Two Visions (Or Two Assessments) of Democratic Freedom

Plato on democratic man:

He lives out his life from day to day, gratifying the desire of the moment. One day he drinks himself under the table to the sound of the pipes, the next day he is on a diet of plain water. Now he is taking exercise, but at other times he is lazing around and taking no interest in anything. And sometimes he passes the time in what he calls philosophy. Much of his time is spent in politics, where he leaps to his feet and says and does whatever comes into his head. Or if he comes to admire the military, then that is the way he goes. Or if it’s businessmen, then that way. There is no controlling order or necessity in his life. As far as he is concerned, it is pleasant, free, and blessed, and he sticks to it his whole life through. (Republic 561c-d)

Karl Marx on freedom:

In communist society, where nobody has one exclusive sphere of activity but each can become accomplished in any branch he wishes, society regulates the general production and thus makes it possible for me to do one thing today and another tomorrow, to hunt in the morning, fish in the afternoon, rear cattle in the evening, criticise after dinner, just as I have a mind, without ever becoming hunter, fisherman, herdsman or critic. This fixation of social activity, this consolidation of what we ourselves produce into an objective power above us, growing out of our control, thwarting our expectations, bringing to naught our calculations, is one of the chief factors in historical development up till now. (From the German Ideology)

Compare and contrast.

A Maryland Farmer on Popular Ignorance

One of the Antifederalists' chief objections to the new constitution was its insufficient guarantee of the right to a local jury trials. The jury was taken as indispensable for the protection of liberty and as a constitutive of democratic self-government. Here's how one Antifederalist (A Maryland Farmer IV) replies to the objection that the people are too ignorant to participate in self-rule through the jury. This objection (and A Maryland Farmer's reply) are relevant for a number of contemporary debates that circle around the alleged ignorance of citizens and voters:

Why shall we rob the Commons of the only remaining power they have been able to preserve, for their personal exercise? Have they ever abused it? I know it has and will be said they have; that they are too ignorant; that they cannot distinguish between right and wrong; that decisions on property are submitted to chance; and that the last word, commonly determines the cause. There is some truth in these allegations, but whence comes it. The Commons are much degraded in the powers of the mind: They were deprived of the use of understanding when they were robbed of the power of employing it. Men no longer cultivate, what is no longer useful, should every opportunity bed taken away, of exercising their reason, you will reduce them to that state of mental baseness, in which they appear in nine-tenths of this globe. ... Give them power and they will find understanding to use it.

Chesterton Against Determinism

A beautiful excerpt from The Outline of Sanity: (emphasis added)

Now no doubt most people even in the logical city of Paris would say that the Eiffel Tower has come to stay. And no doubt most people in the same city rather more than a hundred years before would have said that the Bastille had come to stay. But it did not stay; it left the neighbourhood quite abruptly. In plain words, the Bastille was something that man had made and, therefore, man could unmake. The Eiffel Tower is something that man has made and man could unmake; though perhaps we may think it practically probable that some time will elapse before man will have the good taste or good sense or even the common sanity to unmake it. But this one little phrase about the thing "coming" is alone enough to indicate something profoundly wrong about the very working of men's minds on the subject. Obviously a man ought to be saying, "I have made an electric battery. Shall I smash it, or shall I make another?" Instead of that, he seems to be bewitched by a sort of magic and stand staring at the thing as if it were a seven-headed dragon; and he can only say, "The electric battery has come. Has it come to stay?" 

Before we begin any talk of the practical problem of machinery, it is necessary to leave off thinking like machines. It is necessary to begin at the beginning and consider the end. Now we do not necessarily wish to destroy every sort of machinery. But we do desire to destroy a certain sort of mentality. And that is precisely the sort of mentality that begins by telling us that nobody can destroy machinery. Those who begin by saying that we cannot abolish the machine, that we must use the machine, are themselves refusing to use the mind.

Of course, it must be acknowledged that sometimes the only way to destroy the mentality that tells us the machine cannot be destroyed is by destroying some machines. 

Goethe's Allegory for Intellectual Dogmatism: The Old Castle

Johann Wolfgang von Goethe developed a famous theory of optics to criticize the dominant theory of his day: That developed by Sir Isaac Newton over a century prior. The details of Goethe’s theory (and the metaphysical stakes of his dispute with Newton) are interesting in themselves. But below is an excerpt from Goethe’s Preface that makes a powerful, more general critique of dogmatic intellectual parochialism. We cling to old theories as we do to old castles, mistaking incoherence for sophistication. To save a failing theory, we introduce unprincipled epicycles and caveats. To save a falling castle, we build incongruous corridors and wings. These solutions might address local problems, but they fail to confront the deeper, systematic issues. The proper course in both cases is to tear the thing down. (One wonders how this imagery of the “old castle” relates to Goethe’s praise for Gothic architecture, most famously the Strasbourg Cathedral).

From Goethe’s Preface:

In the second part [the polemic part] we examine the Newtonian theory; a theory which by its ascendancy and consideration has hitherto impeded a free inquiry into the phenomena of colours. We combat the hypothesis, for although it is no longer valid, it retains a traditional authority in the world. Its real relations to its subject will require to be plainly pointed out; the old errors must be cleared away, if the theory of colours is not still to remain in the rear of so many other better investigated departments of natural science. Since, however, this second part of our work may appear somewhat dry as regards its matter, and perhaps too vehement and excited in its manner, we may here be permitted to introduce a sort of allegory in a lighter style, as a prelude to that graver portion, and as some excuse for the earnestness alluded to.

We compare the Newtonian theory of colour to an old castle, which was at first constructed by its architect with youthful precipitation; it was, however, gradually enlarged and equipped by him according to the exigencies of time and circumstances, and moreover was still further fortified and secured in consequence of feuds and hostile demonstrations.

The same system was pursued by his successors and heirs; their increased wants within, the harassing vigilance of their opponents without, and various accidents compelled them in some places to build near, in others in connection with the fabric, and thus to extend the original plan.

It became necessary to connect all these incongruous parts and additions by the strangest galleries, halls, and passages. All damages, whether inflected by the hand of the enemy or the power of time, were quickly made good. As occasion required, they deepened the moats, raised the walls, and took care there should be no lack of towers, battlements, and embrasures. This care and these exertions gave rise to a prejudice in favour of the great importance of the fortress, and still upheld that prejudice, although the arts of building and fortification were by this time very much advanced, and people had learnt to construct much better dwellings and defences in other cases. But the old castle was chiefly held in honour because it had never been taken, because it had repulsed so many assaults, had baffled so many hostile operations, and had always preserved its virgin renown. The renown, this influence lasts even now: it occurs to no one that the old castle has become uninhabitable. Its great duration, its costly construction, are still constantly spoken of. Pilgrims wend their way to it; hasty sketches of it are shown in all schools, and it is thus recommended to the reverence of susceptible youth. Meanwhile, the building itself is already abandoned; its only inmates are a few invalids, who in simple seriousness imagine that they are prepared for war.

Thus there is no question here respecting a tedious siege or a doubtful war; so far from it we find this Eighth Wonder of the World already nodding to its fall as a deserted piece of antiquity, and begin at once, without further ceremony, to dismantle it from gable and roof downwards; that the sun may at last shine into the old nest of rats and owls, and exhibit to the eye of the wondering traveler the labyrinthine, incongruous style of building, with its scanty, make-shift contrivances, the result of accident and emergency, its intentional artifice and clumsy repairs. Such an inspection will, however, only be possible when wall after wall, arch after arch, is demolished, the rubbish being at once cleared away as well as it can be.

To effect this, and to level the site where it is possible to do so, to arrange the materials thus acquired, so that they can be hereafter again employed for a new building, is the arduous duty we have undertaken in this second part. Should we succeed by a cheerful application of all possible ability and dexterity, in raising this Bastille, and in gaining a free space, it is thus by no means intended at once to cover the site again and to encumber it with a new structure; we propose rather to make use of this area for the purpose of passing in review a pleasing and varied series of illustrative figures.

The basic contention here—that apparent inconsistencies derive from ad hoc, sub-optimal additions, not deep wisdom—contrasts with the more conservative disposition often identified with “Chesterton’s Fence.” So-named for Chesterton’s example in The Thing:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say the folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

Of course, there is no necessary contradiction between these two claims. Goethe would respond that in the case of the old castle, we know why these wings and corridors and moats were built, and we know how to better achieve the purposes they once served. One also might want to distinguish between practical and theoretical matters. We may favor a presumptive commitment to parsimony in theory building (we want our theories to be short, elegant, and powerful), while nonetheless acknowledging that apparently convoluted social systems embody truths our limited human reason doesn’t fully grasp at the moment.

Still, the contrast between the two dispositions is illuminating, I think.

On the History of Economic Thought

Should economists study the history of economic thought? They certainly used to! But today, the history of economic ideas has become something of mere antiquarian interest (if that) to most economists. In political theory and philosophy, intellectual history remains an invaluable store of conceptual insights, ready to assist our thinking about contemporary problems. Social scientists once approached the history of their fields in much the same way. But as economists have come to understand their discipline as more of a hard science, their attitude toward the history of economic thought has come to approximate the physicist’s attitude toward the history of physics. Intellectual history might be fun. But few natural scientists believe that reading Galileo or Newton (let alone Aristotle or Galen) will advance their understanding of physics or biology.

The natural scientist is probably generally correct in this belief. (Though there remain good reasons why the history of science is worth studying). So the question is to what degree the social scientist should think of him or herself as a natural scientist.

Of course, the history of ideas might be valuable and worth studying in its own right. It does not need to be justified in terms of its usefulness for social science research. But it’s still worth thinking about why social scientists have come to abandon this part of their field. Does reading Smith, Ricardo, Marx, Sombart, Keynes, and Robinson actually help us to better understand how the economy works?

The Influence of Ideas on History

One reason social scientists might be interested in the history of political and economic thought is that ideas could have consequences for history. If it’s true that ideas shape social change, then social scientists who want to understand how a variety of social phenomena arise will need to understand ideas and their afterlives. This is Keynes’ point in the famous concluding section of the General Theory:

The ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. … I am sure that the power of vested interests is vastly exaggerated compared with the gradual encroachment of ideas.

On this point, Keynes and Hayek were in complete agreement. Hayek too was convinced that the history of ideas was the key to understanding contemporary political and economic developments. The Road to Serfdom is in large part a sustained argument about the role of a particular set of ideas in bringing about both communism and fascism.

Other Reasons to Study the History of Economic Thought

Even if we disagree with Keynes and Hayek and conclude that ideas themselves have little influence on history, social scientists may still have good reason to study the history of their disciplines. Studying the history of economic and political thought is fertile ground for studying economic and political theory.

I appeal to authorities.

Istvan Hont in Jealousy of Trade:

The eighteenth century produced a vision of the future as a global market of competing commercial states. Its analytical depth still ought to command our attention … political insights in eighteenth century theories of international market rivalry … continue to be relevant for the twenty-first century. [This was] the period in which the interdependence of politics and the economy first emerged as the central topic of political theory. … The history of political thought is at its most helpful when it unmasks impasses and eliminates repetitive patterns of controversy. 

Later Hont adds:

by taking the history of political and economic thought seriously we can see that the globalization debate of the late twentieth and early twenty-first centuries lacks conceptual novelty. … History cannot be expected to solve the core analytical puzzles of political or economic theory. But it has its hour when the long-expected solutions of social and political science fail to materialize.

Albert Hirschman, who managed to be both a premier economist and a premier historian of economic thought, broadly agreed. He wrote that he was drawn to study the history of ideas as a response to

the incapacity of contemporary social science to shed light on the political consequences of economic growth and, perhaps even more, in the so frequently calamitous political correlates of economic growth no matter whether such growth takes place under capitalist, socialist, or mixed auspices.

Later he adds: “vaguely similar circumstances at two different and perhaps distant points of time may very well give rise to identical and identically flawed thought-responses if the earlier intellectual episode has been forgotten”

Whiggism and Economics

In his 1962 Presidential Address to the American Economics Association, Paul Samuelson gave a different account of why the history of ideas might be interesting to economists. Samuelson runs through several canonical figures in modern economics (beginning with Adam Smith), and gives his assessment of their major contributions. Samuelson isn’t at all interested in understanding these thinkers in their own terms. He’s just interested in figuring out what trends in contemporary economics they anticipated. What role they played in the progressive accumulation of knowledge that characterizes the past two centuries of economic thought. This is the economic equivalent of what Herbert Butterfield famously termed the "Whig Interpretation of History."

But this approach renders the history of ideas practically useless. As Donald Gordon put it (in the American Economic Review!! ... in 1965):

It is certainly desirable that we have as accurate a record as possible of the sources of modern theory, but exclusive concentration upon this has some serious drawbacks. … it also neglects some fascinating intellectual puzzles. … If economists are to talk glibly about government policy—and there is no doubt that they will—it would be some comfort to know they had been at least exposed to the wide variety of what we might call basic paradigms concerning the nature, role, and possibilities of the state.

In other words, a Whiggish approach to the history of economic thought stunts our creativity. It does the opposite of what proper intellectual history aims at.

Kenneth Boulding, "After Samuelson, Who Needs Adam Smith?" 

Kenneth Boulding gives one of my favorite accounts of why we should study the history of economic thought.

He begins by critiquing the whiggish, progressive view of social science:

There is an implicit assumption in this [whig interpretation], however, which is rather startling. It is that there is no need to study the failures of the past, simply because all that we have to learn is embodied in the present scriptures

Boulding then distinguishes between two approaches to the history of economic thought: the scriptural approach (at the extreme, an “ultrahistorical” approach); and the “antihistorical school” approach.

According to the scriptural approach:

the truths of economics were revealed through Adam Smith and Ricardo, or perhaps through Karl Marx, and all that we have to do now is to find out what these authors really meant. There is a touch of this in nineteenth-century attitudes towards Adam Smith and more than a touch of it in even some quite contemporary attitudes in various parts of the world towards Karl Marx.

Boulding is somewhat partial to the scriptural approach, emphasizing the extraordinary insights of Adam Smith in particular:

a book like The Wealth of Nations is ‘seminal’ in almost the literal sense of the word, in that it can easily play the same role in the development of the phylum of economics in the minds of economists, as, shall we say, frozen semen from some distant ancestor which might be used to fertilize an egg and so produce direct intervention from its original source into the course of the biological phylum.

To stick with the (weird) metaphor, Boulding’s point is that there is an opportunity for cross-fertilization between contemporary theory and the history of economic thought.

But there is a danger in too historical an approach to economics. Taken to an extreme, history leads to “mystified and defeated students who simply abandon economics.” Economics might not be linearly progressive, but progress can be made nonetheless.

The “antihistorical” approach, on the other hand, thinks of economics like math. Economics is taken to be a discipline in which knowledge “grows continuously and without loss.”

The antihistorical approach to economics (the dominant paradigm today) has its own problems:

[It] leads to the development of slick technicians who know how to use computers, run massive correlations and regressions, but who do not really know which side of anybody’s bread is buttered, who are incredibly ignorant of the details of economic institutions, who have no sense at all of the blood,s weat, and tears that have gone into the making of economics, and very little sense of any reality which lies beyond their data.

Ouch.

Ultimately, Boulding concludes, the chief reason to study the history of economic thought is that it can help us to escape our own parochialism. It provides the economist: “a sense of an extended present and indeed an extended place beyond his own backyard and his own immediate needs, emotions, and experiences … It is a mark of intellectual poverty to know only one’s own time and place.”

Classic works in the history of economics introduce us “to whole areas of thought which have become unfashionable" and thus help us "to transcend limitations which are imposed ... by the fashions of [our] own time.”

(I've written elsewhere about how intellectual history can be used as an antidote to Whiggish, progressive approaches to history) 

Protagoras and the Marketplace of Ideas

John Stuart Mill’s famous celebration free speech is often pithily summarized as a defense of the “market place of ideas.” That characterization is not perfectly appropriate for the free-speech arguments set out in On Liberty, but it’s good enough. Mill isn’t quite as naïve about free speech as the metaphor might imply, but he’s still pretty naïve: 

Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

It's not unreasonable to associate that argument with a crude account of market dynamics in which competition promotes the good (the true) and drives out the bad (the false). For what it’s worth, a much younger John Stuart Mill had far more sensible things to say about free speech:

I have not any great notion of the advantage of what the ‘free discussion’ men call the ‘collision of opinions,’ it being my creed that Truth is sown and germinates in the mind itself, and is not to be struck out suddenly like fire from a flint by knocking another hard body against it. (emphasis original)

While Mill himself never directly uses the metaphor, the "market place of ideas" is explicitly invoked by Plato in his Protagoras. (I like the Protagoras, I’ve blogged about it before).

Protagoras, the most famous of the sophists, has come to Athens to share his teachings. Hippocrates, a young Athenian, wants to learn from the famous master, and so he runs to Socrates so that they might go together. Hippocrates is keen on seeing these two wise men duke it out. (He gets his money's worth, so to speak). 

Socrates is taken aback by Hippocrates’ enthusiasm, and he warns the young gentleman against the dangerous effects that can come from exposure to sophistry. Sophists, according to Socrates, are “a kind of wholesaler or retailer of the wares by which a soul is reared.” In other words, they are salesmen of ideas. And because the ideas they sell relate to the state of one’s soul, they are salesmen of the most dangerous sort.

Socrates explores the market-for-ideas analogy:

And see to it, comrade, that the sophist, in praising what he has for sale, doesn’t deceive us as do those who sell the nourishment of the body, the wholesaler and the retailer. For they themselves too, I suppose, don’t know what among the wares they peddle is useful or worthless to the body—they praise everything they have for sale—and neither do those who buy from them, unless one happens to be an expert physical trainer or a physician. So too those who hawk learning from city to city, selling and retailing it to anyone who desires it any given moment: they praise all the things they sell. But perhaps some of these as well, the best one, are ignorant of what among the things they sell is useful or worthless to the soul. And so too are those who buy from them, unless one happens to be a physician expert in what pertains to the soul. (emphasis mine)

Socrates has pointed out something important. If the peddlers of ideas are like salesmen, then of course we should not trust them! Salesmen aim to sell. And so they will lie and deceive in order to make the sale. Worse than that, often the salesmen don’t even know the value of what’s on offer! They don’t care. Again, the goal is just to make the sale. There are potentially devastating information asymmetries in this market! A market of ideas is a failed market if ever there was one.

Only an expert can properly judge the quality of the products for sale. But this raises a problem. If the expert can already discern the good ideas from the bad, why would he need to buy the ideas in the first place? And if the buyers in the market lack the capacity to judge what it is they are buying, why should we expect the “good” ideas to out-compete the bad ones?

Socrates continues:

If, then, you happen to be a knower of what among these things is useful and worthless, it’s safe for you to buy learning from Protagoras and from anyone else whatever. But if not, blessed one, see that you do not roll the dice and run risks with the dearest things. For there is indeed much greater risk in the purchase of learning than there is in that of foods: it’s possible to buy food and drink from the retailer and wholesaler and to take them off in other containers; and it’s possible, before taking them into the body by drinking or eating them, to set them down at home and take counsel by calling upon someone knowledgeable as to what one should eat or drink and what one shouldn’t and how much and when. As a result, the risk involved in the purchase isn’t great. But it isn’t possible to carry off learning in another container. Instead, for one who has paid the tuition and taken the instruction into the soul itself through having learned it, he necessarily goes off having already been harmed or benefited thereby. (emphasis mine)

The marketplace metaphor trivializes ideas in a terribly misleading way. Ideas aren’t commodities. They are not the sorts of things we can try out and toss out when we tire of them. Once we are educated in a particular way, our soul has been shaped. There is no more competition, no more market pressure. We are done for, and so we better hope that the education we’ve received was a good one! That’s why exposing people (especially young people) to noxious ideas isn’t a harmless exercise of pedagogy, it is a dangerous act that can produce irreparable harm.

Quotations are from Stephanus pages 313-314 using the Robert Bartlett translation.

Federalist 50 and Judicial Review

In Federalist 49, James Madison famously rejects Thomas Jefferson’s proposal of relying on frequent appeals to the people for the purpose of “altering the constitution or correcting breaches of it.” In practice, Jefferson thinks this maxim would require regular constitutional conventions. Madison raises a series of “insuperable objections” to Jefferson’s proposal. He notes how frequent appeals to the people would produce frequent changes to the constitution (often for the worse) that will undermine the necessary “reverence for the laws." Even worse, Madison predicts that regular conventions would strengthen the legislature at the expense of the judiciary and the executive. That violation of the separation of powers would constitute, as Madison puts it in Federalist 47, “the very definition of tyranny.”

In Federalist 50, Madison turns to an alternative proposal. Rather than frequent appeals to the people, Madison considers the possibility of “periodical appeals” as the means “of preventing and correcting infractions of the constitution.” Importantly, the topic has moved from popular appeals to alter the constitution (Jefferson’s democratic proposal discussed in Federalist 49), to popular appeals merely to enforce the constitution (Madison’s topic in Federalist 50).

This more limited focus bears on the topic of judicial review. Madison is no longer thinking about how the people may exercise their sovereign right to amend the constitution. He is thinking more narrowly about institutional mechanisms to guarantee the constitution's separation of powers. To this end, Madison considers a scheme tried out in Pennsylvania between 1783 and 1784. The state experimented with a “council of censors,” the purpose of which was to inquire “whether the constitution had been violated; and whether the legislative and executive departments had encroached on each other.”

Unfortunately, Madison concludes, “this censorial body, therefore, proves at the same time, by its researches, the existence of the disease; and by its example, the inefficacy of the remedy.” The most important reason for its failure was its persistent partisanship. And against those who hope that we will one day be free of partisanship, Madison wisely observes that "such an event ought to be neither presumed nor desired."

Specifically, Madison lists five reasons why the council failed. (1) The council was composed of political partisans. (2) The leading members of the council had themselves been members of the executive and legislative branches, and so they were tasked, in effect, with assessing the constitutionality of their own conduct. (3) Because of the above, the council immediately “was split into two fixed and violent parties.” As a result, the councilors were moved by tribal passion rather than cool reason. (4) The council did not necessarily do a good job interpreting the constitution. And (5), there is no reason to believe that the other branches of government would obey rulings of the council.

My question here is how might these objections apply to our contemporary system of judicial review. There are of course a number of significant differences. Regarding objections (1) and (2), our current judiciary is composed of career judges and lawyers who usually have not themselves served in significant positions within the executive or legislative branches. This alleviates the potential difficulty of judges passing judgment on the constitutionality of their own actions. Objection (5) also no longer applies, as our current system grants the courts the final, authoritative say on matters of constitutional interpretation.

But objections (3) and (4)—not to mention the general principle underlying objections (1) and (2)—may well apply to judicial review as it is practiced by the Supreme Court today. It is impossible to de-politicize significant questions of constitutional adjudication. Our judges are political figures who can be generally relied on to rule in a manner that is consistent with the political aims of the party that appointed them. They are partisans. Or they otherwise have miraculous come to hold judicial philosophies which just so happen to align with their political party's priorities. Madison's reasons to be wary of partisans on the Pennsylvania council of censors can accordingly be applied to partisans on the federal Supreme Court.

Madison's preferred mechanism to guarantee the separation of powers is laid out in the next paper. Federalist 51 famously argues that the only way to maintain an equilibrium of powers is to pit the ambition of the legislature against the ambition of the executive. In my view, the prediction that the legislature will be inclined to jealously guard its prerogatives is the single most consequential error in Publius’ scheme. That said, our contemporary system of adjudicating constitutional disputes—granting the Supreme Court absolute power—has also failed. It is notable that Madison never seems to consider the possibility of the judiciary playing the role it currently does. I suspect if he did, the objections he lays out in Federalist 50 might apply to a proposed system judicial supremacy.

Perhaps Jefferson was right. Occasional appeals to the people in some form may be the best means of preserving the constitution and may be the most legitimate means of altering it. Jefferson was probably overzealous in calling for such frequent constitutional conventions. But his basic analysis has proved fairly prescient. Madison’s greatest fear was that the legislature might absorb too much power. But some branch of government will always step in to interpret (and effectively alter) the constitution. Our three options are: (1) A ceasarist Presidency; (2) A Supreme Court that laughably pretends to be apolitical; or (3) A Congress that takes the lead in interpreting (and effectively amending) the constitution. 

My sympathies lie with (3). A Westminster model of parliamentary supremacy strikes me as the most legitimate and effective means of dealing with questions of pure politics. But a substantial difficulty persists. Somehow the Congress must rediscover the ambition and the responsibility assumed by Publius, but entirely absent in contemporary political life. 

Free Speech and Abortion

The Supreme Court ruled today in NIFLA v. Becerra that a California law requiring pro-life crisis pregnancy centers to provide information about abortion access likely violates the first amendment of the constitution. I’m inclined to think that the Court ruled correctly. If free speech means anything, it protects individuals from being compelled to speak in a way that violates their fundamental moral convictions.

In a brief concurrence, Justice Kennedy gave an impassioned defense of free speech. He claimed that through this law, California sought “to impose its own message in the place of individual speech, thought, and expression.” Such an imposition, he continued, approached the most despotic of tendencies: “history since [the founding] shows how relentless authoritarian regimes are in their attempts to stifle free speech.” We must “preserve and teach the necessity of freedom of speech” as embodied in the first amendment, and we must never allow the state “to force persons to express a message contrary to their deepest convictions.” Strong stuff, indeed. Justice Kennedy here articulates the standard liberal thesis that free speech stands at the center of a free society.

But, let’s not forget, Justice Kennedy is the swing vote on today’s Court finding a constitutional right to abortion! In other words, Justice Kennedy argues ferociously for the free speech rights of pro-life activists, AND he argues ferociously that those pro-life activists’ arguments should never be able to democratically succeed. Sure, pro-life activists should be legally permitted to argue their case in the public square. But even if those activists persuade a majority (or a supermajority) of their fellows to oppose abortion, Justice Kennedy replies: “Too bad. Abortion is here to stay no matter what a majority of the people or their representatives might want.”

I complained in my previous post about campus free speech arguments that suffer from a similar fault. On a college campus, the best argument for free speech is “I might learn something new.” In a democratic society, the best argument for free speech is “we might learn something new.”

To be clear, I’m not especially bullish on free speech. I find Millian “marketplace-of-ideas” arguments highly suspect, and I think there are plenty of good reasons to question a regime of largely untrammeled free expression. But IF there are decisive arguments in favor of free speech, “this is a useful way for free societies to arrive at democratic decisions” must be pre-eminent among them.

Of course, other arguments are often given. We might defend the sacred right of the white supremacist to defend slavery, even as our constitution prohibits a majority of voters from every re-instituting the practice. (Personally, I find such arguments thoroughly uninteresting). So there is no necessary contradiction in Justice Kennedy’s position. But it points us, frankly, to a silliness endemic in contemporary liberal discourse. It is difficult to take seriously a romantic defense of free and open expression that reduces to: “Believe what you want, argue your convictions, debate and persuade others of your view! But remember, no matter how many people you convince in the marketplace of ideas, there’s nothing you can ever do to change the law.”

One Bad Argument in Favor of Free Speech

I generally have an ambiguous attitude toward free speech. In some spheres we profit from a healthy, free exchange of ideas. In other spheres, guidance and regulation of discourse are required for intellectual and social advancement. So I am skeptical of any simple account of free speech as a universal principle. I favor a more piece-meal approach.

But there is one argument in favor of free speech—an argument especially popular in contemporary defenses of campus free speech—that strikes me as especially weak. This is a version of the argument that sometimes goes: The best way to combat bad speech is with better speech. The specific species of this argument I object to is one that insists that we shouldn’t censor bad, dangerous, ideas; we should combat them with better arguments. The best way to defeat bad ideas is through intellectual refutation.

There is an empirical premise here I find highly dubious. Namely, the premise that ideas operate as some kind of marketplace tending toward better quality over time. I don’t think that’s true of the economy, let alone ideas. (Something like the opposite is often true in both realms)

But that’s not my major objection. It seems to me that this is the wrong way to think about the value of hearing opposing viewpoints. The only good reason for an undergraduate to go to any lecture, seminar, or debate is if the undergraduate thinks he or she will learn something from the event.

That kind of learning can fall into a couple categories. (1) We might attend a lecture on a topic we know nothing about to replace ignorance with knowledge. This is why we might go to a lecture on  late developments in the field of Egyptology, for example. (2) We might attend a lecture given by someone with whom we disagree so that we can take seriously their arguments in order to evaluate our own. This is the classic JS Mill case. A liberal should listen to thoughtful conservative arguments in order to critically assess his or her own views. (3) We might attend a lecture given by someone with whom we disagree so that we can sociologically understand why it is that so many people hold what we take to be bad ideas. This is why we might (might!) be interested in hearing someone from the KKK, for example. Not because we want to critically assess our own opposition to white supremacy, but because it can be sociologically illuminating to understand why some people hold views we take to be so repellent. In some cases (though not in the KKK case), this kind of sociological knowledge might be helpful in indirectly shaping our own views. Trying to understand why people voted for a candidate we abhor might help us think through how "our side" can better respond to these people's genuine grievances, for example.

But it’s silly to attend a lecture just so we can ask aggressive questions or attempt to refute the speaker. If a student thinks from the outset that he has nothing to learn from a given talk, then he shouldn’t go! If he does go, he should be open to learning something new. And if we are convinced that a particular speaker won't help us learn anything new, then it is difficult to see why that speaker should be invited at all.

(I've written about campus speech issues here and here).

Where Radical Democrats Meet Traditionalist Conservatives

I've written a blog post at Law and Liberty comparing Patrick Deneen's new book to the radical democratic political philosopher, Sheldon Wolin. There are more patterns in thinking here worth pursuing. (As a biographical aside, Deneen was a student of Wilson Carey McWilliams, who was himself a student of Sheldon Wolin). McWilliams' thought as well appears to be suffused with the democratic spirit that animates Deneen and Wolin. The same can be said of John Schaar, whose marvelous critique of equal opportunity is worth reading alongside Deneen's recent piece on our modern meritocratic elites.