Posted: March 3, 2010
Making California Golden Again
I found William Voegeli's cover essay on California to be very incisive and, to be honest, painful ("Failed State," Fall 2009). As he points out, the state's decline has been largely self-inflicted and unnecessary.
My only suggestion would be to put more emphasis on the role of the regulatory system. With the new climate-change related regulation, California essentially is showing how a state—the most blessed by nature in the nation—can undermine its economy. The biggest losers will be the working- and middle-classes whose jobs and homes are threatened.
Unfortunately, there is no way to repossess the large estates and fancy carsof the Google billionaires,non-profit foundations, and Hollywood notableswho have financed much of this push to destroy the state's once-amazing productive economy.
Valley Village, CA
William Voegeli's "Failed State" is unrivalled in its dissection of California's ills. But the passive voice in his conclusionhides another liberal weapon. Voegeli writes: "The voters will have to be persuaded that these legitimate demands can only be addressed by electing principled conservatives to public offices both prominent and obscure." The weapon is rotten boroughs. California is gerrymandered into districts that put a Democratic, and hence liberal, lock on the legislature. (The scales will only tip further if illegal immigrants are included in the census.) While the fastest-growing, inland area of the state is also the most conservative, there is little evidence that time will give conservatives a fighting chance.
Ironically, the Progressive tools of direct democracy remain the best bet for California conservatives. In fact, initiatives and referendums are the only effective resources conservatives have had in decades. Governor Schwarzenegger rode into office on this idea but fundamentally misunderstood the policy imperatives. Had he been armed with Voegeli's insight, he might have been the Terminator of the worst of the Progressive legacy instead of becoming more collateral damage for liberalism's looting and pillaging of California.
William Voegeli does an excellent job of limning California's governance problems, but his ire at Progressive reforms and the large number of governments in the state might be slightly misplaced. One of the Progressive movement's virtuous accomplishments was the direct initiative. Consider what the "tax and spend" advocates would have done if their unrestrained access to property tax revenues had not been curbed by Proposition 13. John G. Matsusaka's careful analysis in For the Many or the Few: The Initiative, Public Policy, and American Democracy (2004) clearly reveals lower taxes and less profligate government spending patterns in state and local jurisdictions that are subject to the initiative process. Professional civil service, another legacy of the Progressive era, might have its problems, but is typically free of corruption and is, in any case, vastly preferable to a spoils system. Rolling back the Progressive reforms is probably not the answer to California's problems, and taking away the initiative process would probably not strike most Californians as a good way to rein in excessive government spending.
Reducing the number of local governments by consolidation, which the article seems to imply is a good idea, would likely not make government more efficient or frugal. Suburban municipalities almost always offer higher service levels and lower costs than adjacent large cities, and it is difficult to find anyone who unreservedly sings the praises of large urban or regional school districts. True, California does have more special districts than any other local form of government, but many of these, no matter how low profile, provide a specific service (water, sanitation, etc.), have a clear mission, and can more easily be analyzed and compared than large, multifunction regional governmental entities. Large regional governmental authorities tend to be imperious bureacracies substantially immune from any public pressure at all: think of the Air Quality Management District (AQMD) or the Southern California Association of Governments (SCAG). The average citizen has some realistic opportunity to interact, even if only socially, with a board member of, say, a local water district. How many citizens of Los Angeles County (with a population well over ten million) are likely to bump into one of the five County Supervisors at the local supermarket?
Voegeli is on much more solid ground when he cites specific examples of profligate government spending patterns in California. If the state's government is going to be improved, hard, detailed fiscal analysis is going to illuminate the way for California citizens. Needless to say, this sort of fiscal analysis is not going to come from the government managers who currently guard the relevant fiscal data, or at best disseminate it in carefully crafted, opaque financial documents. For all the reasons Voegeli mentions, they have no incentive to let the public see precisely where tax dollars are going. Independent, critical, detailed fiscal analysis is needed to provide voters with the necessary information to hold elected officials accountable.
Advocating conservative principles may be satisfying to some, but by itself hasn't managed to sway a majority of the California electorate, or even many Republican office-holders, toward requiring more fiscal prudence.
Steven B. Frates
William Voegeli's "Failed State" is an elegant analysis of one part of the California mess, but, alas, it omits a large part of what's an even more complicated story than the one he tells. Many of the state's ailments, as Voegeli writes, can be attributed to its Progressive legacy and the hyperdemocracy it has produced. And yes, the public-sector unions too often dominate its political establishment, and especially its Democratic Party. But for the most part the system worked well into the late 1960s or early '70s, producing public services and a governmental system that were models for the nation and, in many cases, for the world: schools, freeways, parks, water projects, and what may still be the greatest public research university on earth.
So what happened to make things go so wrong if it wasn't just the enactment of the state's collective bargaining laws? In part it was California's growth itself, creating congestion, pollution, and escalating real estate values. More generally, it was the exhaustion of the excessive post-war optimism that drove that growth and that brought millions of migrants, nearly all of them from other states, to the land of sunshine, surf, palm trees, and cheap development housing, much of it available at low cost with G.I. or FHA loans.
But the disenchantment was also driven, subtly at first, then more obviously, by a different wave of immigrants, Latinos and Asians particularly. Suddenly the new faces weren't WASPs from Iowa or Kansas but Mexicans from Michoacan and Zacatecas, who spoke a different language and brought a new culture. In 1978, Howard Jarvis, co-author of California's property tax-cutting Proposition 13, perhaps the biggest landmark in California's change of direction, famously declared that he was sick of all those "illegal aliens who come here to get on the taxpayers' gravy train."
There's plenty of data, both from other societies and increasingly from California, that cultural or ethnic diversity correlates inversely with taxpayers' willingness to support public goods. When the kids in the schools are, or look like, your kids, you're much more likely to support those schools (or colleges or parks) than if the children are different, especially if many of them aren't here legally in the first place. That should be easy to understand in a state where whites are just another minority and a rapidly shrinking one at that, but where they still constitute about two-thirds of the voters. And because California requires a two-thirds legislative majority to pass a budget and (since Proposition 13) a two-thirds majority to raise taxes (making California the only state to have both), it was easy for legislative minorities, usually Republicans, to block budgets and/or extract concessions from the majority. Because the Democrats (partly serving the unions, but often for more defensible reasons as well) were spenders, the legislature and governor could only resolve the resulting gridlock with borrowing, fudges, deferrals and other gimmicks that pushed the deficits from one year to the next until, in this recession, the gimmicks were all used up. Worse, the state's convoluted fiscal system, much of it created via the initiative process, makes it nearly impossible for voters to know who's accountable.
Yet the voters, while demanding that their representatives do their work and fix things, have imposed ever more restrictions on both their ability and their motivation to do so: tax limits, term limits, spending limits, spending mandates, plus a whole string of initiatives creating billion-dollar programs without providing new funds to pay for them: park land acquisition, high-speed rail, stem-cell research, hospital funding. At the same time, because they don't trust the legislature, they've refused to reform the very system that frustrates them, rejecting ballot measures, both liberal and conservative, that would lift some of those constraints. In effect, they'd rather have the legislature not work than have it respond to the Democrats who control it. Because districts are divided by population, not voters (thus black and Latino districts have many fewer voters than white suburban districts), the legislature corresponds much more closely to the general population, both demographically and politically, than the statewide electorate does-which, of course, is why that electorate so often resorts to the initiative to trump the legislature.
Calling for the election of "principled conservatives," Voegeli has some useful suggestions for Republicans. But the most important was left out. Unless Republicans reach out to Latinos—and to ethnic and social minorities in general—they'll remain a minority in California forever. George W. Bush and Karl Rove understood that. Believing that Latino social conservatism could fit well with at least part of the GOP agenda, they were far more successful in getting Latino votes in Texas than Republicans have been for the past decade in California. At this point, the California Republican Party behaves less like a political party and more like a besieged cultish splinter group not understanding the world that's grown up around it. The state badly needs a strong second party, but at the moment it doesn't have one.
William Voegeli replies:
I appreciate Joel Kotkin's suggestion to reexamine California's decline with special attention to the prospect of strangulation by regulation. It's a question I'll take up in a future essay, if I can come up with something to say about it that he hasn't already said better in his Forbes column, or on Newgeography.com.
Ken Masugi, too, has kind things to say about "Failed State," and interesting things to say about the problem of gerrymandering. Conceding the probability that his understanding of the whole question of drawing legislative districts' boundaries surpasses my own, I'll venture the opinion that gerrymandering does not rank especially high on the list of reasons why conservatives don't play a larger role in shaping public policy in California. I suspect that Democrats do not, in fact, do a particularly thorough job of maximizing their electoral advantages by shrewdly drawing legislative districts. It's not because they're good sports, but because careerist imperatives routinely take precedence over partisan ones. This means that carving out as many safe seats as possible is more important than configuring the map to facilitate the highest number of victories, including narrow ones.
If a majority party had succeeded in making the most of its electoral possibilities by drawing district lines, you would expect to see a lot of elections where the minority party candidates (their most loyal voters clustered together in as few districts as possible) secured a small number of overwhelming victories. Conversely, the majority party candidates (their voters strategically distributed among as many districts as possible) would win a large number of elections by much narrower margins. That appears, however, to be the exact opposite of what happens, at least recently in California. In 2008, for example, 20 of the 40 seats in the state senate were up for election. Democrats won 11 and Republicans won 9. But it was the Democrats who won the landslides. Of the nine Republican victors, the one with the highest percentage of his district's vote received 63%. Of the 11 Democrats, the one who received the lowest percentage of the vote got 65%. The nine Republican state senators won, collectively, 57% of the votes cast in their districts; the 11 Democrats won 70%.
I submit that if Masugi and I hacked the state's computers, we would be stymied in our efforts to redraw the state senate district lines to secure even one additional GOP seat. The Republicans in 2008 won 45% of the state senate seats being contested, and 41% of all the popular votes cast in those 20 races. It's hard to see how they were cheated out of their fair allotment of legislators in Sacramento. There are few of us able to resist the temptation to ascribe our failures to forces beyond our control rather than to ones within it. The evidence argues, however, that conservatives hold so little sway in California because they haven't been able to change enough minds, rather than because they haven't been permitted to change enough maps.
I agree with several things that Steven Frates says, but not all of the opinions he reads between the lines of "Failed State." If California did not now have the direct initiative, I would not lead a campaign to establish it. Recognizing the ways it has curtailed governmental metastasis, however, I would not lead a campaign to remove what has been a prominent and often useful part of the state's political toolkit for the past century.
Similarly, I don't champion "reducing the number of local governments by consolidation." Nor, for that matter, do I champion increasing the number by fragmentation. Getting it right, governmentally, means assigning responsibilities to agencies that would do a worse job if they grew or shrank, either in terms of the number of people they serve or the number of functions they perform. Getting it right, politically, means that governmental units are constituted, geographically and functionally, so that any expansion or contraction would detract from the voters' ability to render an informed and considered judgment of their performance. The best solution to the one problem might differ, slightly or strikingly, from the best solution for the other.
Frates is correct, however, to infer that I do not agree with him that the civil service system "is vastly preferable to the spoils system." I didn't relocate from New York City to California in order to revive Tammany Hall beneath the palm trees, and I don't yearn for the day when an election victory will mean Democratic street sweepers are replaced by Republican ones. I do believe, however, that the cause of good government and meaningful democratic engagement would be enhanced if elected officials could fill by appointment many of the positions now in the highest echelons of the life-tenured civil servants. If a mayor or governor is foolish enough to appoint hacks, the people should be smart enough to elect a new mayor or governor. As matters now stand, if the policymakers and implementers in the top ranks of the civil service are doing a poor job, the people's ability to do anything about it, directly or through their elected officials, is negligible.
I'm gratified that Peter Schrag read "Failed State" so closely, since I've enjoyed and profited from his two books on California, Paradise Lost and America's High Stakes Experiment. The argument in his letter distills the one in his books: the source for both the strength and the weakness of California's Republican Party is its refusal to come to terms with the new multicultural "world that's grown up around it."
Schrag's analysis has its merits, but also its problems. He notes that there's "plenty of data"—some of it from the prominent social scientist Robert Putnam—demonstrating, in Putnam's words, that "people living in ethnically diverse settings appear to ‘hunker down'—that is, to pull in like a turtle." Diversity, in sociologese, is negatively correlated with social capital. Homogeneous communities are more amenable to collaboration, trust, and sustaining social welfare programs than heterogeneous ones.
So it's a little jarring when, after signaling that the desire for sociability reinforced by cultural homogeneity is natural and understandable, Schrag's political advice to conservatives sounds so much like, "Get over it." This is particularly true when it comes to the question of illegal immigration. Even two centuries ago, when America was much smaller and less diverse than it is today, the question of forming a successful, inclusive republic devoted to inalienable rights was on the political leaders' minds. In George Washington's famous reply to the Hebrew congregation of Newport, he acknowledged their expressions of gratitude for "the Blessings of civil and religious liberty which we enjoy under an equal and benign administration." But he pointedly added a word about duties:
It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.
We should when discussing illegal immigration, at least acknowledge the possibility that conservatives who can't readily get over it may be motivated by principle, not bigotry. It's not self-evident that people who live here by virtue of breaking the country's immigration laws can demean themselves as good citizens by complying with all the other laws. A faintly theological question concerns whether, how, and when the original sin of entering and remaining in the country illegally can be atoned for by the good works of living lawfully and productively thereafter. Republicans might appeal to some additional voters by treating illegal immigration as the moral equivalent of jaywalking, but they would also offend other voters who consider the violation of those laws a more serious matter. It's not enough to figure out which group is larger; it's also necessary to ask which one is right.
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Robert Bork and Original Intent
Bradley C.S. Watson is right to praise Robert Bork and to pair him with Joseph Story as two of the greatest proponents of the fixed rule of law that lies at the very core of written constitutionalism ("The Old Race of Judges," Fall 2009). But Watson fails to see how inconsistent his own dissents from Bork are, both with the rule of law and with the founders' conceptions of the proper limits of judicial power.
Watson laments Bork's alleged "legal positivism,"quoting his seminal 1971 law review essay: "There is no principled way to decide that one man's gratifications are more deserving of respect than another's or that one form of gratification is more worthy than another." Watson, however,takes Bork's words out of context. What Bork was clearly expressing is the rather conservativenotion that no neutral or exact principle can be impartially or apolitically applied to resolve all complex matters. He explicitly states that, when he was younger, he had mistakenly thought that there is a judicially enforceable "general principle of individual autonomy" emanating from the Bill of Rights,a view that continues toensnare many libertarians. Rejecting that earlier belief, Bork says (in the sentence immediately following the one that Watson quotes) that he now realizes such matters inevitably involve the application of subjective analysisand moral judgment—applications that the founders rightly entrusted to elected legislators rather than to unelected judges.
The founders defined the judges' role as saying what the law is, not what it should be. Thus, in answer to Watson's subsequent parade-of-horribles question about what should be done if a legislature were to outlaw marriage, the founders—or Abraham Lincoln—would have likely replied with something along the lines of, "Change the law; do notresort to lawlessness."
Watson writes, "The Constitution assumes—and the founders explicitly elaborated—the ideaof a morally ordered universe." True enough, but they also explicitly elaborated the idea of a separation of powers. Watson writes that to refuse to recognize natural rights and to apply them from the bench "is not really to be a proper originalist; at most, it is to be a stunted originalist, incapable of bringing careful moral reasoning to bear on cases where the Constitution is ambiguous or silent." The refusal to recognize natural rights is indeed problematic. But so is the notion of having the judiciary apply them in an extra-textual way. The founders did not view the Constitution's ambiguities or silences as invitations for judges to speak.
Bork and Story are models of the jurisprudence that the founders envisioned and extolled—a jurisprudence dedicated to applying the law as written, not reshaping it as desired. Departures from this ideal in the direction that Watson counsels are unfortunate, for they amount to little more than Brennanism on the Right.
Jeffrey H. Anderson
Bradley Watson's review of Robert Bork's collection of his writings presents Judge Bork as, at one and the same time, a defender of a constitutional jurisprudence of original intent, and a determined enemy of the principles of the Declaration of Independence understood as principles of the Constitution. But a jurisprudence of original intent is possible only on the basis of the principles of the Declaration. Bork's only contribution to a jurisprudence of original intent has been to give it a bad name.
Watson writes that
Judge Bork deserves credit for reinvigorating in legal circles an idea that had once been taken for granted: constitutional interpretation must have recourse to one or another form of originalism in order to be legitimate. If it does not, we live under the rule of men rather than law.
But the issue of originalism versus the Progressives' "living Constitution" has always turned on the question of whether, because of the guarantees to slavery, the intent of the original Constitution was not morally and constitutionally defective. On this question Watson himself appears to be unclear. He denounces the "contemporary liberals who insist on embracing Taney's reasoning [in Dred Scott] that the Constitution as originally drafted did, in principle, protect slavery." Whether or not it did so "in principle" the Constitution did in fact offer massive protections to slavery.
Article I, section 2, provided that three fifths of slaves be counted in the allocation of representatives in the House and in the Electoral College, and in the apportioning of direct taxes. In 1860 there were 4 million slaves, adding 2.4 million to the free numbers of the slave states. Not an inconsiderable addition in a nation of about 30 million. Article I, section 9, prohibited Congress from blocking the importation of slaves from Africa before the year 1808 and Article V denied any constitutional power to amend this provision. Of course, this limitation ended in 1808, yet the very idea of limiting the power of amendment implies a limitation upon the sovereignty of the people. How can a Constitution which rests entirely and solely upon the sovereignty of the people deny to itself any right to amend? That such an anomaly was in the interests of slavery cannot be ignored.
Finally, we have Article IV's fugitive slave clause, which provided that runaway slaves "shall be delivered" to their owners. The imperative word "shall" left open the question of by whom this return must be effected, whether by state or federal agency. But it left no doubt that it was a constitutional mandate. Abraham Lincoln was unambiguous and unequivocal that an oath to support the Constitution meant an oath to enforce this article no less than any other. Hence Lincoln no less than "contemporary liberals" agreed with Chief Justice Taney that the original Constitution protected slavery.
Nevertheless, the original Constitution deserves to be considered an antislavery document. The concessions to slavery deserve to be regarded as dispensations of prudence. Without these concessions the Constitution could not have been ratified, and slavery would have been left in a far stronger position. However, the Constitution's proslavery provisions did not determine the status of slavery in the territories, the question upon which North and South differed so profoundly that only Civil War could settle it. Only a government as strong as the one created by the Constitution of 1787 could have resisted successfully the thrust for domination by the slave power in the antebellum period. Only a government committed to the principles of the Declaration of Independence could have possessed that strength.
The text of the Constitution makes no moral or legal distinction between its proslavery provisions and those favorable to human freedom. All the words of the Constitution are equally binding. According to Southern doctrine, upheld by Taney in Dred Scott, when a citizen of a slave state went into a federal territory with his slave property, that property was entitled to the same protection as any property of any other citizen coming from a free state. The Constitution, it was held, forbade any discrimination against the lawful property of citizens of slave states.
The free-soil argument, on the contrary, pointed to the Fifth Amendment, which forbade depriving any person of life, liberty, or property, without due process of law. Slavery, the free-soil argument went, might exist under the positive law of the slave states. But the jurisdiction of slave law did not extend beyond the boundaries of the slave states. When a black man set foot in a federal territory he was, as a human person, entitled to his liberty by the Fifth Amendment. But, replied the slave states, the owner of a slave was himself a human person, who might not, according to the same Fifth Amendment, be deprived of his property when he entered a federal territory.
The entire antebellum debate resolved itself into the question of whether a Negro slave was to be regarded primarily as a human person or as a chattel. Under Southern slave state law he was both. But a human person is endowed with reason and freedom of will, and a chattel has neither. By nature a human person cannot be a chattel, and by nature a chattel cannot be a human person. Which takes precedence? By the law of the slave states, black slaves were considered both as human persons and as chattels. In most cases and for most purposes they were not considered human, but were considered to be as properly under the will of a master as any dog or horse or ox. When they were considered human it was only to make them responsible for injuries to others. In the case of an injury caused by chattels—by a dog or a horse, for example—it was the owner who was held responsible. The slave was not considered chattle for a moment, so to speak, in order to make him and not his owner responsible for damages. A wonderful concession to the slave's humanity! Hence the slave states insisted that in a territory, except when he committed a crime, the slave remained a chattel.
The Republican Party platforms of 1856 and 1860 recited in full the statement of principles in the Declaration of Independence, and asserted that these principles were embodied in the Constitution. On this basis, it followed that the Fifth Amendment could only be interpreted in favor of the slave's humanity. By the law of the slave states he may have become a chattel, but by nature he was in truth a human person. By reason of the presence within the Constitution of the principles of the Declaration—the principles of the laws of nature and of nature's God—the government of the United States, within its proper jurisdiction, could recognize only the slave's humanity.
Watson wishes us to recognize Judge Bork's contributions, however flawed, to a jurisprudence of original intent. But a jurisprudence of original intent is important only as the Constitution requires a moral compass. The Constitution's moral compass is to be found in the principles of the Declaration. Without this compass, the idea of original intent is meaningless. Watson quotes from a 1971 law review article of Bork's that "There is no principled way to decide that one man's gratifications are more deserving than another's or that one form of gratification is more worthy than another." But this is sheer nihilism. It provides no basis for distinguishing the gratifications of a Nazi or a Communist constitution from one that is Lincolnian or Jeffersonian. It is death to the cause of conservative constitutionalism.
Harry V. Jaffa
Bradley C.S. Watson replies:
Jeffery Anderson claims I have gone too far in my criticism of Robert Bork, while Harry V. Jaffa claims I have not gone far enough.
Mr. Anderson accuses me of making arguments inconsistent with the rule of law and the founders' conceptions of judicial power—as well as taking Judge Bork out of context. On the latter point, there is no context that can save Bork's comments from Jaffa's characterization of them as sheer nihilism. Allow me to quote the sentences immediately following the one I quoted in my review: "Why is sexual gratification nobler than economic gratification? There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own." I don't believe for a moment that Bork is a nihilist, but he does come close to saying that, in his judicial capacity, he must behave as if he were one.
In these fluid times, what Mr. Anderson refers to as my "parade-of-horribles"—a progressive legislature doing away with marriage (beginning, perhaps, by merely "privatizing" it)—seems far from unimaginable. As a point of prudence, I think that only the most egregious and clear-cut cases should warrant judicial second guessing of legislative judgments when the Constitution's words are not dispositive. Though the founders would not have imagined such intervention necessary, neither would they have imagined the radical reconfiguration of their constitutional order by the winds of progressive change.
The first rule of legal construction, according to Story himself, is to interpret the instrument according to the sense of the terms and the intentions of the parties. My hope is that we can raise up judges who are self-restrained, but not blind: besides reading words on a page, or reading the minds of the founders, they must follow the logic of the Constitution. Conservatives have been losing the culture war in the Supreme Court for decades largely because constitutional "originalists" fail to put forth substantively originalist alternatives to majority conclusions. Instead, they prefer deference—either to legislatures or to the meanderings of their philosophically-challenged colleagues.
As I wrote in my review, to be a legal positivist is to be a stunted originalist. Bork's positivism serves him well, in most cases, but it stops short of the founders' constitutionalism. In his first State of the Union address, President Obama very publicly attempted-but failed miserably-to call out members of the Supreme Court on a recent decision. Notwithstanding the president's ineptitude, it would behoove constitutional originalists on the Court and off to call out the justices, too, when they are wrong and show them why they are wrong, in a manner that relies on something more than "the legislature made us do it."
Although I have the greatest respect for Harry V. Jaffa, I don't know what I can add to my argument that will please him. I agree with him that Judge Bork fails to see that an originalist jurisprudence is only possible on the basis of the principles of the Declaration—on an understanding of the nature of things and man's pre-political rights and obligations embedded in that nature.
I don't think, however, that I'm at all unclear on the original Constitution being an anti-slavery document. The clauses in it that recognized the existence of slavery in positive law were indeed, as Prof. Jaffa states, dispensations of prudence. It is unclear to me, however, what Jaffa means by saying "the issue of originalism versus the Progressives' ‘living Constitution' has always turned on the question of whether, because of the guarantees of slavery, the intent of the original Constitution was not morally and constitutionally defective." Born of social Darwinism and pragmatism, Progressivism was from the outset hostile to any and all notions of fixed constitutionalism, whether or not that constitutionalism was "defective" from a moral or natural-rights position. Progressives were explicitly contemptuous of the founders' Constitution—and of nature as a standard of political right—for reasons that had nothing to do with slavery.
I don't think I'm out of place either for recognizing Judge Bork's contributions to constitutional originalism. Even on the basis of his stunted originalism, he would have been able to come to correct conclusions in most cases in which Justice Kennedy has erred appallingly.
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Unions and Civility
In a letter responding to William Voegeli's "Look out for the Union Label" (Summer 2009), I differed with his contention that unions serve mainly to undermine the economy, maintaining that though imperfect they play an integral role in our industrial relations system (Correspondence, Fall 2009). I did so in a respectful way that focused solely on the issues, because I don't believe I have a monopoly on wisdom, and because I think that civility and a willingness to listen are the best way to advance our understanding.
Replying to my letter, Voegeli decided to personalize things, belittling me as a reporter, making light of my reasoning abilities, identifying other writers he prefers, accusing me of not covering labor but covering for labor, and on and on. I could have done the same, asserting that he covers for corporations, but I'd rather address the issues than level personal insults. I have no idea why he chose a snide, demeaning, and hostile tone. I'd like to think my arguments were too powerful to be dismantled on the merits, but perhaps it's simply that he believes his views can't be challenged, thinks one best discusses policy matters through attack, or couldn't muster the intellectual firepower to stick to the topic.
On the issues themselves, I'm not going to re-engage. He's made his points; I've made mine. He thinks he's right; I think I'm right. Probably, because these things are complex and multifaceted, I'm right on some issues, he's right on others, and the way to move forward is to extract the best from both points of view.
Chevy Chase, MD
William Voegeli replies:
Philip Dine is right to take offense, and I was wrong to give it. I apologize to him for personalizing a political argument, and to CRB's readers for scuttling what might have been a useful exchange of views. Dine and I disagree fundamentally about the benefits and drawbacks of the labor movement. There's a good chance we would have ultimately concluded our exchange exactly where he leaves it, by agreeing to disagree.
It would have been better, though, if we could have found a way to disagree productively by making clear how far each of us were, and were not, prepared to take our arguments. A better second draft of my reply would have stipulated that Dine's decisions to trivialize the physical intimidation of a journalist (Dine) by union members, and euphemize credible evidence of money laundering by union leaders, raised no questions about his competence or integrity, but only about the soundness of his political opinions. If these were examples of acceptable union conduct, what, if anything, would be an example of unacceptable conduct?
I'll note for the record that I would not follow the logic of my own argument all the way to the conclusion that labor unions are invariably and necessarily bad. There appear to be examples of union behavior that is significantly more productive and collegial than the conduct of the United Auto Workers I discussed in my article. Southwest Airlines, for instance, is heavily unionized; various news articles state that more than 80% of its employees belong to one union or another. Either because of or notwithstanding this fact, Southwest is widely admired as an enterprise that regularly executes a difficult triple-play: its employees, and its customers, and its shareholders all have good reasons to be happy with the company. If management would study what makes Southwest tick, it might go a long way to reviving the national economy. If unions could explore the same question, they might find the best path for reviving the labor movement.
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Correcting a Misimpression
It is normally authors who write in to complain about reviews, but in this case I, the reviewer, would like to correct what appears to me a misimpression I might have left with readers of my recent review of Colleen Sheehan's James Madison and the Spirit of Republican Self-Government ("Madison's Avenues," Fall 2009). In one place I spoke of "the lengths Sheehan goes to deny that separation of powers...are central to Madison's thought." As I now read that over it sounds like I am judging her argument as stretched and mistaken, but that is not what I meant to convey. I was attempting to compare the role of separation of powers in her book and in George Thomas's The Madisonian Constitition, and would have stated my meaning better by writing that "she argued strenuously" against thecentrality of separation of powers. I did not mean to judge the quality of her argument here but merely to mark the contrast between the two books.
Michael P. Zuckert
Notre Dame, IN