it’s snowing in Richmond
December 10, 2009
F26 and the Golden Mean
Posted by Lily under Federalist | Tags: books, Federalist, constitutional law, federalism |[4] Comments
F26 continues Publius’s argument against restraining the federal government’s ability to provide for the national defense (principally by means of maintaining a standing army). He focuses in this essay on how the Constitution provides checks and balances within the federal government itself, which he argues are sufficient in and of themselves to restrain the army’s power—thus, no need to restrict such power by tipping the balance of federalism more towards the states.
I haven’t thought a lot about the connection between the Constitution’s checks and balances and the Aristotleian concept of the Golden Mean, but F26 draws the parallel pretty explicitly. The first paragraph mentions that war (specifically, in this case, the Revolutionary War) rarely gives rise to moderation in the public mind. “That happy mean” between “the energy of government” and the “security of private rights” is a “delicate and important point.” And war is a blunt instrument. It is bound to land us too far on one side or the other of the delicate balance. Publius offers a scary anti-vision where the USA bounces from one failed Articles-of-Confederation-like governmental structure to another, and then to another (as he puts it, “one chimerical project to another”), never actually settling in the felicitous middle.
Aristotle says that the virtues are those qualities which are warped by either deficiency or excess. E.g. courage: someone who lacks all courage and constantly runs away is a coward, while someone who fears nothing is rash. In this way the virtue of courage depends on a “mean” between two extremes. (See Nichomachean Ethics, Chapter 2.) Similarly, F26 seems to argue that if we have too little governmental power on the one hand, our social contract breaks down, and we may as well dispense with the states and nations completely and govern on the county level. The evils of the other extreme, too much governmental power, hardly need to be described, since the audience has only recently emerged from a war against what they perceived to be absolute monarchy. Constitutionally forcing Congress to re-evaluate military funding every two years, Publius argues at length, strikes the perfect balance in the standing army debate, because “it is impossible that the people could be long deceived; and the destruction of [a project to undermine the civil government] would quickly follow the discovery.”
It’ll be fun to watch future Federalist Papers for other instances of such “golden means” being struck by the proposed Constitution. No question the ancient Greeks were a big influence on the Founding.
December 5, 2009
The federalism of privileges and immunities
Posted by Andrew under constitutional law, law | Tags: federalism |[5] Comments
It is conventionally understood that the Supreme Court’s Slaughterhouse decision destroyed the most straightforward route with which Congress could protect the fundamental rights of American citizens: the 14th Amendment’s privileges and immunities clause. The Supreme Court decided Slaughterhouse in 1873, shortly after the states ratified the 13th, 14th, and 15th Amendments. To protect rights after Slaughterhouse, goes the conventional understanding, Congress had to resort to the far less straight-forward vehicles of the commerce clause (as in the 1964 Civil Rights Act); and courts had to invent substantive due process (as in Lochner and Roe). (I’ve tacked the amendment’s first section over to the right for reference.)
Indeed, if a federal legislator wants to destroy Jim Crow, that legislator would surely prefer legislating with a Constitutional provision forbidding any state laws that “abridge the privileges or immunities of citizens of the United States”; rather than with (as in 1964) a clause allowing you to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Alas, Slaughterhouse squashes Constitutional common-sense reasoning; you must put aside the knife to carve a turkey with scissors (themed analogies).
I re-acquainted myself with that problem recently. Several amicus briefs for McDonald v. Chicago, the gun-rights incorporation case up this term, argue that the 14th Amendment’s privileges and immunities clause is the proper avenue for the Court to apply the second amendment to the states, and that the Court should overturn Slaughterhouse. The Volokh Conspiracy has been aflutter, as many contributors are libertarian minded, gun-right advocating, legal academics. And then I happened to read, “The Legacy of Slaughterhouse, Bradwell, and Cruikshank in Constitutional Interpretation,” in which Professor Huhn passionately recites the familiar line that “the Court practically eviscerated the Privileges and Immunities Clause of the 14th Amendment.”
At some point, in reading the briefs, that paper, the 14th Amendment, and the Slaughterhouse majority and dissents, I found myself agreeing more with Justice Miller’s Slaughterhouse majority opinion than with the legal academics, and contrarianism is at least worth exploring when it feels right.
How did Slaughterhouse do so much harm?
Critics of Slaughterhouse write that Justice Miller’s wrong result resulted from wrongly distinguishing state and federal citizenship. Justice Miller, they say, ignored the hierarchy of citizenship that the 14th Amendment created: that, we are primarily federal citizens, and secondarily state citizens. Then, he placed most fundamental rights – like the freedom to earn an honest living, that was at issue in Slaughterhouse - in the realm of rights deriving from state citizenship, a realm of rights not protected by the 14th Amendment.
From the Heritage Foundation:
The citizenship clause defines both federal and state citizenship, making them not separate as the majority in Slaughterhouse concludes, but one derivative of the other – state citizenship a necessary result of federal citizenship. Accordingly, all of the privileges or immunities one possesses as a federal citizen include the privileges or immunities one gains as a citizen of a state.
From the Cato Institute’s brief in McDonald v. Chicago:
…[the] central error [in Slaughterhouse] is that the Court ignored the Amendment’s underlying premise: namely, a revolution in federalism that placed national authority over state autonomy and protected a wide array of national rights against state governments.
From Professor Huhn:
[T]he straightforward language of the 14th Amendment … made state citizenship secondary to national citizenship. …Slaughterhouse … turned that unmistakable hierarchy on its head ….
So, Miller’s misreading of he 14th Amendment’s scheme of citizenship led to his failure to conclude that the 14th Amendment allows the federal government to protect fundamental rights. Let’s look at the text of the 14th Amendment that Justice Miller so slaughtered:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States ….
Justice Miller quite rightly read the 14th Amendment’s distinction of state and federal citizenship.
This is my understanding of the 14th Amendment in regards to citizenships and the privileges and immunities clause: The amendment begins by addressing the federalism at the heart of the Nation and the struggle at the heart of the then recent Civil War – that we are nationally and locally political beings; and each person (including ex-slaves) is a citizen of the Nation and their state (a direct overturning of Taney’s Dred Scott).
The amendment assures that each U.S. citizen enjoys a threshold of fundamental rights. States can create more rights, but cannot encroach those fundamental rights. The 14th Amendment does not create a hierarchy of citizenship – a person is both a citizen of her state and of the U.S., and, for purposes of the 14th Amendment, one citizenship does not trump the other. Finally, the 14th Amendment does not create a federal scheme of enforcement against private behavior; its first and fifth clauses are directed at Congress’s ability to control state action.
The real problem in the decision is that Justice Miller wrongly wrote that fundamental rights derive mainly from state citizenship. As expanded upon below, I think he did this short-sightedly. But, contrary to the observers I’ve read, the rights-landscape that Miller created in Slaughterhouse does not destroy the ability of subsequent Justices to base fundamental rights from federal privileges and immunities.
And, importantly, Miller’s distinction of state and federal citizenship is a useful continuation of the slightly mysterious federalist nature (like a holy duality) of the United States that we have pondered since 1787.
Some context…
…is useful, in light of the racist motivations sometimes attributed to Justice Miller’s Slaughterhouse opinion. (My guess is that a lot of folks confuse the case with Dred Scott.)
The Slaughterhouse Cases resulted from a Louisiana law, descriptively titled, an “Act to Protect the Health of the City of New Orleans, to Locate the Stock Landings and Slaughter Houses, and to incorporate the Crescent City Livestock Landing and Slaughter-House Company.” The legislation was not innovative—several big cities consolidated slaughtering companies to get their cholera inducing byproduct out of the water supply.
Former Justice John Archibald Campbell argued the case for the Butchers’ Benevolent Association, and did so within a larger legal program to frustrate Radical Reconstruction. (We mentioned, a while back, Charles Lane’s book on a sibling case, Cruikshank. Also check Michael Ross’s Obstructing Reconstruction: John Archibald Campbell and the Legal Campaign Against Louisiana’s Republican Government, 1868-1873.) To cast a deserved shadow on Campbell, note that, in his Justice days, he joined the majority in Dred Scott.
The 13th, 14th, and 15th amendments, among other things, incorporated former slaves into full, American citizenship. Campbell used the new amendments in his arguments for the(white) butchers – perhaps deliberately overusing the arguments based on the new amendments to water them down, or at least firmly extend their coverage to those not newly enfranchised. He argued that the slaughtering monopoly resulted in involuntary servitude (banned by the 13th Amendment), and he used every possible bit of the 14th Amendment to argue against the process inadequacy, liberty deprivation, and unequal protection of the Louisiana statute.
Justice Miller’ s response to Campbell’s arguments, in his Slaughterhouse opinion, insisted that the 14th amendment must be understood in light of the civil war and was primarily written to protect former slaves’ privileges and immunities. One can easily imagine the decision as an attempt to shut Campbell up.
Justice Miller’s Opinion
Professor Huhn argues that the Slaughterhouse majority rejected the plaintiff’s claim that “the right to earn a living at an honest occupation – although a fundamental right, was not a ‘privilege or immunity of national citizenship’ within the meaning of the 1th Amendment.” His cite is to the opinion, 83 U.S. 36, 73-74.
On those pages, Justice Miller discussed the first lines of the amendment, and their impact on citizenship. It seems to me, though, that Justice Miller was endorsing the notion that the amendment corrected Dred Scott.
But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled, and if was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen were still not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.
To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” …[I]t overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt.
Miller then notes that the next paragraph (the privileges and immunities clause), “which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.”
This section of the opinion does not decide whether the right to earn a livelihood is one based on federal or state citizenship; it simply makes the correct point that the privileges and immunities clause protects a set of rights that are enjoyed by U.S. citizens.
…Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.
This conception of distinct sets of federal and state rights does not strike me as a rights-reducing proposition leading necessarily to Jim Crow . Rather, Miller’s reading creates a federalist scheme of rights wherein states can expand upon the threshold national rights enjoyed by every U.S. citizen. So, if a state’s population decided to ordain particular freedoms, it could so do; so long as the state does not subtract national privileges and immunities.
Professor Huhn writes that, “[i]n placing state citizenship over national citizenship, the Slaughterhouse Court reflected the view of John C. Calhoun.” (p4 of the linked copy) The Calhoun quote that Huhn quotes is from 1833; Calhoun was discussing the Article IV privilege and immunities clause, and dismissing the notion of federal citizenship. The Slaughterhouse dissent also picked up the quote.
If by citizen of the United States he means a citizen at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found in the entire mass of our population. Notwithstanding all the pomp and display of eloquence on the occasion, every citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.
In Dred Scott, the Court embraced Calhoun’s view of citizenship. Slaughterhouse clearly divorced the Court from that stance. So, it cannot be that Slaughterhouse’s fatal flaw is it’s embrace of Calhounian, state-centric citizenship. Miller stressed that the 14th Amendment made U.S. citizenship a reality – you are a citizen of the state and of the union; and you carry with you, wheresoever you go among those states, your U.S. citizenship and the federal privileges and immunities.
In its search for a clearly delineated federal set of privileges and immunities, the majority opinion is correct.
Substance, not structure
The Slaughterhouse Cases did not create a structural impediment to federal protection of fundamental rights via the 14th Amendment’s privileges and immunities clause. The opinion did not reverse the 14th Amendment’s hierarchy of citizenship because the 14th Amendment did not create a hierarchy of citizenship.
Rather than a structural problem, Slaughterhouse presented a substantive problem over just what are federal privileges and immunities. That problem does not require overturning Slaughterhouse to spur the privileges and immunities clause into action. Rather, courts can determine that, as says Huhn, “Americans have both the right and the moral duty to protest fundamental injustice anywhere in the United States, because these are matters of national citizenship, not state citizenship.” (at p7 of my copy)
Justice Field’s dissent in Slaughterhouse was correct in clarifying that the 14th amendment did not create or define any privileges; rather, it “assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation.”
But I don’t think the dissent was correct (nor the scholars since) in concluding that the majority confined the federal set of privileges and immunities to those that existed “ before [the 14th Amendment’s] adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States.”
Field believed that the majority’s opinion mooted the founder’s work; “that a vain and idle enactment, which accomplished nothing.” But this forgets Dred Scott, which surely the drafters had in mind when crafting that first sentence. The majority clearly embraced that purpose.
So, what are the federal privileges and immunities?
This is where the action ought be for scholars and courts: what privileges and immunities have a national nature? Slaughterhouse did not provide a litmus test for federal rights. The majority looked at “privileges and immunities” clauses in the Articles of Confederation and Constitution, and in antebellum precedent. This is where the majority might have seen trees rather than a forest, and where Miller might have let his desire to quash Campbell’s right-to-earn-a-living claim cloud his vision of the larger intended impacts of the 14th Amendment.
The original privilege and immunities clause’s “sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”
Which is to say, treat outsiders at least as well as you do your own.
…the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?
The 14th Amendment does not transfer rights-protection duties, and I agree with Miller’s hesitancy in establishing the federal government as the sole arbiter of rights. But he wrongly confines fundamental rights to state citizenship. It ought, though, to be possible for a Justice to determine that fundamental rights now arise from National citizenship; or, even, that the fundamental right arises from both, and the federal government can enforce against states that deprive citizens of those rights. Further, the 14th Amendment does not state that the federal government can only protect those privileges and immunities existing after the Civil War. It seems to me that a privilege might derive from federal-citizenship now that did not in 1877; and that the Court could so find, within the scheme set out in Slaughterhouse.
Justice Miller, somewhat amusingly, looked into certain privileges that had a federal nature at the time of his decision – things like the “care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government.” In 1873, one could argue that was the narrow scope of our fundamental rights; at the time, the concept of incorporation of the Bill of Rights was still formative. But, as our federalism has evolved, it seems natural that the rights associated with state and federal citizenship would likewise evolve. There is nothing, anyway, in Slaughterhouse, preventing that.
November 24, 2009
My last paper as a history major, as a segue from being a classicist student to law school, was on Augustus’s attempt to affect Roman social behavior with laws. The heart of the query was on the effectiveness, and meaning, of the laws he endorsed touching on adultery and child rearing (the Lex Iulia de Ambit, Lex Iulia de Maritandis Ordinibus, and Lex Iulia de Adulteriis Coercendis). I think my conclusion was vague; the law does not lead society, nor society necessarily the law – they are intertwined and inform each other.
My true classicist brother pointed me to a good book on the general issue of law and social morality back then: David Cohen’s Law, Sexuality, and Society: The Enforcement of Morals in Ancient Athens. It was a great help.
I wish this article had been out, back in 2000. It is Christopher W. Schmidt’s “Freedom Comes Only From The Law”: The Debate Over Law’s Capacity and the Making of Brown v. Board of Education. The article looks into law’s force in establishing social behavior and opinion.
Since the late nineteenth century, most Americans agreed that racial progress would be achieved by education rather than legislation. Improving race relations required attacking prejudicial attitudes rather than discriminatory actions—the logic being that the latter was only the product of the former. In the years leading up to Brown, a pervasive, commonplace argument against civil rights legislation and judicial rulings was that beliefs, not laws, dictated behavior. This was the assumption of the Plessy Court—that laws were “powerless to eradicate racial instincts” and “social prejudices.” This was the claim captured in the popular dictum put forth by Yale University sociologist William Graham Sumner, which encapsulated the prevalent social-Darwinist assumption of the Jim Crow era, that “stateways” were powerless to change “folkways.”
As you may guess, the article takes on that conventional wisdom. At least, I guess that – I’m only as far as the introduction. If it goes as it seems, I wish Schmidt had published it a decade back.
November 19, 2009
the privileged class, and their damned immunities
Posted by Andrew under constitutional lawLeave a Comment
Inspired by Sunstein, I spend a fair enough share of time reading blog posts from the Volokh Conspiracy, and frequently enjoy the discussions. Because several conspirators favor reading the second amendment to allow an individual gun ownership-right, they have posted aplenty on McDonald v. Chicago – the case before the Supreme Court this term that may incorporate the 2nd amendment to the states. What has really struck my interest is one of the plaintiff’s angles: the Court ought to incorporate the 2nd amendment with the 14th amendment’s privileges and immunities clause.
I’m pretty sure the following sentence is not hyperbolic: the Constitutional law sea change that would be effected by such a move would out-rank Brown v. Board and Roe v. Wade. A decision agreeing to overturn the Slaughterhouse cases would equal Marbury and Dred Scott in Constitutional importance.*
Back in August 2007, I mentioned a good question from a panel discussion: why isn’t Dred Scott more prominent in our explanation of the 14th amendment? You would think that, with state vs federal citizenship being at the heart of Taney’s decision — that decision being so clearly representative of the losing side in the Civil War, and the 14th amendment being the legal staple to the victorious side — that the citizenship discussion in the 14th amendment would clearly be understood in light of Dred Scott. Remember, Scott didn’t have standing because, wrote Taney, he was not a citizen. So:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Well. All that came to mind while I read a recent article on Slaughterhouse, the case that supposedly stripped all effect from the 14th amendment’s privileges and immunities clause. The conventional wisdom is that the case transferred to the states the power to enforce rights, thus depriving the federal government any ground to enforce fundamental human rights except under a bizarre theory of substantive (as opposed to procedural) due process. No one (left or right) has enjoyed the system, but it has continued on for a century and a half. Until, hope some, now.
So we’ll dedicate a little time to rights, citizenship, and the 14th amendment in the next post or two.
*Here’s my quick argument – Brown and Roe didn’t change the structure of Constitutional argument – they worked within existing structure. Marbury and Dred Scott affected jurisprudential structure – the former set the table for the Court’s last word on Constitutionality and the latter is, what I’d argue, what the 14th amendment attempted to correct (in regards to citizenship).
November 18, 2009
Gilded stern rules
Posted by Andrew under administrative law | Tags: administrative law |Leave a Comment
There are two Jeffrey Rosen’s in DC that write about law. One does so, frequently, for the New Republic, and professes at George Washington. The other does regulatory law, and just wrote a column for the Administrative and Regulatory Law News circular that I receive every so often.
The column describes the door that the Supreme Court opened, via Massachusetts v. EPA, to plaintiffs challenging an agency’s decision to decline a petitioner’s invitation to make a rule. Denials of rulemaking petitions never caused agency-lawyers much anxiety before Mass; but now, argues Rosen, general councils should be sending updated legal advice to their agencies’ rulemaking divisions.
The EPA argued, in Mass, that it didn’t have authority to regulate greenhouse gases; and, if it did, it would not (citing several policy reasons). The Court held that: (1) yes it did; and (2) the Clean Air Act (CAA) directs EPA to make some particular considerations while making rules, and EPA’s policy reasons for denying the petition did not fit the bill.
The first issue is a failure of Chevron step one. No new ground for regulatory lawyers there. The second, argues Rosen, is a hugely new route that lawyers could take when challenging petition denials. Rosen writes that the Court relied “on an aggressive interpretation of the CAA” and “presented a very narrow view of what the agency could consider in response to a petition for rulemaking, insisting that an agency must ‘ground its reasons for action or inaction in the statute.’”
Citing Scalia’s dissent, Rosen implicitly takes issue with the Court’s “aggressive interpretation,” writing that “the Court took the standard the EPA was required to use during rulemaking proceedings and required it to use that standard to decide whether to institute rulemaking proceedings in the first place.”
Got that? It does sound a bit problematic.
But, I’m not sure* whether Rosen is identifying what sticks out to me as a major distinction: The petition at issue in Massachusetts v. EPA addressed an already existing clean air rule. Rather than urging that EPA create a new rule, the petition urged EPA to expand the rule’s coverage to greenhouse gases. Because the rule was already in existence, the Court could treat EPA’s reasoning with the standards that would be in effect during rulemaking. On the other hand, if no rule at all existed, the agency would not have been subject to the reasoning-requirements set out in the CAA.
Valid distinction?
*I’m genuinely not sure – and will update if a closer read of Mass suggests otherwise.
November 16, 2009
Zinger line from Woodrow Wilson’s 1887 paper, The Study of Administration:
“The bulk of mankind is rigidly unphilosphical; and nowadays the bulk of mankind votes.”
But, here is the money line – really sums up the point of his work:
The weightier debates of constitutional principle are even yet by no means concluded; but they are no longer of more immediate practical moment than questions of administration. It is getting harder to run a constitution than to frame one.
November 4, 2009
now everyone’s a madman
Posted by Andrew under rhetoric, society | Tags: market, media, rhetoric |Leave a Comment
Worth keeping tabs on this one – New York, via its next gubernatorial candidate, Andrew Cuomo, filed an antitrust action against Intel. From NY Times:
The lawsuit charges that Intel violated state and federal laws by abusing its dominant position in the chip market to keep its main rival, Advanced Micro Devices, at bay. Intel has faced similar lawsuits in Asia and Europe, and in May the European Commission fined the company a record $1.45 billion for antitrust violations.
These cases have largely revolved around deals Intel had struck with computer makers and retailers that, regulators said, pressured them into picking the company’s microprocessors — which serve as the central chip inside personal computers and servers — instead of competing products from A.M.D.
Speaking of Intel, am I alone in finding their latest ad campaign pompous? The USB’s co-inventor walks into a room to wild adoration: “Your rock stars aren’t like our rock stars.” A guy makes – a + and giggles: “Your jokes aren’t like our jokes.” And then, a bunch of efficient hummers alertly offer the Intel jingle.
Compare the theme to several other recent ad campaigns. Bank of America shows a bunch of folks (an attempt at a sort-of visual quilt of American workers) walking forward to suggest that we, collectively, are moving past the financial pits. Mac-guy is supposed to represent everyman – or, hip everyman – excluding only the red staple holders of America. PC (Microsoft) celebrates over-achievers and they are a bit neo-geeky, but the commercials includes the audience as a potential member of the “I’m a PC (and saving the world with smart-_____ )” club.
So Intel took a new turn with such explicit elitism. It makes some sense – we want elite technicians making our microchips. But, the ads leave a sour note. They are almost funny, and could have kept the same theme. I think their failure is the Our ___ are not like your ___. That’s just off-putting and mean.
November 1, 2009
candidly ignorant
Posted by Andrew under books, history, law, politics | Tags: Voltaire |Leave a Comment
The latest set of teaching company I’ve been listening to is U Penn Professor Alan Charles Kors on Voltaire. I’m really glad I picked this one – it was a fairly random, thus serendipitous, pick.
Kors describes Voltaire as an elusive thinker. Voltaire admitted as much: “The secret to being boring is to reveal everything.” The take-away impression I have of Voltaire’s method, via Kors’s lectures, is of questioning rather than pronouncing. Voltaire’s approach reminds me of that which Plato ascribed to Socrates, more gadfly than know-it-all.
Although Candide is all I remember reading, the little philosophical tale is rightly picked by high-school curricula-crafters as a glimpse to the prolific author. I read it maybe 15 years ago – and I remember it having fun with the idea that we live in the best of possible worlds; and I remember really liking Candide’s closing charge to “cultivate our garden,” stemming from the advice he got that doing so “keeps away three great evils: boredom, vice, and need.” Luckily, I still have my copy of Voltaire’s little philosphical tales – looks like I paid $0.45 for it, used, at the Bookshop in Chapel Hill. But that questioning of (or, poking at) Pangloss’s rigidly held view that this is the best of possible worlds – and the fairly limp non-conclusion – is, from what I understand, fully Voltairian.
Candide resulted partly from Voltaire’s anguish at the horrific 1755 earthquake in Lisbon, and the clash that disasters (and human-generated pain) have with Leibnizian Optimism – that this is the best of all possible worlds (God alone is perfect; in creating the world, God had at its disposal all possible worlds; because God is benevolent, God could logically only have created the best of all potential worlds). Voltaire seems to have consistently adhered to a notion of what we now call intelligent design. So, it is not surprising he would see some logic in Optimism. But, the 1755 quake, and generally the problem of bad things happening, were ultimately irredeemable for Voltaire. He could not stomach the optimist reply to Lisbon – Jean-Jacques Rousseau wrote that the earthquake was a helpful gesture from God towards simpler, agrarian living. People are not supposed to love in cramped cities; earthquakes don’t cause such harm in pastoral societies. Against that thinking, Voltaire wrote Candide. The comfort that we can find against pain and tragedy is to till our earthly garden and cultivate our human bonds.
In any event, let me bring this around to something.
We’re long interested in the Constitutional founding here on OR, and I’m wondering how Voltaire fits in the mix. John Adams mentions him a few times in letters to Jefferson as “the greatest literary character” of the 18th century, and he (Adams; Jefferson’s letters don’t outright mention Voltaire) mentions reading Voltaire’s works. But I don’t find Adams relying on Voltaire directly to make philosophical conclusions. Would they have felt like heirs to Voltaire?; rivaling thinkers?; did they think Voltaire affected their political philosophy? I constantly thought of Jefferson while listening to Kors’s lectures. I think Jefferson has some of Voltaire’s eagerness to question; and to put on an aegis of open-minded query; to argue a point without full self-awareness / self-criticism; but, to have the propensity to come around to a fairly opposite view in another time.
I’m interested in Voltaire’s time in England, and subsequent Letters on England. This ties back to the Founders question – Voltaire praises the legal and normative English setting, favorably comparing the pluralistic (religiously) society to France. Around the same time, Blackstone summarized the English common law in his Commentaries. And about a decade later, the U.S. declared independence and, after another decade, framed the Constitution. Had the Founders read Letters on England while contemplating how to create a legal structure that would foster the society the Voltaire praised?
What I’m particularly interested in, for purposes of the Voltaire-Blackstone-to Jefferson line of thinking mentioned above, is Voltaire’s thinking on natural law. Blackstone’s Commentaries, from what I understand, adopt the notion that history consisted of a progression of improvement to the present. Natural law helped determine the common law. Natural law is potentially what Jefferson relied upon when pronouncing self-evident truths; at least, Jeremy Bentham thought so when ridiculing the Declaration. Elusive Voltaire wrote an entry on Natural Law in his Philosophical Dictionary. He seems to criticize (with Bentham?) the notion that there can be self-evident “just and un-just.” It will be good to dig in a bit more into this, and the intellectual backdrop to the founding.
There is something to Voltaire’s style – his way of thinking – that resonates in the system of law that we created, with due credit to English common law. I wonder if there was a bit of anti-aristocratic sentiment that flowed through to the Founders; the same type of sentiment that precludes most politicians, even today, from running in the character of an aristocrat. Bush’s brush clearing, indeed, is only an update to Franklin’s coonskin cap.
Jesuits schooled Voltaire in a style that focused on forming strong arguments that predicted points of opposition (much like a legal brief). Voltaire’s writing (early on, I think it was drama) got him into some aristocratic circles. But, he was not aristocratic, and was not defended by aristocrats when he got into a snaffoo with an actual aristocrat. So, Voltaire took an exile to England. I have to imagine that his experience with aristocracy in France shaded his opinion of England. I wonder if he always had a chip on his shoulder. From the lectures, I know Voltaire writes about pluralistic religious society in England; I’m not sure what else he covers.
For now, we’ll close with this line from that entry in the Philosophical Dictionary:
“You are right, there is a natural law; but it is still more natural to many people to forget it.”
October 27, 2009
The Open Congress blog has had a few posts on movement on legislation that would address holes in the antitrust laws through which insurance companies happily pass. The most recent, I think, is this one on Sen. Reid’s appearance in a Senate Judiciary Committee hearing:
Since 1945, the McCarran-Ferguson Act has given the states the authority to regulate insurance companies rather than the federal government. The law also stipulates that if the companies are regulated by the states, they won’t be susceptible to federal anti-trust laws that ban anti-competitive, monopolistic practices like price fixing, bid rigging and dividing up markets amongst themselves.
In a rare appearance as a witness in a Senate Judiciary Committee hearing on the issue, Reid said that repealing the companies’ anti-trust exemptions is “something that should have been done a long time ago”
