with cases and bogged down by the mostly mundane tasks of judging. Perhaps, as should be expected, he paid more attention to his docket than to the philosophers who had enriched his thinking during his youth. Perhaps he never wanted the life of a scholar and previously had spilled his ink to game the ranks of the professoriate, an arduous scheming no longer necessary once he had achieved a position with life tenure and nearly unparalleled retirement benefits. Perhaps a want of constructive idleness and leisured meditation hardened his contemplative faculties. Whatever the reason, Breyer’s scholarship fell off, his writing suffered, and the lamp of his imagination went out. He poured his soul into cases.

Breyer did manage to exhibit flashes of his former acumen in Active Liberty (Vintage, 2005), but his latest book, The Court and the World (Knopf, 2015), notwithstanding the cheering pother it’s elicited, is a snoozer and not particularly edifying. The introduction consists of the kind of tedious mapping and framing that only the student editors of law reviews would tolerate. Breyer separates the book into four parts. Part I addresses the protection of civil liberties during our age of terrorism and constant security threats; Part II, statutory interpretation; Part III, the interpretation of treaties and the lawmaking powers of the president and Congress; and Part IV, communication between jurists from different jurisdictions across the planet. Two animating themes underlie each part: the meaning and import of the rule of law in a globalized world and the incorporation of foreign trends and norms into the legal system of the United States. The latter theme involves principles of comity, or the idea that one jurisdiction will give weight, deference, and authority to the acts, orders, or rulings of another jurisdiction. Breyer’s thesis is that “the best way to preserve American constitutional values (a major objective that I hold in common with those who fear the influence of foreign law) is to meet the challenges that the world, as reflected in concrete cases on our docket, actually presents. Doing so necessarily requires greater, not less, awareness of what is happening around us.”[1] Standing alone, this declaration seems benign and uncontroversial, hardly worth sustained critique or impassioned defense. Yet something is rotten in the state of Denmark, and arguments that seem nonthreatening are not always as they seem.

This essay will analyze Breyer’s attempts to realize his thesis in The Court and the World and raise questions regarding whether he has, in the way he celebrates the transnational turn in judging, betrayed his own provinciality and proven his own misunderstanding of foreign developments as he puts paternalistic presuppositions on display. Rather than modeling a greater awareness of “what is happening around us”—his stated goal—Breyer demonstrates a profound unawareness of international trends and norms, not to mention a paternalistic view of the role of American courts in relation to the cultures and values of peoples beyond American borders.

I will suggest, as well, that Breyer advocates approaches to judging that, if widely followed and accepted, could fundamentally undermine his notions of comity and international interdependence; thus, his jural prescriptions, such as they are, ought to be approached with extreme caution if not rejected outright, at least until a better case can be made for them.[2] Although Breyer purports that he “does not pretend to offer any ultimate or even provisional solutions”[3] to the challenges presented by globalization, or that he “merely surveys what is for many an unfamiliar and still-changing legal landscape,”[4] he champions certain methods and viewpoints that lead inexorably to predictable and definite outcomes.[5]

My chief criticisms are threefold: (1) Breyer affirms the obvious and, thus, contributes nothing meaningful or constructive to our ongoing conversation about the role of foreign law in domestic courts; (2) he defends a transnational turn in jurisprudence at the expense of the liberal, democratic principles he purports to value; and (3) his lack of historical and philosophical understanding, or his refusal or inability to employ that understanding in the service of rational argument in this book, undermines his reliability and undercuts any lasting merit his arguments for transnational adjudication and jurisprudence might enjoy. These are not my only concerns about Breyer and his latest book, but a commentator nervous about the prestige and grandeur of the High Court must shrink from enumerating every failure of one of its most eminent justices. As I am not motivated by pure animus or set in the way of critique, I do praise Breyer’s work where praise is due, in particular regarding his sensible apprehensions about the scope of presidential power, especially during wartime.

The gravamen of Breyer’s argument is that because of communications technology, ease of travel, and globalization, the influence of foreign law on United States courts is on the rise. That is indisputable and self-evident. No reasonable person doubts that we live in “an ever more interdependent world—a world of instant communications and commerce, and shared problems of (for example) security, the environment, health, and trade, all of which ever more pervasively link individuals without regard to national boundaries.”[6] It does not follow from this obvious given, however, that a knowledge of foreign laws and legal institutions should be accompanied by their binding application in the courts of our nation, or that any hesitance to embrace unprecedented levels of extraterritorial-based experimentation with the domestic legal system constitutes, in Breyer’s words, “stand[ing] on the sidelines” or a “withdraw from the international efforts to resolve the commercial, environmental, and security problems of an increasingly interdependent world.”[7] Such language borders on bad-faith and casts doubt on Breyer’s credibility, integrity, and motivation. After all, Breyer does not attempt to explain or even address the potential arguments of his opponents, who are never named in the text (unless they are his colleagues on the bench), nor does he concede when his opponents’ points are valid. Instead, he militates against straw men and caricatured positions that, in his telling, stand in the way of necessary progress and experimentation. Lest I surrender to the same dishonest tactics here, I turn now to key examples from Breyer’s chapters to substantiate my three presiding criticisms.

It is helpful at the outset to note a structural dichotomy that frames Breyer’s argument. “[T]he important divisions in the world,” Breyer opines, “are not geographical, racial, or religious but between those who believe in a rule of law and those who do not.”[8] With this tidy summation Breyer presses into two sides all the world’s religious varieties and cultural multiplicities, each with their own normative codes and modes of participation in government and politics. The risk of Breyer’s oppositional pairing is plain: inattention to nuanced realities, simplification of complex systems and beliefs, reduction of complicated theories, neglect of rivaling perspectives, and so forth. That is not to say such casual coupling has nothing to recommend it; sometimes easy heuristics and graspable models are helpful. Consider, for instance, Aristotle’s ten predicates or the hypothetical State of Nature popularized by Hobbes and Locke. Yet a justice on the United States Supreme Court who urges American judges “to understand and to appropriately apply international and foreign law”[9] should avoid the type of essentializing that subsumes important, distinguishing characteristics of diverse legal systems under two broad categories, one good and one bad. This simplistic dichotomy does manifest injustice to those cultures and communities—many of them more traditionalist, religious, localist, and conservative than their European and American neighbors—which consider themselves to be governed by the rule of law, however different that version of the rule of law may seem from the standards and structures figured in Breyer’s operative paradigm.

To his credit, Breyer is upfront about his assumption that “the United States will remain a preeminent world power, due to its military and economic strength and the prestige of certain features of American life, including our long experience in creating, maintaining, and developing a fairly stable constitutional system of government.”[10] And he is likely right on that score as a matter of factual probability. He also exhibits an endearing pride when he intones that the American legal system has “allowed a large multiracial, multiethnic, and multireligious population to govern itself democratically while protecting basic human rights and resolving disputes under a rule of law.”[11] Yet inherent in his commendation of the American legal system is the unexamined presumption that the legal norms of other, more traditionalist places and cultures are inferior to those of the United States or else poor foundations for the rule of law in practice. “When, therefore, I use the frequently heard term interdependence,” Breyer avers, “it is with these assumptions”—i.e., those assumptions which affirm the superiority and staying power of the American legal system–“firmly in mind.”[12] These assumptions, however valid they may seem at first blush, signal a telling paradox, if that is the right word. To wit, Breyer admires the tolerance and accommodation made possible by liberalism and democratic constitutionalism, but in prioritizing tolerance and accommodation he would open the American legal system to their opposite. Developing in tandem with the proliferation of transnational norms and institutions is the equally rapid spread of radicalism and reaction,[13] exemplified most notably in Islamic terrorism and Sharia Law but evident to a lesser degree in the pseudo-nationalist movements and organizations percolating across Europe. Breyer’s call for the adoption of foreign laws and legal norms could mean the eventual obliteration of the very flexibility and latitude that enable jurists like him to look abroad for instruction and guidance.

Breyer is right in one vital respect: Interdependence has a “particularly worrisome manifestation”[14] as a result of national-security threats, the judicial response to which has been to increase presidential powers at the expense of constitutional fidelity. Breyer’s thesis for Part One, which addresses national security and presidential power, is laudably direct and succinct:

“This Part will show the Court steadily more willing to intervene and review presidential decisions affecting national security, even to the point of finding a related presidential action unconstitutional. What is notable is that this progression toward assertiveness has occurred even as threats to national security have become more international, indefinite with respect to manner, and uncertain with respect to time. Indeed, threats today are less likely to arise out of a declaration of war by another sovereign power and more likely to be posed by stateless international terrorist networks. They are also more likely to last for many years, perhaps indefinitely. The change in the Court’s approach together with the change in circumstances is, I would argue, no mere coincidence.”[15]

What follows this thesis is less direct and succinct as Breyer undertakes to supply an abbreviated history of the political-question doctrine and its implications for the scope of executive authority.

To prove the relevance and significance of the political-question doctrine to current affairs, Breyer briefly discusses Zivotofsky v. Clinton (2012),[16] a recent case in which the United States Supreme Court (hereinafter sometimes referred to as “the Court”) determined that issues pertaining to passport regulation were not purely political questions outside the province of the judiciary. The principal focus of this section, however, is historical, surveying with sweeping strokes everything from Abraham Lincoln’s suspension of habeas corpus to Woodrow Wilson’s prosecution of dissenters during wartime to Harry Truman’s seizure of steel mills, which were private property. Accordingly, Breyer analyzes United States v. Curtiss-Wright Export Corp. (1936) (which held, inter alia, that the President of the United States is constitutionally vested with plenary executive authority over certain foreign or external affairs; that the powers of external sovereignty enjoyed by the United States federal government do not depend on affirmative grants of the United States Constitution; and that the United States Constitution, and the laws passed pursuant thereto, have no force in foreign territory);[17] Korematsu v. United States (1944) (which held that the executive exclusion orders providing for the detainment of Fred Korematsu, an American citizen of Japanese descent, were constitutional);[18] and Ex parte Quirin (1942) (which upheld as constitutional the jurisdiction of U.S. military tribunals—created by executive order—used to prosecute German saboteurs in the United States).[19] Under these cases, the president enjoys wide discretion and privilege in matters of national security and foreign affairs. If Breyer’s summaries of these cases repay rereadings, it is because they are useful guides to landmark cases—but no more useful than any of the student briefs or encyclopedia entries that can be found online.

To his credit, in my view, Breyer rejects the guiding rationale in Curtiss-Wright, Korematsu, and Quirin and finds wisdom in Youngstown Sheet & Tube Co. v. Sawyer (1952), which held that the president did not possess the inherent power, purportedly in the public interest, to order the Secretary of Commerce, during wartime, to seize the private property of steel companies that were wrangling over labor disputes. Youngstown Sheet, whatever else it stands for, represents a stark departure from the mode of absolute deference to executive power adopted and perpetuated by the Court in earlier eras.[20] Why did the Court reverse course in Youngstown Sheet? According to Breyer, “Judges are inevitably creatures of their times, and the Steel Seizure justices had just seen totalitarian regimes destroy individual liberty in Europe. While they did not necessarily fear the rise of an American dictator, knowledge of what happened to other democratic societies must have been sobering.”[21] This explanation would have us believe that a mere awareness of foreign affairs—not fidelity to the terms of the Constitution—motivated the decision in Youngstown Sheet. Although the events of World War One and World War Two and other twentieth-century geopolitical struggles no doubt loomed large in American memory, Justice Black’s opinion in Youngstown Sheet, as well as the concurrences with that opinion, grounded themselves in the text of the Constitution, not in extraconstitutional historical analysis or commentary on current events.

Breyer acknowledges that presidents will, as a matter of course, seek to exercise vast authority to resolve urgent conflicts, but he believes the Court’s institutional duty is to ensure that executive power is prudently circumscribed. “We should,” he says, “expect presidents to make broad assertions of presidential authority, especially during an emergency, when in the rush of immediate events they face immediate problems requiring immediate solutions. The Court, by contrast, playing a different institutional role, can and must take a longer view, looking back to the Founding, across the nation’s history, and sometimes into the unforeseeable future. No matter how limited an opinion the justices try to write, their holdings will be taken as precedent, perhaps for a very long time.”[22] Looking to history and tradition to demarcate executive power is, of course, good, but Breyer appears to disregard the fact that constitutional interpretation—the way in which provisions of the constitution are read and applied by judges and justices—is embedded in historical networks and processes. A judge or justice may not undertake historical inquiry that is divorced from the text of the Constitution, which must provide the framework and serve as the source for judicial decisions no matter the era and no matter the sociopolitical exigencies. If history were to instruct judges and justices that certain provisions of the Constitution were unwise or improper, judges and justices would nevertheless be bound by those provisions and could not remake or ignore them based on their personal interpretations of historical events. Reworking or revising the text of the Constitution falls to the legislature, which is electorally accountable to the citizens, whose cultures and values, which are likewise historically informed, shape and guide the amendment process recognized in the Constitution.

Breyer suggests that the so-called “Guantanamo Bay Cases”—Rasul v. Bush (2004),[23] Hamdi v. Rumsfeld (2004),[24] Hamdan v. Rumsfeld (2006),[25] and Boumediene v. Bush (2008)[26]—represent a new trend, or “the culmination of an evolution that may continue.”[27] Advocates for some Guantanamo Bay detainees had, during the presidency of George W. Bush, begun filing writs of habeas corpus and other, similar actions in the courts of the United States, challenging the detainees’ imprisonment on foreign soil as well as the government’s position that the detainees were not entitled to, and thus not denied, access to the legal system of the United States. Although these cases reaffirmed the longstanding authority of the executive branch in certain areas, they also pushed back against executive powers, vesting in the detainees the right to challenge their detention in the legal system of the United States. These cases collectively established that individuals detained as enemy combatants were entitled to due process of law, notwithstanding their citizenship or executive prerogative, and they effectively curbed the government abuse occasioned by special military commissions and the suspension of habeas corpus. The Court ensured that the rule of law, however strained, obtained in times of war as in times of peace. The days of Curtiss-Wright and Korematsu were, the Court proved, no longer with us. Breyer attributes this development to a growing awareness of other countries and cultures. “The intrusion of the world’s realities into our national life,” he says to this end, “no longer seemed, as it once had, such an anomalous thing, justifying anomalous results.”[28]

Justice Breyer is correct that the “world’s realities” have forced a rethinking of the judicial role and judicial authority, but, again, he closes his eyes to other realities, namely, those demonstrating how constitutionally limited the judicial role and judicial authority are and must be. He characterizes the allegedly new approach as “engagement,” as if, in this particular context, it were not already the prescribed role of the judicial power under the Constitution. “Rather than sit on the sidelines,” Breyer says, “and declare that cases of this kind pose an unreviewable ‘political question,’ or take jurisdiction but ultimately find for the President or Congress as a matter of course, today’s Court will be more engaged when security efforts clash with other constitutional guarantees. It will listen to the government and consider its arguments, but it will not rubber-stamp every decision.”[29] The problem with this characterization is twofold: first, it suggests that the Court is doing something that the Constitution does not require the Court to do and ignores the possibility that the Court in earlier eras might have been acting unfaithfully to the text of the Constitution as the justices shirked their constitutional duties; and second, it could operate as a basis for validating judicial “engagement”—one might say “activism”—in other areas such as the Fourteenth Amendment, under which the Court has forged a grotesque line of precedent, supposedly emanating from the substantive-due-process and equal-protection clauses, that has less textual basis in the Constitution than the sort of judicial engagement manifest in the Guantanamo Bay Cases.

However appropriate Breyer’s concerns about presidential power may be, they are undercut by his reticence to admit that our own Constitution has equipped us with adequate remedies for the problem. He preaches that, in the future, the Court must achieve a “greater willingness to understand and take account of both the world and of the law beyond our borders,” as well as a “readiness to meet the various challenges of doing so,”[30] as though the Guantanamo Bay Cases had nothing to do with the laws within our borders and everything to do with the laws beyond our borders. Leaving aside the problematic jurisdictional and legal status of Guantanamo Bay, a military prison located within the borders of another nation—one that is not an ally of the United States—the fact of the matter is that the Guantanamo Bay Cases involved disputes over provisions in the United States Constitution and the laws of the United States. The Court did not divine its conclusions from, or predicate its rationale on, some greater understanding of the world and extraterritorial law. Thus, Breyer overstates the importance of interdependence in these cases.[31] Although it is true that “[o]ther courts and legislatures have faced and are facing similar threats to their nations’ peace and safety” and that those institutions “have engaged in similar projects to those before our Court of balancing security and liberty,” nothing those courts or legislatures say or do is binding on the courts in the United States,[32] even if their solutions, which Breyer does not specify, “serve as constructive examples that our Court could put to good use.”[33] Nothing in Part I of Breyer’s book supports this conclusion. Instead, that portion of the book reveals how the laws of the United States have, over time and despite setbacks and mistakes, worked better than foreign laws to check power grabs and mediate conflicts as the Court gradually came to adopt rather than disregard certain principles enshrined in the Constitution. If anything, foreign law in this section of the book—as evidenced by the legal architecture of the 20^th century totalitarian regimes that loom in the background of Breyer’s narrative—serves as an illustration of what not to mimic and incorporate into the American system.

I pretermit examination of Part II of The Court and the World because its thesis—that courts in determining the reach of domestic statutes must consider the effects of doing so on foreign laws and practices[34]—is straightforward and unremarkable. Moreover, its lengthy treatment of the Alien Tort Statute and other such legal texts is unlikely to interest those unfamiliar with or uninterested in that subject. This section of the book, in which the focus shifts from constitutional analysis to statutory construction, bears out what Breyer means by comity. Breyer urges the United States Supreme Court, and presumably other, inferior courts, “not simply to avoid conflict but also to harmonize analogous American and foreign law so that the systems, taken together, could work more effectively to achieve common aims.”[35] This is an expansive interpretation of comity in that it encourages judges not only “to ensure that domestic and foreign laws d[o] not impose contradictory duties upon the same individual,”[36] the traditional view of comity, but also that judges “increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web.”[37] To achieve comity, so understood, judges must familiarize themselves with foreign laws and customs and can do so through academic journals, treatises, and articles.[38] This advice gestures towards Breyer’s proposal that American judges consider themselves, and conduct themselves as, diplomats.

This proposal, which takes shape in Part III and IV, is not as brazen as it may initially seem because Breyer turns his eye on the role that treaties and other international agreements have played in the domestic legal system. A feature of international law with felt ramifications on the everyday lives and economies of domestic citizens, treaties force judges to contemplate international relationships. Presidents have, over several decades, exercised treaty powers more frequently and on subject matters increasingly more domestic. They have created new agencies that promulgate and enforce rules and regulations, thus leading to new and bigger bureaucracies. “How has the Court’s approach to the interpretation of international agreements adapted to these changes?” Breyer asks.[39] His answer, in part, is that “[i]t has become more important to find interpretative solutions that are workable, thereby showing that a rule of law itself can work.”[40] “[I]t has,” he adds, “become more important for the courts to understand the details of foreign and international rules, laws, and practices.”[41] Breyer’s substantiates this claim with discussions of child custody, international arbitration, and the delegation of authority from domestic to international bodies created by treaty or other such mechanisms.

A certain smugness inheres in Breyer’s remark that “judges who would hesitate to consider decisions of foreign courts when interpreting the American Constitution do not hesitate to consult such decisions when treaties are in question.”[42] Surely, though, Breyer knows the difference between incorporating foreign legal principles into opinions when those principles have merely persuasive value (and no binding operation) in a case and deciphering the outcome-determinative rules in treaties that are at issue in the case as well as a valid source of law under the Constitution.[43] There is a palpable difference between judges in a death-penalty case considering data about how many countries recognize capital punishment[44] and judges in a child-abduction case interpreting the Hague Convention on the Civil Aspects of International Child Abduction, to which the United States is a party. The latter activity has caused the Court to venture “into uncharted legal territories, reckoning with (and at times applying) foreign laws concerning what once were almost exclusively local matters.”[45] It stands to reason that the Court would consider how judges in other countries, bound by the same child-abduction treaty, would interpret the text of that treaty, but why should the Court therefore consider another country’s capital-punishment laws to which the United States never submitted itself, by treaty or otherwise?

Breyer is on better footing in his discussion of the mandatory arbitration provided for in international treaties, which, as they multiply, will increasingly require interpretation by American judges.[46] For obvious reasons, this method of resolving transnational commercial disputes has become more common than court litigation. “[W]hen borders are crossed,” Breyer explains, “arbitration offers the crucially important advantage of forum neutrality—parties can appear before a neutral decision maker without having to be hauled into the other’s courts. The practice is therefore particularly popular among investors in developing countries, who are often skeptical of the local court systems.”[47] It can be vexing to resolve complex disputes between private parties and nation-states for numerous reasons, chief among them being the lack of a widely accepted forum for judicial review;[48] furthermore, the jurisdictional effects of economic globalization are not yet fully known, a fact Breyer acknowledges.[49] Thus, alternative dispute resolution, including and especially arbitration, seems like an area in which Breyer could have done more clarifying and elucidating. With perhaps his strongest points coming in his chapter on arbitration, it’s a shame he spends so little time on the subject, which is rapidly evolving and becoming ever more important to the economic activities not just of governments and large corporations, but of private individuals and small businesses.

It is the matter of socioeconomic, cultural, and political evolution that betrays Breyer’s provincial paternalism. Of course times are changing. Yet when Breyer announces that “[c]hange is upon us,”[50] he seems blissfully unaware of the nature of the change. He is never recklessly explicit about it, but he appears to imply that the United States ought to follow liberal trends that he apparently sees in other countries.[51] If he is correct that “the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad,”[52] then, depending on what he means by “consider,” we may need to prepare ourselves for, to name one possibility, radical Islamic jurisprudence or the spread of intransigent government and messianic statism. Or if Breyer finds unpalatable the form of Islamic law that ISIS, Boko Haram, al-Qaeda, al-Shabaab, or the al-Nusra Front seek to impose on their subjects, perhaps he would prefer China’s two-child policy; India’s abolition of the jury trial; Singapore’s criminalization of littering, chewing bubble-gum, and possessing pornography; or laws prohibiting homosexual activity—some of which carry the death penalty for their violation—in countries from Afghanistan and Saudi Arabia to Dominica and Malawi. I express no opinion here on the value or merit of any such laws outside the United States of America. I raise these examples only to demonstrate the implications and potential ramifications of Breyer’s arguments, which are intended to promote a different vision.

In Breyer’s paradigm “foreign” and “international” appear to mean nothing more than Western European, since he fails or refuses to consider the legal institutions of any Asian, South American, Middle Eastern (Israel excluded), Russian, or African nations. Nevertheless, Breyer seems unaware of the direction the political winds are blowing in the actual flesh-and-blood Europe. Breyer does not strike me as one who would welcome the construction of the chain-link, razor-wire fence—authorized by Hungarian President Viktor Orban—that stretches more than 100 miles along the border of Hungary. Nor do Breyer’s views seem compatible with those of Marine Le Pen and the French National Front, or Laszlo Toroczkai, the youthful Hungarian mayor of Asotthalom, or Geert Wilders, the Dutch founder of the Party for Freedom. Breyer wants Americans to look to Europe to undermine nationalism, yet nationalism is on the rise in Europe.

The French have banned face-covering attire so that Islamic women may not wear a burqa or a niqab. The Swiss People’s Party has become increasingly popular, the Swiss having begun restricting immigration under a quotas law established by a 2014 referendum. The effectiveness and long-term viability of treaties such as the Schengen Agreement among European nations has been called into question. Secessionist movements have sprung up in Scotland, Catalonia, Flanders, and Venetia, and the United Kingdom will soon hold a referendum to determine whether it will remain a member of the European Union, whose future is in jeopardy, as pointedly demonstrated by Jürgen Habermas’s recent plea for European solidarity.[53] The unintended irony underpinning Breyer’s love affair with Western Europe is that, in urging the gradual adoption and enduring “consideration” of foreign laws by American judges, he has laid the groundwork for measures at odds with his liberal, democratic principles.

A vital sense of the interconnectedness of nations has impressed itself deeply in the imagination of certain elites in the United States. It is liable to the type of paternalism exhibited in The Court and the World. In some circles the mere mention of foreign norms or institutions confers upon opinions a prestige too quickly confounded with profundity and intelligence. Even so, the discriminating reader will find little profound in Breyer’s book. Of Breyer’s two chief shortcomings, that of stating the obvious (globalization has caused foreign law to play new roles in domestic controversies) and that of opening domestic courts to the incorporation of foreign law notwithstanding the relevant terms of domestic law or the restraints on such incorporation established by statute or the Constitution, the latter shortcoming is more damaging. Domestic law has mechanisms for dealing with foreign laws. Those mechanisms resolved most of the cases and controversies Breyer discusses in the book. Thus, Breyer hardly replenishes the field of transnational adjudication with fresh insight or makes a compelling case for the embrace of foreign law.

Even regarding the death penalty, Breyer’s advice to look to foreign law for guidance could backfire. According to Amnesty International, executions worldwide were up 28% in 2014.[54] A quick appraisal of Amnesty International’s country profiles on the death penalty reveals that those countries which have abolished the death penalty are experiencing population decline.[55] The death penalty remains popular and prevalent in emerging countries.

Despite his grand vision of judges as diplomats who divine from foreign principles the right and proper course for social action within their jurisdiction,[56] Breyer gently insists on merely humble objectives, muting the vast implications of his argument with careful qualifications such as this one:

“This book is based upon my experience as a judge. It does not survey the whole of international law or even of foreign law as it affects Americans. Nor does it comprehensively describe the instances in which courts must deal with questions involving that law. It illustrates and explains what I have seen and why I believe there is an ever-growing need for American courts to develop an understanding of, and working relationships with, foreign courts and legal institutions.”[57]

Breyer’s description here of what his book does not do is also an adumbration of what his book cannot do: no single book could survey the whole of international law or foreign law as it affects Americans; no single book could comprehensively describe the interaction of international or foreign law with American courts. Nor could Breyer speak from the perspective of someone not himself. Few people, I suspect, object to gaining a greater understanding of foreign courts and legal institutions. Yet the phrase “working relationship with foreign courts and legal institutions” remains problematic. What does it mean? Breyer’s book provides no shortage of possible answers, but the inquisitive reader will come away dissatisfied at the want of clarity.

Breyer’s arguments, finally, are as nothing without the sonorous prose of a Justice Holmes or Justice Cardozo. Anyone could have written this book, which should have been set apart by the fact that its author is a sitting justice. Breyer tells us nothing any close observer of the Court or the legal system could not have said and likely would have said with superior skill and rhetoric. He teases us with passing mention to interactions that are “typically invisible to the general public,”[58] but those interactions remain equally invisible in the book; there are no details about backroom deliberations, about how or why judges and justices compromise their hermeneutics or jurisprudence in the face of international pressure or as a result of some “global” perspective. We’re not told about our Supreme Court justices’ private discussions, research methodologies, philosophical influences, reading habits, or reliance (or non-reliance, as the case may be) on law clerks, amicus briefs, historical documents, or foreign scholarship.

No working judge or lawyer should read this book because most of its subject matter is already recognizable in everyday legal practice to anyone with a basic awareness of professional trends. Those without a legal background will find nothing here that is not already presented more skillfully and comprehensively in casebooks or textbooks. Breyer’s simplistic method (“look abroad, friend”) would have unintended consequences incompatible with his liberal and democratic sensibilities. The Court and the World is a profound waste of effort because it belies its own thesis. This is destined to become “just another book” written by a judge. One might object that a book so unimportant warrants but a short review. On the contrary, a longer review has the benefit of laying bare the many reasons why buying and reading this book is unnecessary. One wonders whether the young, more philosophical Breyer would have developed a more striking argument for his views on transnationalism, or whether he would have inhabited these views at all.

Notes:

[1] Stephen Breyer, The Court and the World: American Law and the New Global Realities (New York: Alfred A. Knopf, 2015), 8.

[2] I do not mean this as an insult. Breyer himself encourages others “to find better and specific responses” than he can offer from his limited vantage point as a justice on the United States Supreme Court. Ibid., 6.

[3] Ibid., 281.

[4] Ibid.

[5] Breyer can be impressively subtle with his advocacy. For example, when he asserts that “our federal courts may eventually have to take account of their relationships with foreign institutions just as they now take account of their relationships with state courts and other American federal and state legal institutions,” he appears, in context and in light of his arguments throughout the book, to mean that federal courts ought to take account of their relationships with foreign institutions. Ibid., 7. The vague verbal construction “take account of” begs the question: What does Breyer have in mind? To “take account of” something seems innocuous and not quite the same as “utilizing,” “following,” or “employing.” The argument that courts ought to “pay attention to” foreign law is not remarkable. It becomes clear, however, as Breyer lays out his argument, that “take account of” means something more like the deliberate implementation and incorporation of foreign laws and norms in the American legal system, a far more controversial notion than simply to notice or observe foreign law with objective distance.

[6] Ibid., 4.

[7] Ibid., 235.

[8] Ibid., 284.

[9] Ibid., 7.

[10] Ibid., 4.

[11] Ibid.

[12] Ibid.

[13] I use the term “reaction” or “reactionary” differently from the way in which that term is employed by, say, Paul Elmer More or, more recently, Mel Bradford and John Lukacs. A full explanation of the manner in which I use the term here would exceed the scope of the piece, even if it would yield valuable returns.

[14] Breyer, The Court and the World, 81.

[15] Ibid., 13.

[16] 132 S. Ct. 1421, 566 U.S. ___, 182 L. Ed. 2d 423 (2012).

[17] 299 U.S. 304, 318-19 (1936).

[18] 323 U.S. 214, 221-22 (1944). Of this holding, Breyer states, “So what happened to civil liberties? How could the Court have reached such a decision? The question is a fair one, particularly since the majority included Justices Black, Douglas, Frankfurter, and Reed, all of whom later joined the unanimous Brown v. Board of Education decision, striking down racial segregation as unconstitutional. The most convincing, or perhaps charitable, explanation that I can find is that the majority, while thinking the government wrong in Korematsu itself, feared that saying so would only lead to other such cases in which the government was right, and that the Court would have no way of telling one kind from the other. Someone has to run a war. In this case, it would either be FDR or the Court. Seeing the folly of the latter choice, the Court elected not to question the President’s actions. This is an argument, baldly put, for broad, virtually uncheckable war powers. But as we have seen, it resembles what many presidents may actually have thought in time of war.” Breyer, The Court and The World, 36.

[19] 317 U.S. 1, 63 S. Ct. 1 (1942) (ruling in advance of a full opinion); 317 U.S. 1, 24-29, 63 S. Ct. 2 (1942) (ruling with full opinion).

[20] In Breyer’s words, “the Steel Seizure case, even if read narrowly, represents a major change in the Court’s approach to the President’s emergency powers. Occasionally a prior case … had pointed to court-enforced limits. But in the Steel Seizure case, the Court both held that limits existed and analyzed the matter in detail. Its conclusion: better the indeterminacy of Pharaoh’s dreams than a judicial ratification of presidential emergency power without limits.” Breyer, The Court and The World, 63.

[21]Ibid., 61.

[22] Ibid., 61.

[23] 542 U.S. 466 (2004).

[24] 542 U.S. 507 (2004).

[25] 548 U.S. 557 (2006).

[26] 553 U.S. 723 (2008).

[27] Breyer, The Court and The World, 80.

[28] Ibid., 81.

[29] Ibid., 80.

[30] Ibid., 13.

[31] Breyer concludes Part I by stating: “Interdependence means that, when facing subsequent cases like those discussed so far, the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad. As to the former, the Court will have to understand in some detail foreign circumstances—that is, the evolving nature of threats to our nation’s security, and how the United States and its partners are confronting them—in order to make careful distinctions and draw difficult lines. This need for expanded awareness will require the Court to engage with new sources of information about foreign circumstances, in greater depth than in the past. Indeed, by agreeing to decide, rather than avoiding or rubber-stamping, cases involving national security, the Court has implicitly acknowledged a willingness to engage with the hard facts about our national security risks.” Ibid., 81.

[32] Ibid., 81.

[33] Ibid., 82.

[34] Ibid., 91-92, 96-97.

[35] Ibid., 132.

[36] Ibid., 92.

[37] Ibid., 91.

[38] Ibid., 96-97.

[39] Ibid., 168.

[40] Ibid.

[41] Ibid.

[42] Ibid., 169.

[43] That Breyer devotes considerable space to his concerns about treaty powers in relation to other constitutional provisions, such as the Supremacy Clause, shows he is alive to this distinction; his concerns also suggest that, under the Constitution, with regard to treaties, there remain open questions among reasonable thinkers about the limits and proper application of the separation-of-powers doctrine. See generally Ibid., 228-235. See also Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Medellín v. Texas, 552 U.S. 491 (2008); Bond v. United States, 572 U.S. ___ (2014).

[44] See Breyer, The Court and the World, 237-39.

[45] Ibid., 170. See, e.g., Abbott v. Abbott, 130 S. Ct. 1983, 560 U.S. 1 (2010); Lozano v. Alvarez, 133 S. Ct. 2851 (2013).

[46] Breyer, The Court and the World, 195-97.

[47] Ibid., 180-81.

[48] See BG Group PLC v. Republic of Argentina, 572 U.S. ___, 134 S. Ct. 1198 (2014) (discussed in Breyer, The Court in the World, 185, 187-92, 195).

[49] Breyer, The Court and the World, 195.

[50] Ibid., 81.

[51] In his responsibly mixed review of The Court and the World, Akhil Reed Amar states, “Left largely unstated is Breyer’s apparent premise that as American judges become more familiar with non-American legal sources …, these very same American jurists will just naturally begin to think globally and to ponder foreign legal materials even in plain-vanilla cases of American constitutional law that do not directly involve foreign events or foreign persons.” Akhil Reed Amar, “Law and Diplomacy,” Los Angeles Review of Books (November 24, 2015) [available online at https://lareviewofbooks.org/review/law-and-diplomacy%5D (last accessed January 3, 2016).

[52] Breyer, The Court and the World, 81.

[53] Jürgen Habermas, The Lure of Technocracy, trans. Ciaran Cronin (Cambridge, United Kindgom: Polity Press, 2010), 3-28.

[54] ”Death Penalty,” Amnesty International Website, “What We Do” (last accessed January 3, 2016).

[55] “Countries,” Amnesty International Website, “A-Z Countries and Regions” (last accessed January 3, 2016).

[56] Breyer submits the following: “When judges from different countries discuss different substantive approaches to legal problems, compare procedures, and evaluate the efficacy of judicial practices, they are not only exchanging ideas about specific tools of the trade. There is more. The underlying, but often unspoken, theme of any such meeting is the sustained struggle against arbitrariness. If the objective is ambitious, it has been so since the time of Hammurabi. The enterprise is not without setbacks. Often, like Penelope’s weaving, what we create during the day is undone at night. But the effort is worthwhile. Civilization has always depended upon it. It still does. And now, to an ever greater extent, jurists from many different countries engage in that effort together.” Breyer, The Court and the World, 280.

[57] Ibid., 7.

[58] Ibid., 5.

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All's Well That Ends Well, Bond, Bonding, Capitalism and Commerce in Imaginative Literature, commerce, Edward W. Younkins, Frederick Turner, law, The Merchant of Venice, William Shakespeare

Bond and Bonding in Shakespeare’s Merchant of Venice

In Arts & Letters, Austrian Economics, Books, British Literature, Economics, Essays, Fiction, History, Humane Economy, Humanities, Law, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Scholarship, Shakespeare, Western Civilization, Western Philosophy on April 6, 2016 at 6:45 am

A bond is an agreement, the unification of individuals or groups under mutual terms. Parents may bond affectionately with their children just as friends may bond affectionately with one another. Marital bonds join spouses in a sacred contract that confers conjugal rights and duties.

A bond is also a security for a debt. Banks may issue and underwrite bonds with fixed interest rates or correlative maturity dates in exchange for the promise of repayment. Bonds may be defeasible, high-yield, low-yield, covered, subordinated, or perpetual. They may be backed by liens or mortgages. There are government bonds, municipal bonds, fiduciary bonds, war bonds. A bond may be an instrument or the name for a type of covenant between persons. Love is not just a bond but something within a bond, if we believe the Countess in Shakespeare’s All’s Well That Ends Well.

In light of this rich multiplicity of meaning, the referent for the isolated term bond is not immediately clear but, instead, contextual. Serviceable explanations for bond depend upon the situation in which it is employed and the circumstances with which it is surrounded. The diverse meanings for bond have in common a reciprocal obligation or indebtedness that is voluntarily undertaken: a bond, whatever else it does, secures a promise or duty.

Sometimes that promise or duty is implicit, as with romantic bonds between monogamous lovers. The term bond is thus pregnant with possibility, yielding manifold associations. “The word itself,” submits Frederick Turner, “contains a fascinating amalgam of positive and negative connotations.”

My essay “A Time for Bonding: Commerce, Love, and Law in The Merchant of Venice,” which may be downloaded at this link, considers the role of bonds and bonding in William Shakespeare’s The Merchant of Venice to undermine the notion that Shakespeare was, to employ a term by Ian Ward, “anti-market” in the play. The Merchant of Venice is instead as multifaceted and polysemous as the term bond and open to an array of interpretations favorable to commerce and business. This essay is part of this collection of essays edited by Edward W. Younkins titled Capitalism and Commerce in Imaginative Literature (2016).

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ambivalence, double consciousness, Edward Said, Henry Louis Gates Jr., Homi K. Bhabha, hybridity, Paul H. Fry, Postcolonial Studies, signifyin', Yale University

Paul H. Fry on “Post-Colonial Criticism”

In Arts & Letters, Books, Britain, British Literature, Eastern Civilizaton, Fiction, Historicism, History, Humanities, Law, Literary Theory & Criticism, Literature, Novels, Pedagogy, Philosophy, Politics, Rhetoric, Scholarship, Semiotics, Teaching, The Novel, Western Civilization, Western Philosophy on February 24, 2016 at 8:45 am

Below is the next installment in the lecture series on literary theory and criticism by Paul H. Fry. The previous lectures are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.

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labor and art, late capitalism, Marxism, mechanical reproduction, Paul H. Fry, socialist realism, The Frankfurt School, Theodor Adorno, Walter Benjamin

Paul H. Fry on the Frankfurt School of Critical Theory

In Academia, Arts & Letters, Books, Economics, Historicism, History, Humanities, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on December 2, 2015 at 8:45 am

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Deidre McCloskey and the Enrichment of the World

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Bond and Bonding in Shakespeare’s Merchant of Venice

Paul H. Fry on “Post-Colonial Criticism”

Paul H. Fry on the Frankfurt School of Critical Theory

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