Paine on War

"It may with reason be said, that in the manner the English nation is represented, it signifies not where this right resides, whether in the Crown, or in the Parliament. War is the common harvest of all those who participate in the division and expenditure of public money, in all countries. It is the art of conquering at home: the object of it is an increase of revenue; and as revenue cannot be increased without taxes, a pretence must be made for expenditures. In reviewing the history of the English government, its wars and its taxes, a by-stander, not blinded by prejudice, nor warped by interest, would declare, that taxes were not raised to carry on wars, but that wars were raised to carry on taxes."

—Thomas Paine

TGIF: Sam Harris on Saving Democracy from Voters

Neuroscientist/philosopher Sam Harris caused quite a stir recently by defending the social networks' conspiracy (his word) to suppress news coverage of Joe Biden's son Hunter's smoking-gun laptop shortly before Election Day 2020. Harris said the suppression was justified because Donald Trump was such a threat to America that he had to be defeated whatever the cost to the election's integrity.

In other words, according to Harris, such tampering is okay as long as he deems it necessary to save American democracy from the voters.

The social networks are privately owned, of course, but remember that Facebook chief Mark Zuckerberg has acknowledged that the FBI warned him, shortly before the New You Post broke the laptop story, that unspecified major Russian disinformation aimed at the election was about to surface. The authenticity of the laptop, with its damaging emails about Hunter Biden's lucrative business dealings with Ukrainian and Chinese entities while his father was the vice president, was known early on and has since been confirmed by others. Even the New York Times now concedes it. Allegations of Russian election tampering had as much merit in 2020 as they had in 2016, when Trump was portrayed by his critics as a Russian stooge.

But with or without prodding from the FBI, the social network operators, should not have suppressed the laptop story for a host of obvious reasons. These businesses acquired huge numbers of participants on the promise that they would be open forums. When they first began to interfere with that process, the networks let users down. To do this during a presidential election is a particularly egregious disservice. Why do people still depend on them for information? (No, this does not justify antitrust action.)

I leave it to others to debate whether Harris's assessment of Trump is accurate. I'm more interested in the principle Harris has set out.

Although I am as far from Trump fandom as anyone could be, the first question I would ask Harris is whether he considers himself the only person wise and trustworthy enough to decide if a candidate is sufficiently threatening to justify concerted suppression of unflattering information about the other candidate. If he says yes, then he's as self-centered as Trump. If he says no, he might do us the courtesy of spelling out how that decision would be made. Does he want a constitutional office created? How would the decider be chosen?

If he were to answer my questions, I would move on to this one: what makes him think that if his principle was adopted, he would like its future applications? Supreme Court justices have often disappointed the presidents who appointed them. For similar reasons, the decision makers anointed to carry out the Harris principle might somewhere along the way disappoint him. Harris must be a lousy chess player because he doesn't think even two moves ahead.

Still, Harris's remarks do raise an interesting dilemma. It's not a new conundrum: what if democracy looks to be on a suicide course? Does the "sacred" principle of majoritarianism, which libertarians as individualists abhor, extend to the principle itself? Or is it proper to cripple democracy to save it?

Small-d democrats might say, "Yes -- temporarily." But there's the rub. The future is uncertain. Temporary in intent is not necessarily temporary in fact. Governments taught us that long ago. We know that people don't like to give up power, as Lord Acton taught us. Power doesn't only tend to corrupt; it attracts the already corrupt. Wouldn't that suggest that democracy should never be suspended or tampered with in the present for fear that the winner of an election might suspend or tamper with it in the future? What say you, Sam Harris?

If this problem is addressed only after it arises, it's probably too late. The time to think about it is before a democracy with few real limits on power is launched. The War Games line, spoken by the computer after learning that nuclear war is futile, applies: "The only winning move is not to play."

It's not as if the original classical liberals and their libertarian descendants didn't warn us. Individualist political economists and social philosophers long ago pointed to the dangers of a democratic state with the power to meddle in all aspects of people's lives. For these thinkers, the whole point of laissez-faire in the age of democracy was to keep elected rulers, and thus the electorate itself, out of our private peaceful productive affairs so that the contest for political power would not become socially and economically disruptively cutthroat. When the government is just about omnipotent, everyone will want to get to their hands on it -- if only for defensive purposes.

Even if those pioneering political economists did not want to dispense with government entirely (a few did), they understood that society essentially runs itself without a heavy-handed state because people generally understand that their best interests are served through cooperation with others. Thomas Paine, for example, in Rights of Man wrote:

Great part of that order which reigns among mankind is not the effect of government. It has its origin in the principles of society and the natural constitution of man. It existed prior to government, and would exist if the formality of government was abolished. The mutual dependence and reciprocal interest which man has upon man, and all the parts of civilised community upon each other, create that great chain of connection which holds it together. The landholder, the farmer, the manufacturer, the merchant, the tradesman, and every occupation, prospers by the aid which each receives from the other, and from the whole. Common interest regulates their concerns, and forms their law; and the laws which common usage ordains, have a greater influence than the laws of government. In fine, society performs for itself almost everything which is ascribed to government.

Thus, at most, governments should be kept on a short leash, with their powers dispersed and their missions held to the barest minimum necessary to protect the peace, that is, individual rights. If we can eliminate the state altogether, even better!

What the good liberals didn't tell us -- because there's no magic formula -- is how to keep government to the bare minimum. Constitutions are no guarantee, are they? Today's libertarians are still working on cracking that nut. Most people are not going to read books on political philosophy or economics, even something as accessible as Frédéric Bastiat's The Law. So somehow we must strive to create a taboo against asking the government to do anything more than keep the peace in ways that respect everyone's rights. How do we do that?

TGIF: Alito's Challenge to Libertarians

In his recently leaked first draft of an opinion that would reverse the abortion-rights cases Roe v. Wade and Casey v. Planned Parenthood, Supreme Court Justice Samuel Alito gives Americans a choice between judges who read their personal preferences into the Constitution and judges who recognize only rights that they find "rooted in [our] history and tradition" and deem "essential to our Nation's 'scheme of ordered Liberty.'"

Is that it? Neither choice seems an adequate safeguard for individual freedom.

Whether one likes the result or not, Alito's draft in Dobbs v. Jackson Women's Health Organization raises important issues apart from abortion. Indeed, he unintendedly draws attention to whether the Constitution can be relied on to protect liberty. Unsurprisingly, Alito is not concerned with rights as a philosophical matter. That's not his job. Rather, he's concerned only with constitutional rights -- liberties that satisfy criteria making them worthy of protection by the government. By that standard, an otherwise perfectly defensible right might not qualify. That would be left to the legislative process. That's the constitutional game. The framers understood this, though some libertarians do not.

The Constitution may seem to clearly endorse a general notion of liberty in the 14th Amendment's due process clause, but does it really? Alito, like other conservatives, thinks not:

Historical inquiries ... are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the same thing” In a well-known essay, Isaiah Berlin reported that “[h]istorians of ideas” had catalogued more than 200 different senses in which the terms had been used.

In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution.

So, Alito writes elsewhere in his opinion, "[G]uided by the history and tradition that map the essential components of our Nation's concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term 'liberty' when the issue involves putative rights not named in the Constitution" -- such as a woman's putative right terminate a pregnancy.

Note that Alito uses the term ordered liberty. That's a concept in the case law, apparently first enunciated in 1937, that "sets limits and defines the boundary between competing interests.” Why must the term liberty be so qualified? Because, he writes, “attempts to justify abortion [and other things --SR] through appeals to a broader right to autonomy and to define one's 'concept of existence' prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history."

If that counts as "proving too much," libertarians would say let's do it.

Alito hastens to add that other court-protected rights that are not deeply rooted in history -- such as the rights to contraception, interracial marriage, and same-sex marriage -- are not jeopardized by his opinion because abortion is unique. How confident can others be about that?

Putting on his historian's hat, Alito accuses the majority in Roe of misstating history and writes that abortion even at an early stage was never regarded as a right in Anglo-American common or statutory law and was generally illegal throughout the United States. Not everyone agrees with Alito's historical account.

Alito asserts that when justices ignored history, they engaged in "the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York." That was the highly influential 1905 case in which the Court struck down a state law limiting the hours that bakers could work per day and per week because the law violated freedom of contract under the 14th Amendment. Progressives hated the ruling from the start, but some conservatives later came to hate it too because it relied on the concept of substantive due process, by which judges could invent rights that conservatives abhorred. Libertarians also ought to have apprehensions about substantive due process. Such seemingly benign legal notions, including "unenumerated rights," are double-edged swords.

The juridical problem in distinguishing putative rights that are constitutionally protected from those that are not is that no constitution could name more than a few rights. Where does that leave all the rights left out? (We could say there is only one right, namely, the right not to be subjected to aggression, and that anything more specific rights are examples of the principle. But that would incite a never-ending controversy over what constitutes aggression.)

The Ninth Amendment, which says that rights not mentioned were still retained by the people, seemed to be the solution to the problem. That amendment has not played an important role in constitutional law to the frustration of libertarians, but danger lies in that amendment if it were to be taken seriously. The danger is that pseudo-rights could be embraced by Supreme Court justices. Rights theory is like a butterfly. You may lovingly nurture the egg, larva, and pupa, but once the butterfly emerges from the cocoon, it will fly where it likes or be blown about by the wind, logic or no logic. (It's been pointed out that the Bill of Rights has turned out to be a tragic distraction. Instead of the government having the burden of justifying any power it wishes to exercise, the people have had to justify any claimed right by finding supporting text in the Bill of Rights. Maybe we'd have been better off without it.)

It's tempting for each of us to think that our own theory of rights or liberty just happens to be the one that perfectly aligns with the intent of the framers or with the common understanding of the constitutional text in 1789. But how likely is that? The framers didn't agree philosophically on everything and people often understand words and sentences differently among themselves. In other words, originalism isn't a neat solution.

As noted, Alito's alternative to judges who impose their personal views about liberty is judges who stick exclusively to rights deeply rooted in the country's history and tradition. But this is also unsatisfying because it imprisons us in the thinking of long-dead individuals whose understanding of liberty might have been incomplete. Why assume that the framers understood every implication of the nature of freedom? As Thomas Paine wrote in The Rights of Man:

There never did, there never will, and there never can, exist a Parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the "end of time," or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void.... It is the living, and not the dead, that are to be accommodated.

It's true that constitutions can be amended and the framers' shortcomings addressed, but that process is always costly and difficult. In the meantime, people suffer from the deprivation of their liberty.

Alito's choice between the alternatives is clear, but the Constitution contains no guide to interpretation. Even if it did, how would that help? Any guide to interpretation would itself be open to interpretation. We'd end up with an infinite series of guides.

So where does that leave us? Apparently with two choices: an un-elected national super-legislature free to invent rights or a federal court guided by an emaciated, tradition-bound notion of liberty and unchained state legislatures free to grant (revocable) "rights" by majority vote. Neither seems ideal, but the ideal seems not to be on the menu today. I recorded my thoughts on perhaps the short-term second-best solution in "Disagreement without Conflict."

(See my book America's Counter-Revolution: The Constitution Revisited.)

TGIF: A Revolutionary for All Seasons

If it hasn’t been done already, I hope someone is translating Thomas Paine’s Rights of Man (particularly part 2) into Arabic. People rising up against dictators throughout the Middle East and North Africa should be reading that book; it will come in handy when they’ve driven the dictators from power (as in Egypt and Tunisia) and are wondering what to do next. (It wouldn’t hurt for Americans to read it.)

Read the rest of TGIF here.