Southern California friends: I'll be giving a special pre-release presentation about my new book, The Permission Society, at my alma mater, Chapman University School of Law, on August 29 at 5 o'clock. Free to the public. Although the book won't be officially out till September 13, it will be available at the event. Please join us!
The Objective Standard's fall issue is now available online, and it has the first of my three articles on the influence of the Greeks on America's founding fathers. The first focuses primarily on Thomas Jefferson and Epicurus. The second, in the winter issue, is about how the founders, especially James Madison, learned from the Greeks what not to do. The third, in spring, 2017, involves the Greek Revolution and American Civil War.
I’m sorry that I wasn’t able to get to Randy Barnett’s new book sooner.Our Republican Constitution is a fantastic contribution to the cause of constitutional freedom, and should be near the top of anyone’s list who wants to learn about the crucial constitutional issues of the day. It’s simultaneously succinct, clear, and thorough, and—if I may be so vain—is an excellent companion to my own book,Conscience of the Constitution. This is particularly because Barnett includes much material that I do not discuss—especially his discussion of Chisolm v. Georgia. When I came to that part of the argument while writing Conscience, I admit that I panicked at the thought of trying to explain it, and decided to just skip it. Barnett manages to cover it in just a few pages, accurately, succinctly, and in a way that gets to the heart of a case that can be pretty rough slogging even for experienced constitutional lawyers.
Another highlight of the book for me was Barnett’s point that the Progressive judges and law professors changed the terminology of judicial protection so that instead of referring to the courts’ “duty” to strike down unconstitutional laws, they came to call it a “power”—and thereby changed our conception of the judges’ role. “Powers can and should be exercised with discretion or ‘restraint,’” Barnett observes, “but we don’t speak the same way of our duties.” That’s right—it was through this reconceptualization that the Progressives were liberated to argue that the courts should decide in an essentially political way whether or not to strike down unconstitutional laws. New Dealers laffed and laffed when the Supreme Court said in United States v. Butler that the judge’s job is to “lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.” They insisted that the courts are political bodies that ought to ditch that aspiration to objectivity in order to serve higher social goods. But in fact, the Butler Court was right, and by thinking of judicial review as a “power” instead of a “duty,” later generations of judges have helped perpetuate the myth that judicial review is a form of “activism.”
I'll be sitting in for Andy Caldwell on Thursday, 3-5 pm Pacific, on AM 1440 / AM 1290. My guests will include colleagues and former colleagues from the Pacific Legal Foundation and the Goldwater Institute, to talk about the future of freedom in America. You can listen online here.
Update: If you missed it, you can listen here: Hour 1 / Hour 2.
A few days ago on Armstrong & Getty I mentioned the Arrow Impossibility Theorem and how a majority vote does not, and typically can not, actually reveal what most people want. I'm afraid I wasn't very good at explaining it briefly on the air. Here's the explanation I like, by Prof. Donald Boudreaux, who taught it to me. The basic idea is this. Let's say there are three people who want to decide what to have for lunch. The possible choices are apples, bananas, and cantaloupe. Tom wants apples. If he can't have apples, he wants bananas. If he can't have bananas, he'll pick cantaloupe. Richard wants bananas first, then canteloupe, then apples. Bob would prefer canteloupe first, and if he can't have that, he'd rather have apples, and if he can't have that, he'd prefer bananas:
Tom: 1. apples, 2. bananas, 3. canteloupe
Richard: 1. bananas, 2. canteloupe, 3. apples.
Bob: 1. canteloupe, 2. apples, 3. bananas.
Now, what does the majority prefer? Well, nothing. There's a 3-way tie. But notice: both Tom and Richard prefer bananas to cantaloupe. Both Richard and Bob prefer cantaloupe to apples. Both Tom and Bob prefer apples to bananas.
Time to vote! They can only pick one, so they'll have a "primary" election first. In the primary, it's apples versus bananas. Tom votes apples. Richard votes bananas. Bob votes apples. So apples wins and moves on to the "general" election, between apples and cantaloupe. Tom votes apples. Richard votes cantaloupe. Bob votes cantaloupe. So...Cantaloupe wins! Yay! That was what the majority wanted, right? But no. Only Bob wanted cantaloupe. The only thing the majority agreed upon was that it did not want cantaloupe.
Now let's switch it up, just for fun, and this time in the "primary" let's do apples versus cantaloupe. Bob votes cantaloupe. Richard votes cantaloupe. Tom votes bananas. Cantaloupe wins! And in the general election, between canteloupe and bananas, Bob votes cantaloupe; Richard votes bananas; Tom votes bananas. Bananas wins! Yay! that was what the majority wanted, right? But no. Only Richard wanted bananas. The majority wanted something else.
But notice something else. We've done two elections now, and they came out differently. But between the two elections, nobody's preferences changed. The only thing that changed was the order in which we ran the "primary" and "general" elections.
This is called the Condorcet ("con-dor-say") Paradox. It's the basis of the Arrow Impossibility Theorem, which explains that there is no way to eliminate this influence between how an election is run and the outcome of that election. So long as there are more than two choices, what matters is what order the "primary" versus "general" elections operate.
This is only one reason why a pure democratic system does not do what its supporters claim: i.e., demonstrate the "true will of the people." (Another is the difference between stated and revealed preferences. There's also the problem of rational ignorance.)
This month's Cato Unbound focuses on the Indian Child Welfare Act, and its deplorable consequences for America's most vulnerable citizens. The first article is by me; there'll be back and forth from other authors throughout August.
I quoted from Federalist Paper No. 1: "[A] dangerous ambition...often lurks behind the specious mask of zeal for the rights of the people... [T]hose men who have overturned the liberties of republic...have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants."
"[T]he historical world is a horrid place where, instead of nice clean measurable forces, there are messy things like mixed motives, where classes keep overlapping, where what is believed to have happened is as real as what actually happened, a world, moreover, which cannot be defined by technical terms but only described by analogies." --W.H. Auden, quoted in Arthur Kirsch, ed., W.H. Auden: Lectures on Shakespeare xiv (2000)
Check out this amazing sunset phenomenon from the other day. Note how the cloud creates a strong shadow so that it's dark on one side and bright on the other:
Now here's the view you saw if you turned 180 degrees around and looked in the other direction. The shadow was so strong that it was dark on one side of the sky and bright on the other across to the other horizon. It brought to mind E.E. Cummings' line, "pulling all the sky over him with one smile."
Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victimhood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion….
[T]he ideas that underlie fascist actions are best deduced from those actions, for some of them remain unstated and implicit in fascist public language. Many of them belong more to the realm of visceral feelings than to the realm of reasoned propositions…. I call them “mobilizing passions”:
• a sense of overwhelming crisis beyond the reach of any traditional solutions;
• the primacy of the group, toward which one has duties superior to every right, whether individual or universal, and the subordination of the individual to it;
• the belief that one’s group is a victim, a sentiment that justifies any action, without legal or moral limits, against its enemies, both internal and external;
• dread of the group’s decline under the corrosive effects of individualistic liberalism, class conflict, and alien influences;
• the need for closer integration of a purer community, by consent if possible, or by exclusionary violence if necessary;
• the need for authority by natural chiefs (always male), culminating in a national chieftan who alone is capable of incarnating the group’s historical destiny;
• the superiority of the leader’s instincts over abstract and universal reason;
• the beauty of violence and the efficacy of will, when they are devoted to the group’s success;
• the right of the chosen people to dominate others without restraint from any kind of human or divine law, right being decided by the sole criterion of the group’s prowess within a Darwinian struggle.
Hillary Clinton and Donald Trump are both disgraceful candidates, but Trump represents something especially sinister. It’s not just that he’s neither a Republican nor a conservative. It’s not just that his political views—to the extent that he has any—are the opposite of those articulated by the Republican Party since at least 1980. It’s not the embarrassing way he seems bound to prove true every slander liberals have leveled at the GOP for a generation—embracing nativism, racism, populist prejudices and resentments. It’s not that he’s basically illiterate, cannot speak the English language, and scorns the very notion of learning. It’s not even that his whole campaign is motivated by envy, hatred, and fear. (The U.S. already has a party that rejects liberty, that sees America as a land of exploitation rather than opportunity, that opposes private property rights and free trade, and thinks government should provide us with all the things we wish and the meaning our lives lack. That party is the Democratic Party. Why the GOP would choose to become that party is beyond me.)
There's a difference between those who break the law—or who, like the Clintons, do so but come up with clever arguments for why their behavior is legal—and those who openly defy the authority or normative force of law itself, and appeal solely to a politics of power and personal command. The latter is the path of barbarism, as so much horrible history shows. It’s the path of personalrule, as opposed to the rule of law. They say hypocrisy is the tribute vice pays to virtue. Trump’s overt contempt for the supreme law of the land represents a refusal even to pay that tribute, and therefore a decisive break with the normative bond of our Constitution. He is, with a few exceptions, just what Lincoln warned of in his Lyceum Speech.
In that address, Lincoln foretold the way that lawbreaking—in this case, the Obama Administration’s—encourages “the lawless in spirit…to become lawless in practice,” which, in turn, causes “good men, men who love tranquility, who desire to abide by the laws, and enjoy their benefits, who would gladly spill their blood in the defense of their country” to “become tired of, and disgusted with, a Government that offers them no protection;,” and to lose their aversion to radical political change “in which they imagine they have nothing to lose.” When this happens, and the people have lost their attachment to the Constitution, “men of sufficient talent and ambition will not be wanting to seize the opportunity, strike the blow, and overturn that [Constitution].” Those men then put forward a dictator who, “distain[ing] a beaten path” will “thirst and burn for distinction; and, if possible, it will have it.” (Lincoln thought it would be a man of “genius.” Apparently that was the part he got wrong.)
This warning wasn’t new with Lincoln. The Founders knew that democracy’s greatest weakness is its susceptibility to demagogues, or what they called Caesarism. Caesar led his rebellion against Rome in the name of the populares—the common man—but in fact for his own personal power. He overthrew the republic and created his empire in the name of making Rome great again, but through a political creed that equated that greatness with the vindication of his own name. Caesar personalized politics—made everything about him personally. “Caesar’s claim was not a programme,” writes historian Christian Meier, “but a plea for his personal right, for the honour he was owed on the basis of his achievements.” The same is true of Trump.
Sift, if you can, through his bitter and endless harangue at Cleveland, and you find only the mindless and baseless assertion that Trump alone—not we, the people, but the Leader Himself—can fix all our problems, not through some considered plan, but simply through the sheer force of his indomitable will. The principle of democracy is not supposed to be will—it’s supposed to be persuasion. For Trump, however, politics is not a matter of consensus, contract, negotiation, principle, or common cause. It is a matter of command, pride, and the charismatic domination of the Leader of the People.
This is Caesarism—or, more precisely, its cheap 20th century imitation, fascism, as created by Benito Mussolini. Trump cannot speak the language, is not wealthy, and has no record as a military hero, which is why he is not actually Caesar. (To be fair, he did avoid getting a sexually transmitted disease, which he likens to Vietnam War service, and he was not captured like McCain was.) And Trump is far too stupid—boastfully ignorant—to have an ideology, which is why he’s not Hitler or Stalin. But then, these things were also true of Mussolini, who like his pyrite 21st century facsimile was a poorly-educated boor and business failure who used media popularity and boastful demeanor to bully and con his way into power. Trump, lacking even a basic knowledge of economics or constitutionalism, simply falls back on his consummate self-absorption, and thus on the politics of Personal Rule, as did Il Duce before him.
America’s seen fascist leaders in the past—most notably Huey Long,Charles Lindbergh, and Henry Ford. But they never got this far, and few had Trump’s sheer pride in his own ignorance. He represents a politics of “Because I Say So” that has simply never before been a major player on the presidential stage, not even in the days of Andrew Jackson (like Trump, a mentally unstable tyrant) or Franklin Roosevelt (like Trump, lacking in principle, commitment, or understanding of basic principles of politics or economics). Trump is not the head of a movement—he is the movement. He has no ideological commitments—he is the commitment. He has no program or party—he is the party. This is why he does not fit within the GOP as it existed, but demands that it conform to him. We’ve seen all of this before. It is the Leader Principle of fascism.
Trump does not deny these things. As they say, this wolf comes not in sheep’s clothing, but as a wolf. This is a man, after all, who thinks the communist tyrants of the USSR and the PRC treated dissidents too gently. And his supporters, too, agree with virtually everything I’ve said. They just say Clinton’s worse. But this is not true. She is, as P.J. O'Rourke has said, awful within normal parameters. Trump represents a rejection of those parameters—of the very idea of parameters. His outsider status means that he operates outside the vocabulary of American constitutional politics. True, we’ve had terrible presidents doing unconstitutional things before. We’ve repaired some of the damage they did, but much of that damage remains unfixed. In any event, even the worst presidents in the past at least genuflected at the altar of our constitutional structure. Trump promises to smash that altar.
His outsider status, Trump claims, is his main virtue. In fact, it’s extremely dangerous. An anti-establishment candidate is a good thing only if he or she knows what he or she is doing. Otherwise, the chances of going wrong are just too great. That’s why revolutions devour their young—and that’s why we built an establishment in the first place. It should not be changed without reason to believe a better alternative is possible. This Trump does not offer. His candidacy is an open assault on the mores of our political culture, such as respecting the rights and dignity of opponents, listening to what fellow citizens have to say, honoring our legal duties and treaty obligations; and it is all done in the name of hatred, envy, and fear, with nothing but the strength of his individual will to replace our hard-won institutions. No, it’s not that he is terribly dangerous himself. He’s probably too unintelligent to do much harm personally. But he will surround himself with a volatile collection of stooges and Pashas, of Rasputins and Grand Viziers, of roaches and rats hiding under his throne, who will wreak true havoc in his name—all with the future of our nation and the world at stake.
Even this, many Trump supporters will admit. They claim, however, that Congress can impeach him if he goes too far. This is absurd. First, Trump has already gone too far, many times, and Republicans continue to support him, and even to break their own party rules to ensure he prevails at any cost. Second, these same Trump supporters also claim, and with some justification, that the Republican Congress failed to do enough to resist Obama. There is no reason at all to imagine Congress will do more to resist a member of their own party, especially if he appears to have a strong constituency willing to commit violence. America is safer with a President and a Congress of different parties—virtually always. And, as Alexander Hamilton said, “If we must have an enemy at the head of Government, let it be one whom we can oppose, and for whom we are not responsible, who will not involve our party in the disgrace of his foolish and bad measures.”
It is imperative that Americans of all parties soundly defeat Donald Trump and what he represents.
Update: In case this was not clear, I plan to vote for Gary Johnson, and I hope you will, too.
Update 2: A couple people have said that Trump will pick better Supreme Court justices. Nonsense. There's no reason whatsoever to believe this. His purported "list" is an easy and cheap lie; anyone with access to the Federalist Society website could make a better one. And nothing commits him to it. Also, Trump openly endorses the Court's awful Kelo eminent domain decision. There is no reason on earth to think he'd pick good justices. Clinton's husband picked Breyer and Ginsburg. Not my favorites, but still highly competent and good on some issues that are important to freedom; better than Scalia in many instances. So, no. This argument does not work.
I'm delighted to be presenting a special "alumnus book talk" at my alma mater, Chapman University School of Law, on August 29. Even better, this event will be a special pre-release event for my new book, The Permission Society, which won't be officially published till September 13. Copies will be available at the event, so you can get it early. The event's open to all, but I think you may have to register. Registration info hasn't yet been posted, but will be here. Please join us!
Not having to ask permission is one of the most essential parts of freedom. To be free means to be able to make one’s own decisions – to take “the open road,” as Walt Whitman put it, “wherever I choose” – without first seeking some kind of approval from a superior. Freedom does not mean the right to do whatever pleases, regardless of harm to others – “for who could be free,” asked John Locke, “when every other man’s humour might domineer over him?” Instead, freedom means a person’s ability to “dispose, and order as he lists, his person, actions, possessions, and his whole property,” without having to obey “the arbitrary will of another.” Freedom means the ability to follow one’s own will: to do as one chooses with oneself – with one’s own abilities and property – without being required to ask leave of somebody else.
This is the difference between rights and permissions. We have freedom when we can make the operative choices about our lives – about what to say, what our religious beliefs are, what jobs to take, or what to build on our property. To the degree that we must ask someone else to let us act, we do not have rights but privileges – licenses that are granted, on limited terms, from someone who stands above us.
Under the rule of monarchy, subjects enjoyed no freedoms except those that the ruler chose to allow. Someone wishing to travel, preach, start a business, publish a book, or engage in any number of other activities was first required to obtain permission from the authorities. Under such rules, the people enjoyed only privileges, not rights. Their freedoms took the form of forbearance on the part of the ruler, which could be revoked at any time. When America’s founders broke with the mother country, they sought to reverse this polarity. The government of the new United States would not give permissions to people but would have to ask permission from the people. The founding fathers pledged their lives, fortunes, and sacred honor to the proposition that all human beings are fundamentally equal, with none enjoying any special right to rule another. Government existed not to give people rights, but to protect the rights that were already theirs.
Sadly, today America is gradually losing this principle of freedom and becoming instead what I call the Permission Society – a society in which our choices are increasingly subject to government pre-approval. Whether it be building a house, getting a job, owning a gun, expressing one’s political beliefs, or even taking a life-saving medicine, laws and regulations at the federal, state, and local levels now impose permit requirements that forbid us to act unless we first get permission from the government. Thanks in particular to ideas that originated with the early twentieth-century Progressive movement, today’s leading politicians, judges, intellectuals, and activists now believe that we are not free unless and until the government says we are.
This book examines this dangerous trend and how we can fight back. I look at some of the different ways permit requirements affect our daily lives: from the most famous such rule – the “prior restraint,” which forces people to get permission before they may speak – to rules that require property owners to pay the government money or give it land in exchange for permission to build homes, to laws that force business owners to get permission from their own competitors before they may start operating, to laws that require government approval to take life-saving medications. These laws expand the power of the state, stifle innovation and entrepreneurship, and do violence to the basic principle of equality on which our nation’s institutions rest. Our Constitution promises more – and Americans deserve better.
I'm quoted in Susanna Schrobsdorff's article on the politics of Star Trek in Time magazine's 50th anniversary of Star Trek issue. It's only available in stores, not online, so you'll have to head to Barnes and Noble to pick it up. But if you enjoy it, don't miss my Claremont Review of Books article on Star Trek and the history of liberalism, and my Libertarianism.org podcast on the politics of Trek.