BOOK REVIEWS FROM TOM PAINE’S LOCKER:
SERIES I - PASSIONATE CONSERVATIVE LIBERTARIANS:
DEFENDERS OF LIBERTY OR PLUTOCRATIC ZEALOTS
Lon Clay Hill, Jr.
Florida Citizen, American Citizen, World Citizen
BOOKS REVIEWED (10 Dec 2011)
Andrew P. Napolitano (2006). The Constitution in Exile: How the Federal Government has Seized Power by Rewriting the Supreme Law of the Land.
Richard Allen Epstein (2006). How Progressives Rewrote the Constitution. BOOKS TO BE REVIEWED (as of December 2011)
Robert A. Levy & William Mellor (2008). The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.
Richard Allen Epstein (1998). Principles for A Free Society.
Full Bibliography in Appendix.
BRIEF PREFACE
In the near future I hope to post several blogs which highlite [sic] recent books by economically conservative libertarian legal commentators. While we do not need to take our label to literally, these commentators share several characteristics which I find very interesting. First, they combine a very ‘liberal’ perspective on laws which effect freedom of speech, privacy, and other individual rights with a very ‘conservative’ approach towards governmental regulation — especially Federal regulation — of economic activity. Secondly, while the commentators I am reviewing advocate relatively abstract legal and constitutional principles and make learned references to both legal precedents and historical sources, they are frequently unusually passionate in their writings. Their legal reasoning (in these books, at least) is combined with appeals to the reader’s moral sensitivities and/or sense of citizenship. Their unusual blend of individual liberty and economic policy suggests that our labels of ‘conservative’ and ‘liberal’ may not be very helpful in fully understanding their actual arguments or positions. To my mind, their almost ‘unlawyerly’ reliance on emotional appeal is even more interesting. Their attempt to clothe their argument in a “Rhetoric of righteousness” makes it clear that they believe they are presenting important issues. In some cases, emotional content can make the existential importance of a controversy more transparent. Indeed, these commentators will frequently make references to the Constitutional Text, to events of history, and to writers such as John Locke, James Madison, Adam Smith and others — to impress upon the reader their central point. They believe that they are being faithful to the letter of the Constitution and, therefore, they are also being faithful to the spirit of the Constitution. While I believe that their arguments often have significant merit — and I will try to recognize such merit — I sometimes have much different response. In some cases, I think their arguments are very little more than intellectual cover for contemporary forms of injustice — especially, economic injustice.
If my thesis is correct, I will need to explain why. My main approach will be to challenge their choice of precedents, their methodology of interpretation, their historical selections, and - occasionally - their economic arguments. I believe their approach to Constitutional interpretation is unnatural, I believe their choice of relevant precedents is egregiously incomplete, and their economic shallowly dependent upon economic privilege. Still, before beginning the debate, let me acknowledge that the reviewer — of course — brings his own presuppositions — or ‘bias’ — to these discussions. This is unavoidable. However, as we proceed, the reviewer will attempt to be transparent about his own values. For starters, the reviewer believes it is impossible to promote individual liberty by ignoring or diminishing the need for public justice…
NOTA BENE (about the sic):
The author frequently uses unconventional spelling when transcribing English words of Germanic origin which are spelled with “ght” and other remnants of spoken English in the times of Alfred the Great. These ungodly Germanic gutturals are linguistic monstrosities which should be buried along with Grendel and the other monsters of the era of Beowulf. To be sure, sometimes variant spellings may be needed to distinguish the meanings of English homophones such as “cite’ and “sight” or “knight” and “night.” Still, for example, there will be no ambiguity when we use “thru” for “through,” “nite” for “night,” or “lite” for “light.”
Book Review #1 (10 December 2011)
Napolitano’s Constitution in Exile: A Passionate Defense of Political Liberty plus some Nostalgic Constitutional Simplification
A Citizen’s Review by Lon Clay Hill, Jr.
From Tom Paine’s Locker: A radical critique of plutocratic bias
in contemporary constitutional discourse.
Andrew P. Napolitano (2006). The Constitution in Exile: How the Federal Government has Seized Power by Rewriting the Supreme law of the Land. Thomas Nelson: Nashville, TN. 290 pages, paper.
Napolitano writes to persuade Americans to return to the original principles of our Constitution. His central thesis is that the nation has witnessed a gradual aggrandizement of Federal Power empowered by wrong-headed Supreme Court decisions. There are several important features in the book which I find to be very attractive. First, he blends relevant historical details into his jurisprudential arguments about present legal controversies. His discussion is always lively and he brings to our attention frequently overlooked and relevant history of the adoption of both the original constitution and its amendments. Secondly, in discussing present controversies I particularly appreciate his criticism to the overreactions to the September 11, 2001 attacks on New York and Washington. His passionate and informed criticism of the Patriot Act is especially compelling. The book has its weaknesses as well. While Napolitano is often an ‘equal opportunity’ critic of both Republican and Democratic “Big Government,” he has the common conservative blindness to the unfree nature of the so-called ‘Free Market.’ And, as we proceed I will raise other issues about his fundamental assumptions. Still, even when he takes narrow and partisan positions, his arguments are relatively transparent. Those who disagree can meet him on his own turf. He begins with the contention that “[A] government that claims it can give you rights can also take them away.” “Fair enough,” I say, “Let the argument begin.”
Early on Napolitano makes the point that adopters of the Original Constitution and the Bill of Rights believed in Natural Law. Napolitano believes that this perspective — most forcefully expressed by Jefferson and Paine — is necessary to understand and properly interpret the meaning and intent of the Constitution as originally understood. While I grant Napolitano the general proposition that the Framers believed in natural Law, I must add two important stipulations.
The first stipulation is that there have always been differences in opinion about the meaning of the original Constitution. Several important Framers had a more expansive view of National-Federal power than did Thomas Jefferson — whose views on Constitutional matters are similar to Napolitano’s views in important respects. A decisive indicator that my own views are more in accord with the actual reality is that the Anti-Federalists attacked the Constitution precisely because they believed that the Constitution’s language would lend itself to an expansive interpretation of Federal Powers (which they opposed). The reach of such Broad Phrases such as ‘necessary and proper,’ ‘the Supreme Law of the Land’ and the ‘Commerce Clause’ were singled out as dangerous portents -- providing an important rational for not adopting the Constitution.
My second stipulation is that the meaning of the Constitution cannot be frozen in time. In the first Instance, every Amendment to the Constitution is not simply a new rule. Every Amendment leads to further changes in our understanding of the Constitution as a whole. This is particularly the case with the Civil War Amendments which incorporate the principle that the Federal government can be used to insure ‘due process’ when State law and practice fail. As many people today do not believe in Natural Law, there is no requirement that Judges of a Free People should blindly follow the chimera of a reasoned consensus of 1890’s. John Marshall got it right when he said “It is a Constitution we are expounding.” Our nation would not have made what modest progress we have made precisely because we as a People have been able to grow in our understanding of the principles of our founding documents. Some very painful events such as a Great Civil War were necessary, but our understanding of the deeper meaning of freedom, liberty, democracy, justice and Our Constitution have been changed by our history. We have no duty to the Constitution if it is not OUR CONSTITUTION.
In Chapter Two Napolitano sees the work of John Marshall as the beginning of the problems of Big Government. In subsequent chapters he proceeds to sketch out American history as the legacy of Supreme Court sanctioned legislative overreach. Actually, I am more than sympathetic to some of his complaints. What I am not so sympathetic to is his contention that the growth in Federal Powers is simply one of Constitutional distortions driven almost exclusively by Federal political ambition. His critique of Lincoln is overbroad — but I even am more troubled by his portrayal of Lincoln as a purely static figure than with some of his criticisms per se. More important is Napolitano’s assertion that “Jefferson ... like Reagan, understood that the states created the federal government.” This strikes me as a dangerous half-truth. I do not believe that the opening words of the Constitution, “We the people of the United States” are hypocritical surplage used to disguise fundamental state sovereignty. Neither the States nor their Union have any moral legitimacy apart from the people which these political entities embody.
Napolitano’s arguments about Lincoln mostly leave out the issue of slavery. While Napolitano makes some critical remarks about slavery early in the book, he chooses to essentially focus on State sovereignty issues. As the defenders of slavery propounded their doctrine of State Sovereignty for nearly a century, as the defenders of segregation propounded their doctrine of States’ Rights for the next century, and as the current defenders of economic injustice have propounded their doctrines of corporate insulation against Federal restraint for the past few decades — it is clear to me that the ideologues who cast their governmental critiques almost exclusively in indiscriminate castigation of Federal power are persistently hypocritical. To Napolitano's credit much of his criticism of governmental policies are directed against real abuses of power. However, his failure to address equally real abuses of power and privilege by entrenched economic entities and local corruption vitiates his analysis. No government — local, state, Federal, or a future world government — has or can have an exclusive claim on our loyalties. As humans, most of us will always be reluctant to stage revolt against our own local or or distant governments. Still we will have to make decisions about when to cooperate, when to stall or when to revolt as circumstances demand. Democracy is and has always been unfinished business.
Book Review #2 (10 December 2011)
Richard A. Epstein: How Progressives Rewrote the Constitution - A Case Study in Ideological Class Warfare
A Citizen’s Review by Lon Clay Hill, Jr.
Richard Allen Epstein (2006). How Progressives Rewrote the Constitution. Cato Institute: Washington, DC. 157 pages.
This book is very nice because it brings out very clearly some of the guiding assumptions of Epstein’s thought — assumptions which are harder to penetrate in some of Epstein’s more formal elaborations. I am very glad to see this book because my first introduction to Epstein was to his emphatic declarations on a CSPAN program where his authoritative confidence was in full display and the assumption of erudition was clearly presumed by his audience. I review elsewhere Levy & Mellor’s The Dirty Dozen, featuring an Epstein introduction, which discusses in detail several of the cases alluded to by Epstein. [F1]
This book elaborates upon a lecture delivered in 2004 to the Cato Institute. The primary thesis is that important changes in Constitutional interpretation of property rights initiated by early 20th Century ‘Progressives’[F 2] represented an improper “rewriting” of the Constitution which should be reversed. In particular, Epstein argues that various Court decisions, especially those made when FDR appointees dominated the Court, presented ‘new’ interpretations of the Original Constitution’s Commerce and Contract Clauses and of the ‘Takings Clause’ of the 5th Amendment — interpretations he believes were persistently and improperly based upon “Progressive” legal theory. [F3] According to Epstein these Court decisions altered or reversed previous Court decisions and undermined the property rights of individuals. I intend to deal here with the assumptions of Epstein’s arguments. I would expressly stipulate that if one accepts Epstein’s assumptions one would be generally inclined to accept Epstein’s general conclusions. I, of course, do not accept his assumptions for reasons that will soon become evident. As a general proposition I also accept Epstein’s assertions that those early ‘progressive’ decisions are often influential even in the decisions of today's ‘conservative’ justices — but I think reasons for this continuing influence are considerably less straightforward than Professor Epstein imagines.
At various point of attack, Epstein cites favorably several conservative opinions of the late 19th Century and early 20th Centuries and and dissents of various the ‘Four Horsemen’ of the 1930’s [F4]. Epstein often approves of the reasoning of these [usually very economically conservative] opinions because he believes they were properly based upon the judicial norms embraced by the Founders. [F5] The Founders opinions, he avers, were based upon a “Classical Liberal Synthesis”. To be sure, his argument is suggestive enough — many of the Framers, early Judges and Lawyers, and other supporters of the Original Constitution elaborated notions of Natural Law which they proposed during the Revolutionary era and during the first few decades of the new Republic. And, in particular, many of them were very favorable to ideas proposed by John Locke on property rights. However, Epstein really begins to get into the weeds when he suggests that the writings of John Locke and Adam Smith provide a definitive and ‘proper’ perspective to determine the meaning of the Constitution’s text as applied to contracts, commerce, property rights and other economic controversies.
The fundamental flaws of Epstein’s approach are both general and specific. At the most general level, Epstein continually suggests that there was once a single and consensual understanding of such terms as ‘commerce’ and ‘obligations of Contracts.’ It is quite true that the meaning of these terms have changed during the country’s history. However, as Leonard Levy has demonstrated in his book, Original Intent and the Framers’ Constitution, the meaning of such important terms and clauses have always been disputed. In many cases the language of the Constitution was adopted with full knowledge that its phrases were compromises crafted to get the nation started and that the parties would continue to fight their political wars inside the new union instead of 13 isolated states. The nations early political conflicts between Madison and Hamilton, between Jefferson and Marshall, and between John Quincy Adams and Andrew Jackson were but new manifestations of unresolved conflicts of both interest and interpretation which were present at Convention Hall in the summer of 1787 and during the ratification process of 1787-1788.
But there is an even deeper flaw. Epstein almost completely ignores the disputes over slavery which led to the Civil War and the 13th, 14th, and 15th Amendments. The Dred Scott decision [F6], which undid the embedded compromises of the original Constitution, was itself an exemplar of Constitutional reasoning in the spirit which Epstein attempts to defend. The whole point of Taney’s opinion was that interference with slaveholders’ rights outside the Southern slave states represented a denial of the slaveholders’ contractual rights. Indeed, without the advantage of insight or hindsight, Taney’s Opinion appears on its own terms to be a Treatise on Economic law. Using the Contract Clause to extend the Rights of Slaveholders into the Territories is presented as simply a matter of the Constitution’s Protection of Slaveholder Economic Liberty. Of course, the very notion that human beings could be owned was in direct conflict with the principles articulated and the covenant implied in the Declaration of Independence and the Preamble to the Constitution. Whenever property rights come in conflict with our unalienable rights and the establishment of justice, those ‘rights’ are constrained. That was true before the Civil War, it was true during the 1930’s, and it is true today. Epstein is, of course, not alone in downplaying the historical relevance of the Civil War, but — in my view — his failure to fully appreciate the implications of the Gettysburg Address undercuts his moral authority. Half slave and half free or half rich and half poor, a nation with slaves or a nation with a permanent underclass cannot stand. [F7]
Thus, Epstein exaggerates when he writes, “They [the Progressives] saw in constitutional interpretation to rewrite a Constitution that showed at every turn the influence of John Locke and James Madison into a different Constitution, which reflected the wisdom of the leading intellectual reformers of their own time.” [page 135] The issue is not whether Madison influenced the Constitution — of course he did. The question is whether there was ever a ‘proper’ Madisonian interpretation of the Constitution and, furthermore, whether such a Madisonian interpretation was ever a consensual interpretation. Madison himself declined to insist that there was a proper, definitive interpretation and did not allow his notes on the Constitutional Convention to be published while he was alive. The second question answers itself - Madison’s influence on Constitutional issues was considerable and it was (and still is) usually respected, but the early political conflicts between the Federalist and the Democratic Republican reflected continuing differences in how the Constitution should be interpreted. In this context, the reference to John Locke is even less illuminating. Of course, many of the Constitution’s Framers and Ratifiers were influenced by the ideas of John Locke. And, surely many of them may have read the text thru the lens of Lockean theory. The text of the Constitution, however, is shorn of specific stipulations concerning the actual standards of interpretation. The justices do not swear an oath to uphold the ideas of John Locke, George III, George Washington or James Madison — however influential and helpful those ideas might be.
And, the question is not whether the Progressives displayed any particular ‘wisdom’ per se. I would assert that the only way the progressive reformers could be faithful to their particular covenant with the Constitution was to interpret the Constitution in terms of that covenant’s deepest principles — articulated in the Declaration of Independence, the Gettysburg Address, and the Preamble to the Constitution — and in the light of their own historical experience. The words emblazoned above the entrance to the Supreme Court, “Equal Justice under the Law” do not bespeak a covenant with someone else’s understanding or a simple commitment to the literal ideas and practices of a past generation. “Equal Justice under the Law” is a covenant with the issues of our day and with our own understanding of justice and law. To be sure, our understanding is informed by principles articulated in our Constitution and by our knowledge of its history, but — as humans with a history — our understanding also includes inevitable changes in how we understand those principles. This seems especially true in economic issues where agricultural and local economies have been displaced or even replaced by national and international institutions and forces.
At several places within the text, Epstein chastises ‘Progressives’ because they neglected the wisdom of Adam Smith in understanding the Commerce and other economically important clauses of the Constitution. Again, while a judge’s intellectual understanding of economics inevitably effects his/her legal judgment in assessing Constitutional disputes with economic consequences, Epstein is again sloppy about judicial responsibility. It may very well be true that most 19th and early 20th Century Constitutional jurisprudence in economic matters was roughly consistent with the “Classical liberalism” exemplified by Adam Smith’s Wealth of Nations. However, belief in or even informed awareness of Smith’s “invisible hand” is not a requirement for legitimate Constitutional interpretation. While the first edition of Smith’s Wealth of Nations appeared in 1776, the impact of his work was not fully felt until well after the adoption of the Constitution. One could perhaps argue, as it were, that the “Ghost of John Locke” was present at the Constitutional Convention during the drafting of the Commerce and Contract Clauses. However, Adam Smith was absent and alive in England. He was not a delegate to the Convention nor a subsequent ratifier. The implicit suggestion that 20th Century progressives were ‘rewriting’ the Constitution because they did not sufficiently appreciate Smith’s ideas is the economic ideological equivalent of having a religious test for political office. We are reminded of Oliver Wendell Holmes remarks in Lochner:
“But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. [198 U.S. 45, 76] It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” [F8]
The weakness of Epstein’s economic ideology is further evident in his defense of early 20th century Court decisions which struck down minimum wage and child labor laws [F9]. At several places he argues that laws raising the minimum wage or restricting child labor may hurt the workers or worker’s families. His is the all-too-familiar refrain of the exploiter expressing his concern for the exploited. To be sure, Epstein is not quite as obvious as the segregationist who asserted that the participants in the civil rights movement were “hurting their own cause.” And, of course, he doesn’t reach the depraved depth of John Calhoun and other slaveholders who spoke about the benefits of slavery and Christianity for slaves. But it’s the same refrain. The poor or the relatively powerless or the labor unions just don’t understand how the present system really works to their benefits…
This book was a great disappointment to me. Epstein has some useful things to say about government overreach and bureaucratic inefficiencies and he has some more than useful things to say about individual liberties. His discussion about the suppression of Free Speech during World War I and the internment of Japanese during World War II [F10] strike me as particularly pertinent today. These actions — often supported by important parties in the political alliances of the day — were shameful. The roles of Justices Holmes in the Schenck case and Justices Black and Frankfurt during several World War II cases serve as reminders that at times the Court can get it wrong — woefully wrong. However, Epstein’s comments on individual liberties are — in my mind — vitiated by his equation of economic ‘rights’ with our other inalienable rights. This confusion of ‘economic rights’ — so often based upon unearned wealth and institutionalized injustices — with our inalienable rights makes much of this work an ideological defense of plutocratic excess. Economic inequalities in this country are now comparable in scale to the inequalities which were once part of the inequalities of racial segregation. I hope that Epstein’s Principles for A Free Society — another book on my reading list — reaches a higher level of discourse.
Footnotes [Review #2]
Footnote # 1 -- Helvering v. Davis (1937); Home Building & Loan Association v. Blaisdell (1934); Nebbia v. New York (1934); United States v. Butler (1936); United States v. Carolene Products Co. (1938); Wickard v. Filburn (1942) are discussed in detail. Full case citations are in the Case Citations Appendix.
Footnote # 2 -- It should be noted that Epstein’s use of the term “Progressive” is somewhat loose at best and is often pejoratively selective. I would call myself a progressive - and I, too, am absolutely appalled by some Frankfurter statements which Epstein criticizes. When Frankfurter wrote about patriotism he was frequently about as progressive as a horse’s rump.
Footnote # 3 -- The 3 clauses are found in the Appendix of Constitutional Clauses.
Footnote # 4 -- Justices James Clark McReynolds, Pierce Butler, George Sutherland, and Willis Van Devanter.
Footnote # 5 -- Epstein also weaves into his narrative two important cases about individual liberties authored by McReynolds, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). However, meritorious tho they be, these cases are largely irrelevant to the arguments he makes in defending the Court’s interpretation of ‘economic’ liberty.
Footnote # 6 -- Technically, the Dred Scott decision is legally cited as either Scott v. Sanford, 19 Howard 393 (1857) or as Scott v. Sanford, 60 U. S. 393.
Footnote # 7 -- This thesis is fleshed out in George Fletcher’s Our Secret Constitution.
Footnote # 8 -- Lochner, 198 U.S. 45, 75-76.
Footnote # 9 -- To my mind Epstein’s discussion of Hammer v. Dagenhart (1918) is particularly obnoxious.
Footnote # 10 -- Schenck and Korematsu are given special notice.
APPENDICES:
Constitutional Clauses, Bibliography, Case Citations, and Footnotes
Constitutional Clauses
Article I, Section 8 - The Commerce Clause
“The Congress shall have power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Article I, Section 10 - The Contracts Clause
“No State shall … pass any Law impairing the Obligation of Contracts.”
Amendment 5 - Compensation for Takings
“No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Bibliography
Richard Allen Epstein (1998). Principles for A Free Society. Perseus Books: Reading, MA. 360 pages.
Richard Allen Epstein (2006). How Progressives Rewrote the Constitution. Cato Institute: Washington, DC. 157 pages.
Fletcher, George P. (2001). Our Secret Constitution. Oxford Univ. Press: Oxford. 292 pages.
Leonard W. Levy (1988). Original Intent and the Framers’ Constitution. Ivan R. Dee: Chicago. 525 pages, paper.
Robert A. Levy & William Mellor (2008). The Dirty Dozen: How Twelve Supreme Court cases Radically Expanded Government and Eroded Freedom. Cato Institute: Washington, DC. 302 pages, paper.
Case Citations
Hammer v. Dagenhart, 247 U.S. 251 (1918)
Helvering v. Davis, 301 U.S. 619 (1937)
Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934)
Korematsu v. United States, 323 U.S. 214 (1944)
Lochner v. People of State of New York, 198 U.S. 45 (1905)
Meyer v. Nebraska, 262 U.S. 390 (1923)
Pierce v. Society of Sisters, 268 U.S. 390 (1925)
Nebbia v. New York, 291 U.S. 510 (1934)
Schenck v. United States, 249 U.S. 47 (1919)
Scott v. Sanford, 19 Howard 393 (1857) (aka “Dred Scott”)
United States v. Butler, 297 U.S. 1 (1936)
United States v. Carolene Products Co., 304 U.S. 144 (1938)
Wickard v. Filburn , 317 U.S. 111 (1942)
