WHO WILL EDUCATE THE EDUCATORS?

The Troubled Crusade: American Education 1945-1980
Diane Ravitch
New York: Basic Books, 1983
xiii + 384 pp., $19.95 (cloth), $8.95 (paper)

The Schools We Deserve: Reflections on the Educational Crises of Our Time
Diane Ravitch
New York: Basic Books, 1985
ix + 137 pp., $19.95

Challenge to American Schools: The Case for Standards and Values
Edited by John H. Bunzel
New York: Oxford University Press, 1985
viii + 248 pp., $19.95

By George C. S. Benson and John West, Jr.

It is strange how a nation as firmly rooted in fundamental ideas of ethics, political theory, and liberal education as America could have banished those fundamental values from its public schools only a century and a quarter after the Founding.

Yet that is what happened, according to educator Diane Ravitch.

Ravitch, a professor of history and education at Columbia University, is the author of nearly 150 articles and reviews, as well as two previous books. In The Troubled Crusade and The Schools We Deserve, she provides compelling discussions of the failings of public education in America-and how those failings came about.

Quite simply, Ravitch blames the progressive movement for undercutting genuine liberal edu­cation, asserting that the zealous social reformers of the 1900s viewed schools "as laboratories of social experimentation."

"The concept of social efficiency, which was popular among progressive reformers, put educa­tion into a new context," she writes. No longer were teachers to simply teach their students about certain classical subjects; instead, they were to direct the destiny of society by shaping the vocational futures of their students. Thus, the "traditional curriculum" was derided as "inefficient," for

under its sway, children were taught history, literature, mathematics, and foreign languages even though they were not going to college; it was not only wasteful of the children's time but also served no useful social purpose. It became conventional in educational meetings to assert that the traditional curriculum, everything associated with a liberal educa­tion, was designed for an aristocratic class and was therefore unsuited to schools in a democracy. (Emphasis added)

A key instigator in this shift away from genuine liberal education was John Dewey. Dewey's "notion of the school as a lever of social reform," writes Ravitch, became converted into "the school as a mechanism to adjust the indi­vidual to society." Purely utilitarian education became paramount; vocational education reigned as king of the mountain.

The irony here is unbearable for any student of the American Founding. In the name of democracy, the "progressives" set about to wreck the very kind of education our Founders had sought to guarantee for future generations. It is unfortunate that they did not ponder the eloquent words John Adams penned to his wife from Paris:

I must study Politics and War that my sons may have liberty to study Mathematicks and Philosophy, Geography, natural History, Naval Architecture, navigation, Commerce and Agri­culture, in order to give their Children a right to study Painting, Poetry, Music, Architecture, Statuary, Tapestry and Porcelaine.

It is also regrettable that the progressive educa­tors apparently chose to ignore the view of George Washington. Washington thought it "essential that public opinion be enlightened" in any society with a popular government. In fact, he said that the more "the structure of a govern­ment gives force to public opinion," the more "essential" an enlightened public becomes. So according to Washington's line of thinking, the types of democratic reforms spearheaded by pro­gressive education would have made genuine liberal education more imperative, not less.

Clearly the Founders had a vastly different conception of the link between liberal education and democracy than did the progressives. John Adams viewed a liberal education as a desired result of democracy; George Washington saw it as a necessary prerequisite. Neither statesman deemed liberal education an obstacle to democ­racy-as did the misguided progressives.

Unfortunately, it was the misguided vision of the progressive educators and not the wise vision of the Forefathers that prevailed in American schools during the early part of the twentieth cen­tury. The only happy note is that the triumph of "progressive education" was not permanent. In The Troubled Crusade, Ravitch tells about the intellectual critics who finally tore down this narrow and stultified view of education in the 1950s-but only temporarily. In the ensuing years, there has been a bitter philosophical tug of war between the heirs of the progressives and the traditionalists. As Ravitch says in an essay in The Schools We Deserve: "With striking regu­larity, educational policy has swung from domina­tion by the 'progressives' to domination by 'traditionalists' in roughly ten-year periods." What has saved the public schools from utter chaos as the pendulum swings back and forth is

. . . the good sense of classroom teachers who are themselves well educated. Their commitment, both to knowledge and to their students, has moderated and finally blunted pedagogical fashions that were not solidly grounded in good educational practice. We should have learned by now, to save us from short-lived crusades, that panaceas are a mirage, and that the only educational improvement of lasting significance is the result of good teaching.

Ravitch's criticisms and insights are certainly thought-provoking-as far as they go. Progres­sive education, as Ravitch rightly points out, proved to be far more pernicious than beneficial. It was one of those trendy costly crusades-like prohibition and Freudian psychiatry-into which partly educated Americans are too readily drawn. Yet saying this, one wishes that Ravitch could have gone further, for she skims over an entire area of debate: schools and the decline of morality. She shows that progressive education is one of the chief sources of our de-emphasis on academic excellence. But she does not even try to find out whether progressive education also contributed to the banishment of ethics from our schools-an equally disturbing development, which George Benson and Thomas Engeman treated a decade ago in Amoral America.

This decline of "moral excellence" in the schools has been just as drastic as the decline in "academic excellence." And its wide-ranging implications for society must not be ignored. As George Washington wrote in his magnificent Farewell Address: "Tis substantially true, that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of free Government. . . . Promote then . . . Institutions for the general diffusion of knowledge." (Emphasis added).

Certainly the "knowledge" Washington was writing about included moral knowledge; and certainly the "Institutions" he referred to included schools. Public schools have a fundamental responsibility to propagate society's moral stand­ards. When the schools abdicate this responsi­bility-and they have-it can only bode ill for the community.

One cannot but hope that in the future Ravitch will delve deeper and apply her wisdom to this problem of education as well, for obtaining academic excellence without also achieving some measure of moral excellence would be a hollow victory-indeed, if it would be a victory at all.

Diane Ravitch's two books neglect the role of morals in education; John Bunzel's Challenge to American Schools at least takes it seriously.

To be sure, most of the book concentrates on the types of items Ravitch talks about (in fact, she is a contributor here)-merit pay and the unions, the precipitous decline in SAT scores, better education for minorities. But there is also a refreshing discussion of moral education in Gerald Grant's essay, "Schools That Make an Imprint: Creating a Strong Positive Ethos."

Grant explains how Catholic schools in poor urban areas actually come closer to the nineteenth-century conception of an American public school than do our big urban public schools today, fenced in as they are by bureaucratic and legal barbed wire. More importantly, he shows how these and other private schools instill moral character into their students. In these schools, says Grant,

[I]ntellectual and moral virtue are seen as inseparable. The aim is harmony. A good school is not one that is merely effective in raising test scores. Although intellect is important, one does not assume that the maximization of test scores is the highest aim; rather one wants a harmonious development of character. There is a concern for rigorous academic education but also for the qualities of endurance, resilience, responsibility, resourcefulness, and social concern.

And unlike many public schools, the average students are not ignored as a faceless mass-for "If one's aim . . . is to save a soul or imprint a character ideal, then every soul is equally worth saving and each imprint deserves close inspection."

Grant argues that the nation's public schools must now follow the lead of its private schools; they must recapture a character ideal that they can pass on to their students. Grant cites the moral vision of Horace Mann and McGuffey's readers as past examples of the character ideal used in American public schools, writing that ". . . we must have the courage to reinvent a modern equivalent of McGuffey's readers, a moral basis for the common beliefs of a democratic pluralist society, or what R. S. Peters has called a provi­sional morality." (Emphasis added.)

Here lies the crucial problem with Grant's essay. How do we "re-invent a modern equivalent of McGuffey's readers"? Grant says that we ought to focus on:

some salient or core beliefs to which we nil subscribe. Pluralism is in fact not possible without agreement on some kinds of values, decency, the minimal order required for dialogue, the willingness to listen to one another, the rejection of racism (or openness to participation in the dialogue), honesty and respect for truth, recognition of merit and excellence, as well as those transcendent values that shore up the whole society-a sense of altruism and service to others and respect for personal effort and hard work. Without such agreement one has not a public but a kind of a radical relativism-not pluralism but mere coexistence.

But why are these the values that should be taught? Why is honesty "good"? Why is racism "bad"? And who defines "decency"? Grant's implicit answer appears to be that values are good or bad depending upon whether or not they are accepted by society. But clearly this is inadequate. The support of the social majority is neither a necessary nor a sufficient condition for determining the truth of a moral principle. A majority of citizens in the South before the Civil War may well have thought of slavery as decent and just. Yet that hardly made slavery ethically right. If we choose arbitrarily any "moral majority" as our criterion for moral truth, then the schools may easily teach wrong princi­ples-or may not teach certain moral principles at all.

Clearly, a much firmer base is needed for morality. If true moral education is to return once again to our public schools, a reasoned case must be made for the existence of an objective morality, one transcending place and time. But can the case be made? The Catholic schools and Protestant reformers lauded by Grant based their ideas of objective morality values largely on the veracity and trustworthiness of Christian revela­tion; such a theoretical foundation was fine for the public, schools of the nineteenth century-but it would unfortunately be unacceptable to many Americans today. Barring revelation as a base (at least temporarily), we must turn to "pure reason." But can a case for objective morality be made by reason alone?

Almost four decades ago, C. S. Lewis attempted to do just that in his book The Abolition of Man, where he argued that all moral judgments are ultimately deduced from one source ("the Tao"). Wrote Lewis:

This thing which I have called for convenience the Tao, and which others may call Natural Law or Traditional Morality or the First Principles of Practical Reason or the First Platitudes, is not one among a series of possible systems of value. It is the sole source of all value judgments. If it is rejected, all value is rejected. If any value is retained, it is retained. The effort to refute it and raise a new system of value in its place is self-contradictory.

Certainly Lewis's argument (including his use of the self-defeating term "value judgment") is open to attack, but at least he grappled with the relevant question.

Those concerned with returning moral educa­tion to the public schools must grapple with the foundation on which to base such education. In America's current moral confusion, it is not enough to simply demand the return of "moral education." There is such a lack of agreement on what morality is today (or why it is) that its very underpinnings must be rediscovered. That process of rediscovery involves reason; in the future, it may involve the use of revelation (for sola reason has its own theoretical problems). At any rate, we ought to begin now.

 

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ERSATZ FOUNDING FATHERS

The Anti-Federalist: Writings by the Opponents of the Constitution
Edited by Herbert Storing, Selected by Murray Dry from The Complete Anti-Federalist
Chicago: University of Chicago Press, 1985
viii + 374 pp., $9.95 (paper)

The Essential Antifederalist
Edited by W.B. Allen and Gordon Lloyd, Associate Editor Margie Lloyd
Lanham, Md.: University Press of America, Center for the Study of the Constitution, 1985
xviii + 274 pp., $24.50 (cloth), $7.75 (paper)

By Steven R. Boyd

Documentary collections, particularly those intended for classroom use, are rarely evaluated in professional journals. The American Historical Review, for example, excludes all documentary collections from its Book Review section, and documentaries are usually found only in the Books Received section of most other scholarly journals. That is unfortunate for, as The Anti-Federalist compiled by Murray Dry and The Essential Antifederalist edited by William Allen and Gordon Lloyd demonstrate, documentary collec­tions can raise important issues about the way we teach. They also point out the need for a like anthology of Federalist essays (other than those of Publius).

In considering these volumes, I make certain assumptions. I presume that the editors of both of these volumes prepared them principally for undergraduate classroom teaching. Dry says in the preface to The Anti-federalist that the volume is intended as a companion to The Federalist Papers while Allen and Lloyd explicitly state that their purpose is to make a collection of the essential writings of the Antifederalists available for undergraduate use.

If we accept this as their basic purpose, the standards by which we evaluate the works follow logically: Is the selection of documents appro­priate; is the editorial matter sufficient; are the introductions and notes helpful? In a nutshell, is the volume usable?

In answering these questions, there exists a presumption that the Dry volume will be an outstanding collection. After all, the selections are from The Complete Anti-Federalist, edited by Herbert Storing. The volume also bears the Storing imprimatur by the very nature of the selection process. Dry telling us that he selected the essays on the basis of "their importance and prominence in the ratification campaign" as implied by Professor Storing's introductions in The Complete Anti-Federalist.

Unfortunately, the volume fails to meet these expectations. In the first place, Professor Dry borrows chapter one of Professor Storing's seven-chapter introduction to The Complete Anti-Federalist for the introductory chapter of The Anti-Federalist. The chapter does not stand alone well enough to justify its use as the introduction to the volume. It would have been better had Dry written a new introduction and encouraged teachers to adopt as supplementary reading Storing's introductory volume, published separ­ately in paperback as What the Anti-Federalists Were For. In trying to remain true to the work of his mentor, Dry limited the usability of the abridgement.

I also wonder if Dry remained true to the criterion for selection he articulates at the outset. He states that the importance and prominence of the essays were his standard of selection. Yet he includes James Winthrop's "Letters of Agrippa" and John Francis Mercer's "Letters of a Maryland Farmer," neither of which was extensively circu­lated, but leaves out George Mason's "Objections" which were both "thoughtful," to use Storing's description, and widely circulated across the country.

Dry's reluctance to tamper with the work of his mentor also has an unfortunate effect on his choice of editorial apparatus. As Dry states in the preface:

Much of the editorial apparatus of The Complete Anti-Federalist has been retained-Storing's introductions to each part of the ratification campaign and to each selection included here; the notes with their extensive cross references; and the marginal paragraph numbers. (The three-part number system was devised for convenient cross reference; the first number denotes the volume of The Complete Anti-Federalist, the second the position of the essay within that volume, and the third the paragraph.) Where omissions have been made within a selection, the original paragraph and note numbers remain unchanged. Some num­bers are therefore nonconsecutive, and Storing's introductions in some instances refer to pass­ages not included in this abridgement.

In other words, the introduction to the Essays of Brutus, for example, makes reference to the essays of Sydney, "see below." Below in this case means in The Complete Anti-Federalist. The notes to "The Letters of the Federal Farmer" are also discontinuous, skipping from note 68 to note 115, and the cross reference (e.g., XVI, 2.8, 196-230) is again to The Complete Anti-Federalist. There are, on the other hand, some strengths to the volume. The introductions to the docu­ments are informative, and the summary outline of each essay should appeal to students. Further­more, the notes to the documents are well-done scholarly annotations, while the abridgement also includes an Updated bibliography.

These strengths of the Dry volume are more conspicuous when the volume is compared with Allen and Lloyd's The Essential Antifederalist. Its editors chose to forego both annotations and bibliography as well as the traditional scholarly notes to the documents. I expect they will be faulted for these decisions as well as for their willingness to modernize the text of the docu­ments in order to make it "easily readable."

These decisions are unusual by traditional standards, but Allen and Lloyd are willing to run the risk of professional disdain in order to provide a volume that undergraduates will use and benefit from. I am not certain that the decision to eliminate scholarly annotation and a bibliography will contribute to that end. I suspect the decision to modernize the text will. And I am certain that the headnotes they wrote to each section, while not traditional in their approach, are a strong point in the volume's favor. That is not to say that I agree with the interpretations they present in the introductions to the documents they print. Quite the contrary. Allen and Lloyd argue, for example, in the introduction to the section "In Support of Capitalism and Democracy," that the Antifederalists believed "that with respect to trade" commerce should be "free to pursue natural courses" because "the prosperity of the nation was best served when a large number of buyers and sellers pursued their self-interest in a marketplace free from the regulation and intrusion of a central government." There are two difficulties with that analysis. First, it is difficult to reconcile with the fact that the same Antifederalists Allen and Lloyd see as free traders generally supported granting to the central government under the Articles of Confederation the power to regulate interstate and foreign trade. Admittedly John Winthrop, whom they include in the anthology, objected to the potential abuse of the commerce power but that does not trans­form Winthrop or any other Antifederalist (notably the New Yorker John Lamb who was collector of the state's customs-duties) into a free trader. But, this is the stuff of traditional scholarly debate which the Allen and Lloyd introductions do a good job of promoting.

In a second way, Allen and Lloyd raise a key methodological question that makes their anthol­ogy prone to criticism even as it makes it a useful documentary. In their introductions to the documents, Allen and Lloyd write in the language of twentieth-century public policy debate. As one example, again drawn from the section of "In Support of Capitalism and Democracy," Allen and Lloyd write "[T]he Antifederalists cautioned that the new plan gave Congress unlimited power over internal taxation. Such a power not only distorted allocation decisions, . . . [it] enervated the enterprizing spirit. . . ." Again, one can argue with this interpretation of the Antifederalists' objec­tion- but the broader issue raised here has to do with the language used.

There is, of course, no question that all of us, to some degree, reflect in our teaching and writing our political views, both in the questions we frame and the answers we draw. But, while there are contemporary policy implications in my study of the Antifederalists (The Politics of Opposition: Antifederalists and the Acceptance of
the Constitution, Millwood, N.Y.: 1979), I did not draw them out in that work. I have, of course, also addressed contemporary public policy issues as a contributor to Public Research, Syndicated, and elsewhere. But, I try to keep those two roles as separate as possible. Allen and Lloyd, perhaps as a function of their academic discipline, political science, or because of their willingness to ignore academic conventions, tend to merge those two roles. If I disagree with the extent to which they have done that, it is because in academics and judicial decision-making I prefer restraint over activism. If, however, Allen and Lloyd are more activist than I prefer, their work is not polemical and it is their very activism that makes the book a more interesting one with which to introduce this generation of students to the political thought of the Antifederalists.

 

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EMPTY PASSIONS OF MODERN MEN

Passion: An Essay on Personality
Roberto Mangabeira Unger
New York: The Free Press, 1984
300 pp., $14.95

By Francis Canavan

Professor Unger's Knowledge and Politics, published in 1975 by The Free Press, impressed this reviewer as the most thorough critique of liberalism he had read. Yet, while rejecting liberal psychological, social, and political thought, Unger did little more than hint at the view of man and society which he would put in its place. In the present work he corrects this defect-at least in part-with a theory of human personality.

I say "in part" because that seems to be as far as he wants to go. He denies that a definitive political theory is desirable or even possible. At the same time he rejects radical skepticism, moral relativism, and historicism. He rightly perceives that such ideas, far from fostering social change, lead men to accept existing ideologies and insti­tutions. These ideas destroy all standards by which the existing order can be judged and all incentives for considering alternative arrangements. "We despair radically," says Unger, "when we believe that criteria of sense and value can come only from particular social worlds and that we have no reason to take one of those worlds more seriously than any other. "

Unger seeks to revive the traditional notion that social and political thought can and should be based on substantive conceptions of human personality to which we may attribute normative force. The best of such conceptions, in his view is "the Christian-romantic image of man." But he combines it with "modernism," which insists that no conception of man or society is final. According to the modernists, we think as we live in conceptual and institutional contexts, but all contexts are open to revision. It is characteristic of the modernist break with tradition to hold "that everything is contextual and that all contexts can be broken."

We never arrive at unconditional knowledge or grasp the metastructure of reality. Metaphysical realism is no longer tenable. Nor can we hope to create, even in thought, a "best" society. The most we can do is to open societies to constant criticism, conflict, and eventual collaboration in improvement.

Yet, to speak of improvement is to imply some standard by which we may judge whether our social relationships are getting better, and this in turn requires some conception of human personality. Linger takes as his starting point the human "self," which finds itself torn between "an unlimited need and an unlimited danger."

We long for "acceptance and recognition, to be intimately assured that we have a place in the world, and to be freed by this assurance for a life of action and encounter." In order to satisfy this longing, however, "we must open ourselves to personal attachments and communal engage­ments" which go beyond our ability to control them and thus threaten "to create a craven dependence and to submerge our individual selves under group identities and social roles."

The self, in other words, is caught between two dangers. On the one hand, the self cannot assert itself in isolation, and thus radical inde­pendence is impotence. On the other hand, it may lose itself in subjection to domination when it enters into union with other selves. "For," says Linger, "our efforts at self-assertion-at marking out a sustainable presence in the world-may be undermined both by the lack of social involvements and by these involvements them­selves."

Unger's statement of the basic problem of social and political thought seems to owe a great deal to Jean-Jacques Rousseau. He does not, however, state the problem in terms of individual and general will as Rousseau did but in terms of passion. Our longing for others and our dread of subjection to them are both passions and spring from our passionate desire to assert our­selves. The problem is to reconcile them and so to satisfy our basic passion.

No solution is to be found in searching for a "natural" order of society since the thing does not exist. There is no "fixed, ideal balance between the claims of engagement and solitude" and no "specific set of social arrangements . . . realizes this balance." All social orders are contexts which constrain the self and therefore can and should be broken. Yet the self can exist and think and act only in some context or other, which it must accept as the condition of its being, while refusing to absolutize it and striving to change it. While Unger often sounds like Rousseau, he sounds at other times like Edmund Burke.

Nor does the solution to the social problem lie in any final conception of human nature. We do, according to Unger, have a common human identity, but all conceptions of it are generated in particular historical contexts, as modernism has taught us. What we take from the Christian tradition is the belief that faith, hope, and love will make possible the "acts of mutual acceptance" which can "reconcile the conflicting requirements of self-assertion."

Unger assures us that accepting these highest of the Christian virtues does not require any religious faith. "Modernism, however," he adds, "allows us to regain the deeper meaning of insights into human nature that lie buried in the teachings of the great world religions." An atheist could accept these insights as revealing fundamental human needs despite their religious origins.

Faith, hope, and love may, but need not, imply belief in God or divine revelation. They are not theological commandments but human passions which spring from the human need for self-assertion. As such, they can overcome the vicious passions, rooted ultimately in hatred, which keep us from making "longing and jeopardy advance toward risk and reconciliation." Only those who are willing to take the risk of rendering them­selves vulnerable through love can hope for genuine solidarity with others in society. Hence the closing words of the book: "Salvation through the acceptance of vulnerability is the only kind of salvation there really is."

Unger does not tell us in any detail what a society governed by faith, hope, and love would look like. It has no definite shape because it is an ideal to be approached, never fully achieved. One gathers nonetheless that, to the extent that it came into being, it would repair the breach between modernism and leftism. The modernist "conviction that the person transcends his con­texts," Unger says, easily mistakes "the deficien­cies of a particular social order for the inherent limitations of society." It must therefore be corrected by the leftist "vision of instituted forms of social life that could in fact be better suited to a context-revising self."

The ideal would seem to be a society in which everyone could be fully himself or herself, free from the straitjacket of socially assigned roles. It would, for example, reject the "mutilating antithesis" of gender roles and would put in its place "the ideal of the psychologically androgynous person." Yet it would be a society and not an anarchy. Since human beings must live in contexts-intellectual, moral, and institutional-the most they can demand is that the contexts be always open to revision.

One is left with the impression that Unger sees revision, when properly carried out, as moving in the direction of a rather flat and thin egalitarianism. With all due respect to faith, hope, and love, one would have hoped for a social theory with more flesh on its bones. It may be, however, that something flat and thin is all we can expect if our theorizing begins with the modern conception of the "self."

One must also wonder whether Unger succeeds in his effort to sail between the Scylla of metaphysical realism and the Charybdis of historicist relativism. It is all very well to say that no theory can be final and that we can only prefer those understandings of ourselves and our world which help us to "make sense of our experience." The question still remains, where do we get the criteria for judging what makes sense? Unger's modernist reluctance to accept the possibility of a valid metaphysics deprives him of intellectually ascertainable criteria and leaves him with a theory of man and society in which, to borrow a phrase from Burke, the inferences are in the passions.

 

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JUDICIAL ENLIGHTENMENT RUN RIOT

On What the Constitution Means
Sotirios A. Barber
Baltimore: Johns Hopkins University Press, 1984
viii + 245 pp., $17.50

By Edward J. Erler

Hardly anyone today can doubt that consti­tutional scholarship has reached its lowest point of declension. The studies that have appeared in recent years are distinguished by their singular inability to take constitutional issues seriously. In an older parlance, they do not address regime questions-those questions that bring to light fundamental constitutional principles. They do not do so because, by and large, their authors do not believe that the Constitution contemplates any kind of regime-let alone one informed by fundamental principles. Rather, these studies are more apt to view the Constitution as merely a procedural instrument informed by no ends or purposes beyond the procedures themselves. As John Hart Ely remarks, with his characteristic infelicity, "Contrary to the standard characteri­zation of the Constitution as an 'enduring but evolving statement of general values' is that in fact the selection and accommodation of substan­tive values is left almost entirely to the political process. . . ."¹ Thus, the various provisions of the Constitution serve simply as undifferentiated means that are indifferent to the substantive results they produce. Of course, a constitution that is wholly indifferent to the results it produces does not deserve to be taken seriously.

The more intelligent of these commentators, however, use the procedural argument as a way of disguising their ideological liberalism. They are content to argue on the basis of procedures when they are assured of the right results, but when the results do not comport with their ideological liberalism, they criticize results under the guise of criticizing means. These luminaries are quick to point out that in a democracy, constitutional procedures can sometimes go awry. They thus cast the Supreme Court in the role of guarding those procedures, intervening on the appropriate occasions to correct procedural breakdowns. In these instances, the Court is expected to make the decisions that would have been made had constitutional procedures been functioning properly; i.e., producing the right results. As Professor Jesse Choper has remarked, "The task of custodianship has been and should be assigned to a governing body that is insulated from political responsibility and unbeholden to self-absorbed and excited majoritarianism."² Choper's unabashed argument for judicial oli­garchy is justified in terms of "the ultimate values that are integral to democracy."³

Consider, for example, the typical voting rights case, involving a challenge against at-large elections. Such electoral schemes are said to be a violation of the Equal Protection Clause because they "dilute" the voting strength of minorities. The evidence for vote-dilution is said to be the fact that minorities are not elected to office in proportion to their numbers. The assumption is that an electoral scheme that was "equally open" would produce proportional results. When these results are not forthcoming, the inevitable conclusion is that the political process is not "equally open" in the sense that minorities "had less opportunity to elect legislators of their choice." The typical remedy in such instances is to order an electoral scheme which produces-not indeed the certainty but the probability of-proportional results. Thus the argument always appears to remain on the purely procedural level. This kind of argument, of course, was the hallmark of the Warren Court, and its use has not been abated in the years of the Burger Court.

Barber's On What the Constitution Means attempts to answer the procedural argument by positing a theory that is "fully conscious" of the Constitution's ends or purposes-ends that are inferable from the Preamble or from "constitu­tional logic." These ends, according to Barber, should be understood "in ways 'that contribute to some picture or notion of the just and good society, or the moral aspirations of the American people; or moral growth simply" (p. 11). It becomes progressively evident, however, that the principal difference between Barber and his protagonists is that Barber's guileless liberalism is completely undisguised.

Barber's "leading assumption" is that "the Constitution has a meaning independent of what anyone in particular might want it to mean" (p. 13). But beyond this seemingly unobjection­able point of departure, Barber has produced a sometimes tedious, but always turgid account of his theory of the Constitution. Barber wrestles with a number of elementary constitutional questions-and along the way, so obfuscates and confuses the issues that it is almost impossible to make sense out of his deleterious diatribe.

Whatever else this book is about, it is not about constitutional statesmanship. As Barber writes, "My aim is to discover what the Constitu­tion means, not whether it is workable" or "politically feasible" (p. 8). Indeed, Barber con­tinues, "if we are to make sense of the Constitu­tion we must understand its provisions in light of an ideal way of life to which those provisions, as a whole, and in a sense, point" (p. 10). Barber throughout describes this as an "aspirational approach to constitutional meaning" (p. 10). The Constitution is always in tension with its aspira­tions (the "ideal way of life"), and it is this tension which provides the basis for progress, a "value" which therefore has "constitutional status" (p. 9).

According to Barber, the Constitution must be viewed "aspirationally" because of its status as "supreme law." The supremacy of the Consti­tution holds out the possibility of injustice because it could appear merely as the imposition of one generation upon another-a "paternalism" which imposes an unjustified "inequality of treatment" (p. 46). But we know that law is something that stands over and against the inclinations of those who are the subjects of the law. If, therefore, the Constitution is to be supreme law, it must be a law that the people have the inclination to disobey, even to the extent of rejecting the Constitution as supreme law. This situation requires the people to possess what Barber calls a "constitutional attitude," an attitude held "by those who are aware of their inclinations to disobedience and who, accepting the law's suprem­acy, seek to reaffirm the law itself and not their conceptions of it" (p. 114). Since, in some sense, the Constitution will always be an imposition of the Framers and therefore potentially unjust, the Constitution, in order to remain supreme law, requires "continual reaffirmation": "Reaffirmation . . . entails a self-critical search for the best conceptions of constitutional norms-a search, in other words, for the best in us-and a con­tinuing criticism of constitutional norms as ingredients of the good society-a continuing willingness to ask whether the best in us is good enough." The constitutional attitude, above all, "entails a desire really to be good or to achieve goodness as a society rather than merely to proclaim or assert our righteousness" (p. 115). As Barber laconically remarks, "At the center of this constitutionally ideal state of affairs is a typical citizen, who is governed by an attitude that places the highest social or political value on the activity of reasoning about how one ought to live." This "constitutionally ideal state" is described by Barber as a "kind of liberalism because it tolerates, even as it works through government to weaken, such unconstitutional attitudes as racism, sexism, self-righteousness, zealotry, willfulness, acquisitiveness, and moral skepticism" (p. vii). The institutionalization of this national self-examination is best typified by such organizations as the Legal Services Corpora­tion and the Civil Rights Commission (p. 176).

Each reaffirmation, however, is provisional, representing only the "current conception" of the best possible in us. Americans have not always lived up to their constitutional potential as this self-critical constitutional attitude has, at crucial times in American history, turned into self-righteousness. Barber adduces several instances which "should be cause for national shame" because they represent the "immorality of self-righteousness." These include, among other things, "slavery, the Japanese-American 'relocations' of World War II, McCarthyism, and the attempts to suppress protest against the Vietnam War" (p. 49). These are instances where the self-critical dialectic with our better selves failed because it lapsed into irrationality, surely an unconstitutional attitude, because the Consti­tution seeks, more than anything else, to foster reasonableness and rationality. But, as Barber notes, these lapses into "hypocrisy" serve to underscore the importance of a regime of principle. After all, we would not know they were lapses unless we had some notion of a constitu­tionally ideal state of affairs.

Barber views the Constitution as the means for producing an enlightened reason of state. In fact, Barber's constitutional theory might fairly be characterized as enlightenment run riot. His position is-quite literally-that constitution­alism requires Americans (at least those with the constitutional "attitude") to be members of a great debating society. Consider the following desultory argument about how a true constitutionalist would confront the problem of racism. Members of a sovereign state, Barber contends, "accept no authority higher than self-critical reason," and aspire, more than anything else, "to be and to be recognized as reasoning creatures." The "racist," on the other hand, "does not seek to be and to be recognized as such a creature. He joins the sexist, the zealot, the skeptic, [and] the determinist" in making claims that are "beyond the affirming power of reasoning crea­tures." The way to end such "patently unconstitutional" practices as racism is "to talk to racists in order to show them that . . . their prejudice[s] [are] indefensible." As Barber concludes, "the ultimate success of constitutionalists depends on their capacity to enlighten and the capacity of racists to see the reasons why they do not really want to be racists" (p. 93).

Barber does recognize, however, that Madison may have had a point when he remarked in Federalist No. 49 that

In a nation of philosophers . . . reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a super­fluous advantage to have the prejudices of the community on its side.

Barber's answer is that the "constitutional atti­tude" will foster self-conscious prejudice, preju­dice which recognizes itself as prejudice, or perhaps prejudice which knows itself to be merely prejudice as opposed to knowledge or truth (in which case it would be true prejudice?). As Barber notes, "Surely, the prejudiced them­selves presuppose, as part of their prejudice, that the laws make sense or would make sense to the very thoughtful" (p. 51). This self-conscious prejudice appears to be at the very heart of the self-critical constitutional attitude that Barber insists characterizes a regime on the way to becoming the best it can be. But it would be a mistake to identify the constitutional attitude with any notion of patriotism because the critical stance engendered by the "constitutional attitude" must be open to the "possibility of [the Consti­tution's] failure." Self-criticism, in short, must always "be open to evidence against assumptions on which the Constitution's authority depends" (p. 162). If all this makes Barber sound like a fourth-rate Hegelian, his discussion of Roe v. Wade clearly puts him into the camp of the left Hegelians.

Although Barber maintains that there may be reasonable arguments against the claim that there is a constitutional right to abortion, he disdains to engage the arguments. Instead he notes that the criticisms of Roe v. Wade have been fueled by "[r]eligious considerations." But as Barber duly notes, "true believers" cannot be carriers of the constitutional attitude, because that attitude "can only be understood by men and women who continually subject both their beliefs about what should be supreme law and the Constitution's claims to supremacy to their best critical effort" (p. 134). And, as Barber insightfully notes, "Such is not the way of those who do not admit a need for inquiry into the highest authority." Based on a reading of "historical documents," primarily Jefferson's oft-cited argument that free government depends upon "the unbounded exercise of reason," Barber concludes that "we can assume a constitutional preference for a secular society-a society that acknowledges that there is nothing beyond truth itself that is sacred to inquiring minds: no gods, no creeds, no taboos, perhaps not even the 'inquiring mind' . . ." (p. 135). Like all the profes­sors of enlightenment rationalism, Barber's idealism makes it impossible for him to take seriously the possibility of constitutional states­manship. Barber is evidently incapable of under­standing the Platonic statesmanship that he appears to admire because he would not allow "the government [to] lie to those ordinary folks whose passions are not strong enough to with­stand the pain of breaking away from the security of the community's dogmas" (p. 136).

Barber's failure to comprehend the necessity of statesmanship is most evident in his discussion of constitutional rights. Barber claims that constitutional rights are absolute "trumps" on governmental power. This means that "Con­stitutional rights . . . are exemptions from granted powers; they remove certain means from those means available to the government for pursuing its authorized ends" (p. 113). According to this view, rights are "absolutes because it is possible for us utterly to defeat the exercise of constitutional powers in honoring them" (p. 141). This, Barber continues, "is an absolutism of the self-critical, not of the self-righteous" (p. 141). But, as Barber fails to note, this is also the absolutism of the self-destructive.

This idea of rights as a kind of categorical imperative was hardly the attitude of the Framers of the Constitution, some of whom surely understood the Constitution in terms of natural right. Madison, for example, wrote of "recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed." In a similar vein, Hamilton wrote that "no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government." In speaking of the common defense, Hamilton also remarked that

[t]hese powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circum­stances that endanger the safety of nations are infinite, and for this reason no constitu­tional shackles can wisely be imposed on the power to which the care of it is committed. (Original emphasis)

Thus, in Hamilton's view, understanding rights as absolute trumps on the means government can employ to accomplish its legitimate purposes is to deny the possibility of constitutional govern­ment itself. As Hamilton wrote, "That best oracle of wisdom, experience" has taught the necessity of recognizing a principle higher than the Constitution which allows for its preservation against the "infinite" exigencies that threaten its existence. As David Epstein has persuasively shown in his recent study of the Federalist, "Madison quietly but unmistakably construes the necessary and proper clause . . . [so that] not only the proper means to the authorized ends, but even those improper means which are necessary are granted."⁴ Who can doubt that this, rather than Barber's "constitutional attitude," is the genuine stuff of constitutional rule?

Barber dramatically demonstrates the impossibility of his theory of the Constitution in discussion of how a conflict of rights might be resolved from the point of view of the "constitutionally ideal state." In an ideal state, of course constitutional rights will never conflict. Judges should therefore (at least those with the constitutional "frame of mind") further the progress of the ideally best state by making decisions in a manner that minimizes the possibility of conflict. Consider the conflict between a reporter's right to conceal his sources, and an accused's right to a fair trial. Here is a conflict that confronts us every day. How would a judge with the constitutional attitude decide? A "constitutionally minded" judge, according to Barber, would dismiss the charges, since this is the only action he could take "consistently with his obligation to treat constitutional rights as real exemptions from granted powers[.]" That is, this is the only way a judge could deal with the conflict if he considered constitutional rights as categorical imperatives. Any attempt "to resolve this conflict by honoring one right at the expense of the other," from this point of view, would be a violation of the judge's oath "to honor all constitutional rights" (p. 166) Barber seems to have missed the point that the right of the defendant was in fact not honored since without a trial there can be no vindication of the right to a fair trial.

Yet it must be obvious to anyone with eyes to see that there is no conflict here, if, that is, one understands constitutional rights properly. The reporter's "right" to conceal his sources is derived from the public's so-called "right to know," a right which is, at best, only inferable from the First Amendment. Even conceding the fact that the public has, in some sense, a right to know which is derived from the freedom of press provisions of the First Amendment, it is clear that the structure of the Bill of Rights as a whole provides for the protection of individual rights. The individual's right to a fair trial obviously takes precedence over the derivative right of the public. Only if one is willing to concede that rights as "trumps" are illimitable or categorical-as apparently Barber does-can the dismissal of the charges against the defendant be justified as the only possible way to avoid an unresolvable conflict of rights.

Even more amazing from the point of view of constitutional statesmanship is the concluding argument of the book-an argument involving the reach of the Exceptions Clause. In recent years Congress has attempted to restrict the appellate jurisdiction of the Federal Courts in a variety of "illiberal" ways, ways that Barber describes as the attempt at "legitimizing a self-righteous willfulness that can destroy any possi­bility of achieving the self-critical frame of mind." Among the measures that "are completely opposed to the attitudes and values of those who really accept the Constitution's supremacy" are anti-busing, anti-abortion, and school-prayer bills (p. 205). There is no doubt that the Framers intended to make the power of Congress to regulate the appellate jurisdiction of the Federal Courts a part of the system of checks and balances, but Barber thinks the exercise of this power would somehow compromise the superior view of judicial independence. And, in Barber's schema, judicial independence is necessary to maintain progress toward a constitutionally ideal state of affairs. Judicial independence is therefore a vital principle of the Constitution, and since the Exceptions Clause holds the "potential" for compromising that independence, it is necessary to regard the clause as "superfluous." Judicial independence, in Barber's view, will be the main vehicle for creating "a constitutional state of affairs . . . [where] the strong would not put wealth among their highest values or feel that they had a simple right to all that civil society had helped hem acquire. Possessing a constitutional attitude, the relatively strong would repress willfulness, prejudice, and self-righteousness" (pp. 212-13). For Barber, the exercise of congressional power under the Exceptions Clause is too much like the self-righteous willfulness that is disallowed by the "constitutional attitude." After all, Congres­sional willfulness is apt to side with the "relatively strong."

But what constitutional recourse is there against a nonprogressive or constitutionally recalcitrant judiciary? Barber's answer is astound­ing:

A court must be arguably right about the Constitution in order to be seen as a court established by or under the authority of the Constitution. If the courts . . . should persist in decisions beyond the pale, we would eventu­ally decide that we could not reaffirm the rules establishing the judiciary. We would believe at that point that the Constitution had ceased to be effective law and therefore that we were actually in a revolutionary situation. (p. 215)

Thus Barber's inability to understand the necessi­ties of constitutional statesmanship leads him to contemplate the destruction of the Constitution as preferable to an exercise of power under the Exceptions Clause. It is difficult to imagine that congressional power under the Exceptions Clause is not more akin to a "constitutional attitude" than the device of lapsing into a "revolutionary situation" as a way of curbing the judiciary.⁵ It should be clear that Barber's aspirational idealism makes him incapable of taking the Constitution seriously or understanding the fundamental questions that confront constitutional govern­ment today. The exigencies that threaten the survival of Western democracies-the barbarisms so well chronicled by Solzhenitsyn-can never
be understood from the point of view of Barber's rampant idealism.

¹Democracy and Distrust. A Theory of Judicial Review (Cam­bridge: Harvard University Press, 1981), p. 87.

²Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980), p. 68 (emphasis added).

³Ibid., p. 9. See generally, Erler, "Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education," 8 Harvard Journal of Law and Public Policy (1985), p. 399.

⁴The Political Theory of The Federalist (Chicago: University of Chicago Press, 1984), p. 44.

⁵Such loose talk about revolution is to be expected from one who believes that "sometimes anarchy is relative to one's criteria of lawful order . . ." (p. 204).

 

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BAD MARX FOR THOMAS SOWELL

Marxism: Philosophy and Economics
Thomas Sowell
New York: William Morrow, 1985
281 pp., $15.95

By Douglas A. Jeffrey

As a commentator on the sinful acts of an American bureaucracy chasing an idea called "The Great Society" Thomas Sowell rarely misses his mark. Not so as the author of Marxism: Disasso­ciating himself from the so-called "myths and counter-myths" which lurk behind the tendencies to deify or satanize Marx, and siding with Robert Tucker in ascribing the Soviet experience to the character of Russian history and culture rather than to Marxist doctrine, Sowell portrays his Marx as one not to be understood in terms of good and evil (pp. 150, 151, 164). In this respect, his view of Marx stands in contradistinction not only to that of such self-consciously Marxist revo­lutionaries as Lenin and Stalin, but also to that of Solzhenitsyn and others who, in condemning Marxism, note its essentials with Lenin and Stalin.

It should go without saying that Sowell is decent enough to be occasionally embarrassed by his subject: He disapproves of Marx as a person (e.g., the one who "liked to glare at anyone who challenged his conclusions and say 'I will annihilate you!'"), and is dismayed by certain severe pro­posals of the Communist Manifesto like that calling for the destruction of the family (pp.. 183, 184, 188). But in the end, when he does admit to a connection between Marxist theory and the Cambodian genocide (p. 203), his admission is qualified by the larger argument of his book-namely, that any such connection is predicated on a crude misreading of Marx himself.

Two revisions to the common or common-sense reading of Marx are meant to be revealed by the more sophisticated reading offered up by Sowell, and they may be generally stated as follows: Marx should be read as a not atypical (albeit out-dated and wrong-headed) economic scientist, and he should be understood, when all is said and done, to have been an American-style democrat. But perhaps such sophistication reveals less about Marx than about Sowell and about the un-American understanding of our politics which prevails in both the "liberal" and the "conserva­tive" wings of the social science professions.

A goodly portion of Marxism can be dealt with and dismissed in summary fashion, for over one-third of it follows Marx through the "laby­rinth that he created" in the "massive intellectual feat" that is Capital, or the only work in which the Marxian position was "given a full-scale, systematic exposition . . ." (pp. 72, 73, 109, 220). But Capital, which attempts in a scientific manner to construct an historical model for revolutionary change, is Marxist chaff. Probably the most instructive thing that can be said about it is that Marx left it unfinished.

When, in the 1882 preface to the Russian edition of the Communist Manifesto, Marx acknowledged the possibility of a direct leap from feudalism to communism in Russia, and when he correspondingly endorsed a prototype of Lenin's Bolshevik party, he revealed that he was not a "classical Marxist" concerned with the formalities of revolution.¹ Marx was concerned-indeed obsessed-with a radical idea to be realized through revolution. That idea is at the heart of Marxism, but it is an idea that goes unnoticed by Sowell even when he turns from Capital to the question of Marxism's political consequences.

According to Sowell, Marx is a liberal in the original sense-a man for whom "religious freedom was . . . basic" (p. 45). But while it is fair enough to conclude that Marx's "crude and repulsive remarks" about Jews (and Negroes) in private letters to Engels do not place his in the "same category as twentieth-century racism that has justified genocide," when one looks at Marx's published writings on religion, and in particular on Judaism, it is anything but clear that his animadversion is "hardly in the sense of Hitler and the Nazis" (pp. 177, 178).

Sowell simply and clearly misses the point of Marx's essay "On the Jewish Question," which he reads as "in the end . . . a defense of the Jews' rights to full political equality . . ." (p. 178). Indeed the point insisted on therein by Marx is that Judaism must not be allowed to exist in the private sphere a la the American solution to the religious-political problem, for the freedom of man is to Marx something quite different from political freedom understood in the light of the principles of 1776. It is evident Sowell does not know what it means when he writes of Marx denouncing "the confusion of 'political emancipation with human emancipation'" for he is himself pawn to that confusion in recognizing Marx's "commitment to the principles of democratic freedom" and in find­ing "compatibility-indeed congruence-between a free democratic society and the dictatorship of the proletariat" (pp. 144-46, 150, 151). Marxist freedom is much more radical than he supposes, and American freedom more noble.

"On the Jewish Question" is as good a place as any to begin to see what Marxist emancipation entails.² Marxist freedom demands not only an emancipation from God and thus religion, but an emancipation from other men and thus from political association (of which democracy is a type) as well. It is a freedom from all that is external to man, with man understood as a social or "species being" without individuality. This eman­cipation leaves no place for privacy or for a private realm such as exists in any political regime, and where religion dwells in liberal democracy.

Jewishness and "egoism" are words used synonymously by Marx to mean that part of man which causes or allows him to understand himself as distinct from others, and to recognize what is his own-whether in terms of property or of regime, of family or of body-as distinct from what is not. Jewishness for Marx, that is, stands for what to Americans, as in classical and medieval political philosophy, is something natural and vital to man. And it stands for what must be stamped out for Marxist freedom's sake.

Lest we be lulled into the scholarly detachment from reality that infects all too many considera­tions of "Marxist theory," Sowell's not excluded, another sine qua non of Marxism properly under­stood should be noted.

As Marx makes clear in so early an essay as "Contribution to a Critique of Hegel's Philosophy of Right: Introduction," the traditional distinction between theory and practice-a distinction basic to classical "utopianism"-is no longer to be considered operative. Theory has thought itself out, according to Marx, with its devastating critique of religion, and is now to extinguish itself by overthrowing the political-or the existing order that is compatible with religion-through revolutionary action. It is this teaching, coupled with the insight that the resultant emancipation requires the extermination of human nature or "nature," that explains the connection between Marx and the Soviets, Mao, Pol Pot, et al., and that does so unqualifiedly.

So how is it that Thomas Sowell, of all people, casts himself in the garb of a Marx apologist?

Sowell presents an argument to the effect that Charles Beard was not, as has been charged, a Marxist for understanding the American Found­ing as epiphenomena to the Founders' economic class-interest. The argument is remarkable only for the fact that it hinges on a technicality: Beard failed to emphasize sufficiently the "economic relations" which "shape the conflicting percep­tions that lead to . . . social transformations," and thus did not properly recognize the "morally charged systems" that engage human agency. The proposed distinction between Beard and Marx, that is, revolves on the question of the Founders' consciousness of the fact that the principles on which they founded our regime were epochal illusions (see pp. 60, 61, 65). However sophisti­cated this distinction might be, it obscures the critical sense in which Beard's understanding was Marxist, and like Sowell's book in general it avoids a confrontation with the decisive question that we as American citizens must confront in determin­ing a proper response to the Marxist threat posed us by the Soviet Union: Were our Founders and their later defenders, such as Lincoln and Coolidge, right or wrong?

Sowell does not face this question because his concern is with the choice between "freedom to" and "freedom from" (see, for example, p. 206). Providing less a choice than an echo, neither alternative corresponds to freedom as understood and taught by Lincoln, neither is "morally charged" or with moral content.

Marxists and libertarians agree fundamentally, on freedom as the end for man. While to the Marxists, man is ultimately "species being," and to the libertarians he is radically individual, the idea of man as a moral creature-whether understood as such by the light of reason or through faith in a God with teeth-is equally anathema to both of their doctrines. Now Sowell repeatedly expresses his abhorrence for foreign Marxist tyrannies. But insofar as Sowell sub­scribes to the libertarian view of freedom, he is as ill-equipped to understand America in a way which would preclude the advent of Marxist tyranny at home as he is to understand Marx.

Prefiguring the Beardian interpretation, Marx regarded Lincoln's emancipation of the slaves as "tantamount to the tearing up of the old American Constitution."³ Likewise Sowell appar­ently conceives of American democracy in terms of majority rule simply, which is thus compatible with rule by class or racial groups who do not recognize the equal rights of all (pp. 148, 150, 151). But legitimate self-rule as set forth in the Declaration of Independence, and elaborated in the Constitution, requires that consent be enlightened by the "Laws of Nature and of Nature's God."

Unconscious of the "Laws of Nature and of Nature's God," which are our access to the idea of what is always and everywhere right, American democracy finds itself struggling to assert its moral superiority over a nation that, ruled by an intellectual and nihilistic elite, threatens to subsume it in a universal, homogeneous state. Unhappily, Sowell's Marxism offers us no reason why we should defend ourselves, and with our­
selves political freedom, against either the Soviets or our own encroaching bureaucracy.

¹See Thomas G. West's "Marx and Lenin," Interpretation, 11, no. 1, 1/83, to which my review is indebted for its under­standing of this and other matters.

²See Sanderson Schaub, "Marx as Rousseauian Legislator," delivered at the 1983 APSA annual meeting, for the signifi­cance of Marx's essay.

³Karl Marx, Frederick Engels: Collected Works, Vol. 19 (New York: International Publishers, 1984), p. 250. This recently available volume in translation is of special interest as it con­tains Marx's running commentary on the American Civil War.

 

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MORAL CAPITAL

The Spirit of Enterprise
George Gilder
New York: Simon and Schuster, 1984
274 pp., $17.75 (cloth), $8.95 (paper)

By Jack Kemp

The twin subjects of George Gilder's latest book are announced in the title: "enterprise" and "spirit."

Although the theoretical basis for capitalism was developed over two centuries ago by Adam Smith, Gilder does not believe capitalism has ever been ade­quately justified, however successful it has been in practice. The defenders of capitalism usually treat it as a "system"-efficient, progressive, free, but impersonal. Nineteenth-century capitalism became Darwinian and Malthusian, arguing for absolute eco­nomic freedom as the necessary pre­condition for a kind of relentless progress in a world that resembled a cosmic state of nature. Even in our day, orthodox conservative spokesmen for free-market economies often sound grim and uncompassionate.

The conventional defense of capi­talism has always been unsatisfying, most of all because of its low view of people: Mankind's deepest character­istic is selfishness. The world is moved by a greed Leo Strauss once described as the "joyless quest for joy." The most successful are said to be the most self-interested, driven by their passion to accumulate huge profits. There is some inevitable law of nature, an "invisible hand" that allows the profit­eering of the greedy to trickle down and unintentionally benefit the rest of us. Private vice equals public benefit or, as one parodist put it: "'Every man for himself, and the devil take the hindmost,' said the elephant as he danced among the chickens."

Is it any wonder that many of the poor and the young reject an economic system that has no place for acts of generosity, benevolence, and giving? The strongest case for socialism, by contrast, was never its economic effi­ciency or growth potential but its appeal to community, morality, and human solidarity.

The radical left and traditionalist right, then, tend to agree about the "low moral stature" of capitalists. The unsatisfactory moral basis of capital­ism guaranteed that socialism would always remain as a theoretical alterna­tive which, when armed and in prac­tice, would pose a threat to freedom. Gilder intends to provide a more satisfying moral defense of capitalism.

Gilder prefers speaking of "enter­prise" because it focuses on the impor­tance of the central actor of capitalism, the entrepreneur. An economy is not self-moving; it needs enterprising individuals to generate new products, new ideas, and new knowledge. Successful entrepreneurs cannot be understood as selfish individuals. Rather, they are givers, overflowing with talents and skills, the results of which the world needs. Talented men and women would be selfish if they refused to place their potential in the service of society.

Gilder's case for the benevolence of the entrepreneur has been misunderstood by some: perhaps it can be seen more clearly by considering great statesmen. Any theory that tries to make self-interest the highest motivation of statesmen fails, not because there are no selfish political leaders (or businessmen), but because the success of the greatest cannot be accounted for by mere self-interest. Winston Churchill spent years outcast in the "wilderness" for his stubborn unorthodoxy when it would have been so easy for him to play the good party man and assume a modest government post. A self-interested Abraham Lincoln could have let the "wayward sisters of the South" leave the Union and pre­tended to be a peacemaker rather than prosecute the war that ended forever the stain of chattel slavery. Great statesmen follow the model of the good shepherd, for whom narrow ambition is transformed into a comprehensive desire for the good of all.

In somewhat the same way, a merely "selfish" entrepreneur cannot achieve great success. Gilder notes that "entrepreneurs who hoard their wealth or seek governmental protection from rivals or revel in vain consumption or retreat to selfish isolation [are] relics of the feudal and static societies of the precapitalist era." For those who claim that their superiority entitles them to privileges and reject equal opportunity for all, capitalist freedom only frustrates their effort to gain without giving and avoid risk and sacrifice. An Andrew Carnegie, for instance, who made and lost entire fortunes and donated millions of non-­tax-deductible dollars to philanthropic causes, is unintelligible if greed is mankind's deepest passion. Calvin Coolidge, who well understood the benevolent character of free enterprise, said of Carnegie that "his chief aim in life was not acquisition but bestowal."

The insight that allowed Gilder to develop this argument was his recognition, or rediscovery, that wealth is not simply the accumulation of material goods. The quantity of matter in the cosmos, after all, never changes or increases. Wealth arises only by giving matter new forms that make it useful to people. Almost any material substance-even grains of sand, the material basis for the computer microchip-can be wealth. "Wealth consists not chiefly in things but in thought," Gilder writes, "in the ideas and applications which confer value to what seems useless to the uninformed."

The misunderstanding of the nature of wealth as a material "thing" recurs throughout history. And observers have continually replied to this misunderstanding. To quote Coolidge once more, "In the last analysis, what the workman sells is his intelligence."

It is no coincidence, either, that Gilder, like that once-popular President of sixty years ago, emphasizes the damage to incentives for capital formation and work effort caused by excessive tax rates. What Gilder calls the "invisible yield of enterprise," the "metaphysical capital" of capitalism, erodes and dissolves under excessive marginal taxation, stopping the expansion of real wealth. The rich, to be sure, are not impoverished by high tax rates; they simply reinvest in non­productive shelters, diminishing the gain to society from the productivity of taxable capital investments.

One profoundly mistaken and misleading result of the misconception of wealth, according to Gilder, is the narrow concentration of professionally trained economists on static measurements of material goods and services. Econometric analysis, which tries to quantify the science of human behavior, focuses on mathematical con­siderations while the entrepreneur is thinking about quality. Econometric studies measure marginal changes; entrepreneurs look for radical breakthroughs. Econometrics design models to understand the past, while entrepreneurs under­mine them to affect the future.

This conflict of views is the core of Gilder's book: It is the theme of the central two chapters Gilder calls "The Euthanasia of the Entrepreneur." The false lesson inculcated by an economic science that forgets the qualitative process of techno­logical innovation and entrepreneurial creativity is that capitalism can do without capitalists.

In two devastating pages of discussion of business schools (pp. 146-47), Gilder argues that, "preoccupied by the incalculable maximization of self-interest," business school faculties "show a pathetic incapacity to comprehend the essence of entrepreneurship." The imprint of the econo­metric statistical approach soon appears in the conservative marketing strategies of Fortune 500 giants with their five-year "growth" plans. If that planning sounds as if it derives from managed economies, we should not be surprised. Typical business administration school course work, charges Gilder,

stress[es] the amoral mechanisms more prom­inent in static or socialist systems than in a growing capitalist economy. Business schools thus tend to turn out cynical manipulators of existing values rather than entrepreneurial creators of new value.

The most serious damage wrought by macro-economic model building is the distortion of public policy. Officials whose entire outlook is shaped by quantitative analysis base their budget and policy recommendations on econometric predictions.

In his enthusiasm to emphasize the significance of what cannot be quantified, however, Gilder seems to reject quantification altogether. This leads him to dismiss unemployment and business failure data as measures of economic vitality. Unfortunately, this mistake could create a serious misunderstanding of the author's moral intention. (Think of New York Governor Mario Cuomo's persistent claim that supply-side economics is social Darwinism.) Unemployment can be a moral catastrophe for any jobless person with a family to care for, and persistent high unemployment statistics suggest that there are systematic policy failures requiring economic reforms.

Europe's economies, according to Gilder, have been devastated by misconceiving the nature of economic growth. The continent of Europe has had no net growth in jobs for over a decade. Mesmerized by mountains of irrelevant economic data, policymakers contemplate small marginal increments in wealth, earnings, and productivity as if they were isolated from the effects of rising tax rates and complicated regulatory policies. In fact, the gains made by the new technologies and ideas launched by enterprising men and women are keeping European welfare states afloat. By drawing attention away from the actual process of creativity and enterprise, policies determined by statistical analysis make entre­preneurship increasingly difficult.

Gilder's deepest insight, I believe, is his recognition that the limits-to-growth thinking of many intellectuals results from their socialism and materialism, not to mention atheism. Con­versely, Gilder draws a connection between faith in a supreme power and the capitalist view that growth is potentially unlimited. He has, to use a Marxian phrase, turned the left-wing prejudice against the materialism of capitalists on its head. The idea that there are no limits to growth really comes from the impossibility of ascribing a priori limits to the human mind, which seems capable of finding an infinite number of ways to make material things into useful wealth. Materialists, by definition, reject the existence of immaterial beings like the human mind or soul. Since there is a limit to the amount of physical matter in the universe, "the contemporary intel­lectual, denying God, is in a trap, and he projects his entrapment onto the world. But the world is not entrapped; man is not finite; the human mind is not bound in material brain." The differ­ence between pessimistic socialism and optimistic capitalism turns, ultimately, on the difference between atheism and faith in transcendence.

Yet there is a problem with Gilder's response. Although it is absolutely essential to correct the long neglect of the role of the mind in the creation of wealth, he seems to have answered one exaggeration with another. Isn't the mystery of human existence precisely the combination of the spiritual mind in the physical body? Wealth reflects that mystery because it too is a compound of spiritual form and material substance. To correct the philosophy of materialism, one need not flee to that of spiritualism.

Quantitative econometrics and the dogmas of materialistic science are intimately connected because the former tries to understand an essential human activity in subhuman terms:

In the hierarchies of nature, the higher orders cannot be reduced to the lower ones. . . . Atomic structure, in fact, tells us little of value about the material objects of our lives, little about the workings of an engine, virtually nothing about our organic existences, and nothing whatever about the operations of human consciousness or human society.

Entrepreneurship is not simply a means of satisfying desires for material comforts. It is also a spiritual process of learning, a source of new knowledge, an epistemology advancing the frontiers of science. Growth is limited only by the frontier of current knowledge, which is being pushed back every day by enterprising individuals creating new markets much as scientists develop new theories.

Like the method of science which can demon­strate that some ideas are false, entrepreneurial activity provides a "testable hypothesis" which can be disproven by the market failure of a new product, by economic loss, by bankruptcy. In this respect, enterprise is different from gambling, which cannot test knowledge, and from public-sector "jobs creation" programs that are incapable of matching needs to demands and hence are "epistemologically barren."

The successes and failures of entrepreneurs are a source of knowledge. One of the key terms of this book is the so-called "learning" or "experience curve," a concept which lies at the basis of supply-side economics. The experience curve indicates that whenever the total output of any industry doubles, the unit cost of production over the industry will tend to decline by between 20 and 30 percent. If the annual production and sales of, let's say, widgets increases from 1,000 to 2,000 tons, the cost of producing each widget will drop from $1 to 70 or 80 cents. If the next year widget sales double again to 4,000 tons, the per-widget production expense will fall to between 64 and 49 cents, and so on. According to Gilder, this relationship is not subject to diminishing returns. Henry Ford, for instance, achieved his marketing breakthroughs by cutting the price of his automobile in order to increase sales, and then establishing the economies of scale which made his price reductions profitable. Ford defied the conventional wisdom according to which producers must first achieve cost reductions before lowering prices.

One corollary to this marketing and sales strategy is that there is no price equilibrium point which cannot be lowered by dramatic production increases. A second corollary is that tax rates should be low enough to allow for incentives to expand marketing and new production. Thus the learning curve can be extended further, decreasing consumer costs and increasing the supply.

The experience curve is a principle implying an immense economic growth potential. And, while Gilder does not explicitly say so, the experience curve also explains why tax rates should be reduced, not raised, in the face of large budget deficits, since growth is the real long-run answer to the problem of government expenditure outstripping stagnant revenue returns.

Thus, policies which stifle entrepreneurship, such as excessive tax rates, do not prevent investment; they impose a "mind tax" encourag­ing a different, less socially beneficial investment strategy, such as real estate speculation, tax evasion, and entry to the untaxed underground economy. Tax sheltering tends to shorten the time horizon of investors, placing a premium on substandard construction and poor product quality. According to Gilder's argument, the short time horizon of investment due to excessive taxation is the most important cause of the record-high interest rates we have suffered from in recent years. (I believe, however, that he is mistaken in denying that the Federal Reserve Board's monetary policy has intentionally gener­ated higher interest rates than finance markets alone would have produced.)

The only solution to the mental "euthanasia" of entrepreneurship is tax reform which reduces marginal tax rates and expands the economic base through the encouragement of job creation. Recent tax-reform plans offered by President Reagan, by Senator Kasten and myself, and by Senator Bradley and Congressman Gephardt are all inspired in part by this need to correct the growth-discouraging aspect of our current, nearly incoherent, tax code.

The twin themes of Gilder's book are joined at the end when he proclaims "the spirit of enterprise" as "a thrust beyond the powers and principalities of the established world to the transcendent sources of creation and truth."

Gilder insists on the moral subordination of free markets and economic decisions. He points out, for example, that the environmental move­ment of the 1970s, much of which was hostile to industrial development, actually provided new opportunities and directions for entrepreneurial activities such as air and water purification, increasing energy efficiency, and toxic waste disposal. Unlike many libertarian defenders of capitalism, Gilder has no objection to the enforce­ment of moral standards and limits on commerce and trade. He argues, against Marx, that eco­nomic values derive from the "values" of a whole society, adding that capitalism is not blameable for the unwillingness of a democratic society to ban pornography or otherwise prohibit harmful or immoral activities. Forbidding illicit commerce for profit is a legitimate goal of political, judicial, and religious institutions, and capitalism can operate only within the bounds of a comprehen­sive moral and legal order.

Here lies the greatest difficulty in this other­wise brilliant book. Gilder subordinates "generals and politicians, bureaucrats and revolutionaries . . . elections and wars, mass meetings and militant movements" to "the creative work of entrepre­neurs." Entrepreneurial activity does not create moral principles and ends; rather, moral purposes create free markets, according to the author. Yet political actions are said to be subordinate to the success of capitalist enterprise. The source of moral order apparently has disappeared. Possi­bly he wishes to' argue that that source is in the people themselves; but the people assert their collective moral judgment primarily through their political choices and the actions of repre­sentative government. In the final analysis, a democratic politics cannot help but provide moral guidance and limits to commercial activity, and Gilder's claim that the "significance" of politics is dependent on the advance of "the creative work of entrepreneurs" seems untenable.

Closely related to this problem is the fact that Gilder seems to make the role of the people in the operation of free enterprise purely passive. The author treats the entrepreneur as a hero, perhaps even the highest human type. He is said to be even freer and less limited by "tastes and technologies" than "artists and writers" in "reshap[ing] public desires." Moreover, Gilder implicitly agrees with the entrepreneurial principle that "the crowd is always wrong." There is an elitist implication in this view which contradicts the populism of supply-side economic thought and democratic capitalism. One of the great­est nineteenth-century supply-side economists, Frederick Bastiat, insisted that the purpose of economic activity is the satisfaction of the needs of the whole, not just the producers. If we look at the economy as an order of purposes and causes, it is not difficult to see that the enterpris­ing producer is a cause designed to meet the purposes and ends of the purchasing consumer. As the overriding reason for the productivity of the entrepreneur, the consuming public is the highest, final cause of enterprise. Perhaps Gilder exaggerates the importance of the entrepreneur in order to combat the conventional view that capitalism does not need capitalists, but there is an equal and opposite danger, particularly among conservatives, in denying that wisdom of the whole people which political philosophers from Aristotle to Edmund Burke and our Founding Fathers have acknowledged.

Aside from these differences, I believe The Spirit of Enterprise adds a moral pillar to the defense of capitalism. It demonstrates how free enterprise/free markets, and free minds advance the dynamics of lower prices and higher wages to expand the benefits of prosperity to the poor and the disadvantaged all over the world. It shows the entrepreneur's need for moral qualities such as humility, service to others, and independence, and argues that the ultimate rationale for "the optimism and trust, the commitment and faith, the discipline and altruism" evinced by the life of the enterprising man or woman "can flourish only in the midst of a moral order, with religious foundations." Capitalism cannot survive and prosper without sustaining its religious and moral institutions: the churches, schools, and families.

Gilder, along with writers like Irving Kristol, Jude Wanniski, Warren Brookes, and Michael Novak, has undermined whatever was left of the moral case for socialism and seized the moral high ground for the economics of freedom. With this book he has advanced an enterprise of the spirit from which the whole world has much to learn and benefit in years to come.

 

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GOD SAVE THIS HONORABLE COURT!

United States Reports, 1984-85 Term
Warren E. Burger, et al.
Washington, D.C.: Government Printing Office, 1985
By Dennis J. Mahoney

What could be more straightforward than the constitutional injunction that "Congress shall make no law respecting an establishment of religion"? What passage could be more amenable to interpretation by common sense?

The Establishment Clause of the First Amend­ment prohibits Congress from establishing a national religion. Does it also prohibit a state from requiring private employers to give their employees a day off for religious observance? Does it prohibit a state from providing a moment of silence at the beginning of a school day during which students may, if they wish, pray silently? Does it prohibit a school district from sending teachers to private, church-run schools to provide remedial or supplementary instruction? Accord­ing to Supreme Court decisions handed down during the 1984-1985 term, the Establishment Clause prohibits all of these things.

There are two main problems involved in contemporary establishment clause jurisprudence. One is the growth of the public sector and the consequent expansion of the potential applicability of the clause. The other is the substitution of Supreme Court "doctrines" for the text of the Constitution.

The Founding Fathers created a limited realm for governmental activity. When the Constitution was written, private enterprise was the rule, governmental enterprise the exception. Religious activity was regarded as part of the private realm (except in a few states that had established churches-and the First Amendment precluded the interference of the national government with those existing establishments).

The national government had only a few tasks to perform: to keep open the channels of commerce among the states and with foreign countries, to protect American shipping and resist foreign invasions, to coin money and establish post roads, to administer the frontier territories and deal with the Indian tribes. Congress had no delegated power (the unlimited character of the power to spend for the general welfare not then having been discovered) that could touch upon religious affairs.

Even the state governments, although left completely free by the national Bill of Rights to make laws respecting religious establishments, would have had little opportunity to touch on religious concerns in the course of their normal business. They had to punish crimes against persons and property, to build and maintain streets and highways, to organize and train the militia, to provide courts and courthouses for the resolution of private disputes.

Not only the business of America-including agriculture, manufacture, finance, and trade-but all of the activities that did not require the organized and coercive force of society as a whole, were left to private initiative and enterprise. The education of children, the treatment of the sick and the infirm, the relief of the poor, the training of workers, and the operation of alms-houses were works carried on by private, volun­tary societies. Most of these were corporal works of mercy carried out under the auspices of one or another denomination within the Christian Church.

By the late twentieth century, we find that private charity has been almost completely dis­placed by public "entitlements." Typically, money taken in taxes (or borrowed) by the federal government is distributed to state and local governments, which spend and administer it through semi-private agencies. Hospitals, clinics, child-care centers, food banks, and the like may be run by private charitable organizations, secular or religious, but in most cases their funding has been preempted by the government and they operate subject to government supervision and regulation.

Schools are a special case. Although public schools were unknown in 1789, they were invented shortly after that and soon became the norm throughout the country. Originally, public schools were the creation of the local community, whose members agreed to be taxed at the local level to support schools under local control. By the end of the nineteenth century, however, education had become a function of the state governments. Although still funded by locally self-imposed taxes, the schools were subject to state standards, and compulsory attendance was enforced, by state law. By the 1960s, the federal government had become a major provider of funds for public education, and hence was to become a major source of bureaucratic regulation.

Private education has always coexisted along­side public education in this country, and most of the private schooling has been done with religious sponsorship. Since the mid-nineteenth century the largest nonpublic provider of educa­tion has been the Roman Catholic Church. As the public schools have forsaken the teaching of reading, writing, and mathematics, in favor of sex education, political indoctrination, and the preaching as dogma of certain scientific hypothe­ses (e.g., evolution), parents of other religious persuasions concerned about the moral and spiritual development of their children have turned to church-related schools as well.

Parents and church members find themselves paying for two sets of schools, one of which they conscientiously believe cannot be trusted. But not all of the public money appropriated for schools goes to support instruction. A modern school also provides neutral services-some of them mandated by state law or federal regula­tions-such as diagnostic testing, physical ther­apy, remedial care, and even driver training. Are not the children who attend private schools entitled to receive the services their parents and friends pay for?

The case of education, therefore, parallels the case of other charitable works. Locally established, locally controlled schools have been replaced by an ever-growing educational bureauc­racy. And, in addition to their teaching function, law or regulation, the schools are made dispensers of services which would otherwise be provided by the market or by private charity.

Americans have quite correctly always insisted that their governments maintain strict neutrality among religious groups and denominations. They have permitted a strictly secular performance of purely public functions, while reserving the bulk of their daily lives and activities for their private judgment, informed by conscience and religious insight. Americans have always been a religious people with a secular government of limited purposes. But now we find ourselves living in a country where everything is to some extent administered, regulated, or financed by govern­ment. If everything and everyone that govern­ment touches must be strictly secular, the growth of the public sector tares will choke the tender shoots springing from the good religious grain sown by the American people.

The second problem is the substitution of judicial doctrine for the text and original under­standing of the Constitution. Typically, the Supreme Court decides a case, arguing from constitutional history and judicial precedent. In the course of the explanatory opinion, a word or phrase is used to indicate how the constitutional text is being applied in the case. Then academic commentators seize on the word or phrase, and, after the appropriate degree of analysis and argumentation, they elevate it to doctrine status. Thereafter, attorneys practicing constitutional law feel obliged to argue that their client's case does or does not fall within the scope of the doctrine.

The first such doctrine in the area of politics and religion is the so-called "Incorporation Doc­trine." This doctrine, which the Supreme Court has never explicitly adopted, makes the provisions of the Bill of Rights (except for certain provi­sions that contemporary judges do not think are as important as the Founding Fathers did) binding as limits on the states by "incorporating" them into the substantive guarantees of "life, liberty and property" in the due process clause of the Fourteenth Amendment.

There is a certain intuitive reasonableness to this doctrine, but on close inspection it proves far too facile. The Bill of Rights comprises those guarantees thought essential to limit a govern­ment whose functions were mainly external: foreign affairs, national defense, and administra­tion of territories. The specific guarantees clearly do not go far enough in those areas of internal government where the federal government had no responsibility (liberty of contract, for example). On the other hand, the specific limitations may be too severe when applied to bodies with general police power responsibility (jury trials in all civil cases involving $20 or more, for example). The free exercise of religion is surely protected as "liberty" under the Fourteenth Amendment, with or without incorporation of the First Amend­ment's Free Exercise Clause.

The case of the Establishment Clause is entirely different. The Equal Protection Clause of the Fourteenth Amendment surely protects against any state legislation discriminating among citizens because of their religion, or giving any public preference to one religion over another. It ought to be unnecessary, therefore, for a court to go through the contortions necessary to make the prohibition on laws respecting an establish­ment of religion into a substantive liberty (or "liberty interest" as the lawyers say nowadays) to be incorporated in the due process clause.

But equal protection of the laws is not enough for certain types of litigants. The neutrality of the laws with respect to religion is not enough; the equal treatment of all persons regardless of religious persuasion is not enough. Those who masquerade as civil libertarians want to use the Establishment Clause and the Incorporation Doctrine to make (dare we say it) secular human­ism the established national religion.

In Establishment Clause jurisprudence, the "purpose-effect-entanglement" test, derived from Lemon v. Kurtzman (1971) has now also risen to the status of "doctrine." According to this doctrine, any act of any public body (national, state, or local; legislative, executive, or judicial) is unconstitutional if it has no valid secular purpose, or if it has the effect of advancing religion (whether that was its purpose or not), or if it excessively entangles the public body in religious activity (whatever its purpose or effect). No public act can survive the Lemon test unless it is neutral, not as between religions, but as between religion and irreligion.

The Establishment Clause decisions of the 1984-1985 term were all decided by applying the Lemon doctrine, that is, the "purpose-effect-entanglement" test. In Thornton v. Calder, a Connecticut law fell to the "purpose" prong of the test. The statute required every private employer in the state to give his employees their "sabbath" as a day off. There was a clear infringement of the freedom of employees and employers to bargain for the conditions of employment, but so straightforward an offense is of no interest to the modern Supreme Court; presumably state laws usurping the private decision concerning days off are perfectly acceptable.

Instead the Court considered the statute under its Lemon doctrine. What was the purpose of the statute? It was to facilitate the observance of days of religious obligation. The law was completely neutral among religious persuasions; one had only to declare that a certain day was one's "sabbath" and one had that day as a day off from work. In that respect, it was an improvement on the law it replaced, which had made Sunday the state day of rest (a practice upheld by the Supreme Court in McGowan v. Maryland [1961]). But, the Court reasoned, the purpose of the law was to favor the practice of setting aside one day a week for religious observ­ance, and therefore the purpose was to "advance" religion at the expense of irreligion.

The "purpose" prong of the Lemon test was also invoked in Wallace v. Jaffree to strike down a statute providing for a minute of silence in public schools that might be used for voluntary silent prayer. The legislative history of the statute was clear: The Alabama legislature was engaged in a misguided attempt to put prayer back into the public schools, and they wanted to see just what they could get away with. Conse­quently they enacted three statutory provisions: One provided for a moment of silence every day in the public schools; the second provided for the same moment of silence, specifically providing that it might be used "for meditation or silent prayer"; and the third provided for voluntary vocal recitation of a particular prayer. The third provision clearly ran afoul of the interpretation of the Establishment Clause in Engel v. Vitale (1962), and cannot have been intended to stay on the books.

In a fine bit of constitutional interpretation, the Supreme Court of the United States drew a bright line between an establishment of religion and no establishment of religion. A moment of silence "for meditation or silent prayer" is an establishment of religion; a moment of silence with no mention of possible silent activity is not an establishment of religion. The Alabama statute in question had not required prayer but had only mentioned it as an option; and it was completely neutral as to forms of prayer. But to go so far as to suggest prayer as a possibility was to favor the practice of praying, and thus to "advance" religion at the expense of irreligion.

The "effect" and "entanglement" prongs of the Lemon test were employed in a pair of cases, decided the same day, involving supplemental and remedial education programs provided to private school pupils. In Grand Rapids School District v. Ball, the school district leased class­rooms in a parochial school building and sent district employees to the schools to provide supplemental instruction. All religious symbols were removed from the leased premises, and signs were posted indicating that the classrooms were under the control of the public school system. Nevertheless, the Supreme Court held that the effect of using rooms on the parochial school ground for public school purposes was to advance religion. The Grand Rapids' program was held thus to violate the Establishment Clause.

Aguilar v. Felton involved a similar program funded by the federal government and adminis­tered by the local school district to provide remedial services to parochial school students. Particular care was taken to avoid any effect of advancing religion. State inspectors visited the program locations and monitored the delivery of services to ensure that no religion slipped into the publicly funded program. Curiously, it was that very diligence in satisfying the "effect" prong of the Lemon test that caused the program to fail the "entanglement" prong of the test. According to the Supreme Court's doctrine of religious establishment, administrative provisions that cause state officials to monitor activities or examine financial records of religious institutions impermissibly "entangle" the state in religious affairs. Of course, the lack of such provisions would leave open the possibility of an "effect" advancing religion.

The history of Establishment Clause juris­prudence since the Supreme Court started pro­nouncing on the subject in 1947 indicates a curious reversal of priorities. A real concern for religious liberty would dictate safeguards against the possibility that the mailed fist of government would clamp a stranglehold on religious observ­ance. Religion is too sacred, as well as too personal, to be dictated by politics. But in the decisions of the Supreme Court, the concern seems always to be to protect the government from the taint of religion.

The Supreme Court did decide cases on topics other than the establishment of religion during the 1984-1985 term. But anyone who had expected the triumph of common sense or of sound principles was again disappointed.

In the area of criminal procedure, the Court created from whole cloth two new "constitutional" rights. Under Ake v. Oklahoma, states are now obligated to furnish psychiatric assistance to criminal defendants to facilitate preparation of an insanity defense. Contrary to the recent tendency of the Court to defer to scientific knowledge and to professional expertise, the opinion recognizes that psychiatry is not an objective science capable of determining sanity or insanity, but rather that psychiatrists are "hired guns," advocates much like attorneys, who merely present arguments for the prosecu­tion or the defendant.

And under Evitts v. Lucey, convicted criminals are now entitled to the effective assistance of counsel (at public expense) in preparing the first appeal of their convictions. Anyone who has read the recent remarks of Justice Thurgood Marshall, or any opinion on the subject by Cali­fornia's Chief Justice Byrd, will recognize that at least in capital cases "effective counsel" means "a lawyer who wins the case."

A little-noted case of the 1984-1985 term that may prove to have more impact on law enforcement than any since Miranda v. Arizona (1966) turned on the Court's reading of the prohibition against "unreasonable search or seizure." In Tennessee v. Garner the Supreme Court held it unconstitutional for a peace officer to use deadly force against a fleeing felon without a reasonable belief that the felon both was armed and posed a danger to the policeman or to bystanders. The consequences of this ruling are potentially monumental. Because the Court has established this precedent as a matter of constitutional right, it is possible that rapists and burglars who are shot trying to escape arrest (or the criminals' heirs, if police marksmanship is any good) may win whopping monetary judg­ments against local governments under the civil rights acts. One can only imagine a policeman, arriving at the scene of a crime and seeing the perpetrator running off down the street, conduct­ing a due-process hearing on the question of whether the alleged criminal was armed and dangerous before drawing his own gun.

In another area of constitutional law, citizens who remember learning about federalism in a political science course sometime past will be dismayed by Garcia v. San Antonio Transit District. Congress, under its power "to regulate commerce among the several states" affects to set minimum wages, maximum hours, rates of overtime pay, and other working conditions for virtually everyone in the country. The commerce power has come to comprehend almost every species of human activity, but in National League of Cities v. Usery (1976) the Supreme Court recognized an exception-the commerce power does not extend to state and local government employees performing essentially governmental functions. The exception was a narrow one, but it seemed to be dictated by the American federal structure in general and by the Tenth Amendment in particular.

The 1985 Garcia case put an end, at least for the time being, to that exception. Justice Harry Blackmun, the one justice who changed sides between Usery and Garcia, did not even pretend to have altered his position on the meaning of the Constitution. Blackmun's decision was apparently based solely on judicial conveni­ence. It was too hard for federal judges to decide which functions of public employees were essentially governmental and which were not. Of course, it was Blackmun, in the notorious and disgraceful case of Roe v. Wade (1973) who invented the "trimester" theory of the viability of unborn children, also as a matter of judicial convenience. The death of the Usery precedent does not seem of much significance when compared to the deaths of 15 million babies authorized by Roe.

If there is any praise to be given to the Supreme Court for the results of its 1984-1985 term, it must be for resisting the effort to treat schoolteachers and principals as if they were policemen by requiring court-issued warrants before lockers could be searched for cigarettes (New Jersey v. T.L.O.) and the effort to have the mentally retarded declared a specially pro­tected class for purposes of invalidating legislation under the Equal Protection Clause (Cleburne v. Cleburne Living Center).

As we approach the first Monday in October 1985, Americans must become apprehensive once again, for the Supreme Court is now sitting. God save the United States from this honorable court!

 

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SHAKY LEGAL FOUNDATIONS

A Theory of Law
Philip Soper
Cambridge: Harvard University Press, 1984
180 pp., $16.50

By Bruce Pencek

Professor Soper's A Theory of Law is a marvel of Bauhaus moral architecture: ugly and unedifying, bloodless and indifferent to how people actually live and to what they believe. This book should therefore be well received in American university philosophy departments and intellectually progressive law schools.

Legal theory, which Professor Soper defines is "that body of speculative thought about the nature of law that has dominated analytical jurisprudence since John Austin's lectures on the subject a century and a half ago" (p. 1), has reached a "dead end." It has become meaningless insofar as legal theorists have merely described the concept of a legal system properly so-called, without also explaining why anyone should pay attention to their speculations.

Soper's intention is two-fold: to make legal theory's refined conceptual analyses moral rather than narrowly epistemological and to elevate thought about law above mere self-interested attention to coercion. He claims that legal theory can be made useful "by connecting it to issues in moral and political philosophy" (p. vii). Legal theory's fundamental question is: "What is law that I should obey it?" Answers to this question both illuminate and are illuminated by answers to the corresponding question of political philoso­phy. "Why should I, or anyone, obey the state?" (p. 7).

Perhaps Soper's theory is "moral" by the standards of contemporary analytical philosophy. Yet it is finally so otherworldly as to be only another intellectual exercise. At best, Soper connects the abstract, formal theories of one side of a philosophy department to the abstract, formal theories of another. He expressly excludes the practical effects of laws, of the distinctions among regimes, and of substantive notions of justice. Such considerations are irrelevant-inconveni­ent-to his task of defining a moral legal system. One wonders why he even mentions politics.

According to Soper, we are morally obligated-rather than merely coercively obliged-to obey the law if two conditions are met. First, officials must believe in good faith that their legal system serves everyone's good, such that they can give reasons for dissenters to obey! Second, they must provide effective minimal security, because any law serves public and individual interest better than no law at all (see, e.g., pp. 86-89).

What matters is not the factual questions of whether or to what extent their laws are just or serve the public good. People disagree on those too much for them to be useful to conceptual moral theorizing. Rather, the question is reduced to the sincerity with which officials believe in the justice of their actions. Citizens and officials have a reciprocal bond that holds the system together. The stronger the official commitment to some arguably moral purpose, the greater the resulting obligation. According to Soper's few allusions to something like human nature, it all works because we are all autonomous moral beings who respect other autonomous moral beings. Thus, we acknowledge our rulers' earnest efforts by feeling obligated.

Soper, to be sure, disapproves of tyrannies, citing Nazi Germany, Tsarist(!) Russia, and South Africa. However, it is not because institutionalized slavery is intrinsically wrong. "[E]ven slaves," he says, "have a prima facie obligation to obey" the laws whenever their rulers "sincerely believe such treatment can be morally justified" (pp. 122, 183 n. 17). Rather, it is because the "people in charge" (his typically all-embracing label) could not possibly be sincere about such regimes' "ration­ality and justice."

That the outrageous should be treated so coolly, even for purposes of argument, suggests that in his quest for formal rigor and comprehen­siveness, Professor Soper has missed something. He has ignored the very human-very political-distinction between the necessary and the good, between what circumstances may demand and what we ought most to desire.

To seek to understand law by reference to political philosophy is commendable, if only to discover that a decent political order may require that laws and officials take for granted the goodness of their fundamental principles rather than invite perpetual debate and revolution over light and transient causes. In trying to answer the question of how men ought to live, it makes eminent sense to suppose that good laws in a good regime will help make good men. That effort requires a philosophic understanding of good laws, of good regimes, and of the human good itself.

These Professor Soper does not address. He insists that what matters is the form of "law," "legal system," and "moral obligation," instead of the purposes of particular laws, the ways the laws actually make a regime good, and the condi­tions for the exercise of the virtues.

Professor Soper is fair-minded enough to admit repeatedly that other theories could be as conclusive and persuasive as his. Such even-handedness, like his neutrality toward regimes, implies that everything is open to debate and ought to be debated-nicely. Appropriately, the only right that Soper calls "natural" is "the right to discourse." We are all basically loving, giving, caring, sharing individuals, and if we and our officials can talk out our differences, we will feel obligated and so will they. Because we are reasonable beings, official sincerity can be tested by discussion. Nonetheless, the officials will still have the guns when sweet reason fails to per­suade the dissenters.

Soper's arguments suppose that since people widely disagree about "values," we can make our world as we will; we are fundamentally free. Equally confused, we establish moral principles on things to which we all can agree: rational, substantively neutral, and formal principles, and the fact that everyone believes in values whose truth cannot be proven but whose existence ought to be respected.

But if the world is essentially negotiable, why believe anything rather than nothing? Soper closes his book with an ambivalent consideration of the nihilistic implications of his theory. He does not attempt to refute the nihilist's denial of the value of having values. Instead, he notes the fact that some kind of theory can be built on the mere fact that people have them. The theory appears to be in the nature of a placebo: "[I]t is important to people to believe in the reality of value judgments; and one way this faith is maintained is by investing concepts that refer to the most basic social phenomena with a moral meaning" (p. 159).

That may be a sound enough observation in an age of doubt, but it is an admittedly empirical one that suggests that law should be understood in the light of ideology rather than of political philosophy. Nihilism renders suspect the whole conceptualist enterprise and gets, as it were, the last word in Soper's project. Why then make the effort?

The answer appears to be rather mundane: Soper wants to be useful. His advice to the ordinary citizen is to obey the regime, whatever it is, whether one is obligated or obliged. That is fair enough, and refreshing in an era that reveres civil disobedience for its own sake.

Soper's legal theory-like most American legal thought for a century-rationalizes unguided judicial activism as the application of principles philosophically superior to the Constitution's. Courts, after all, are "primarily . . . justificatory organs." They are supposed to give rational, normative arguments for our obligation to the regnant legal order (pp. 112-17). And they will enforce their edicts. But if the reasons for that order are equally arbitrary, as Soper says, then there is no reason to prefer one brand of democracy-liberal, social, or proletarian-over another. It does not matter which we have so long as the officials are enlightened, sincere, and powerful.

The Founders may have failed to rise above empiricism and the painful necessity of the rule of men by men. But they at least discovered how to create a stable and decent republic. What is more to the point, they did it without reference to the higher wisdom of analytical philosophy a la Professor Soper. If the perpetuation of American democracy requires willful judicial insincerity and conceptual messiness, rather than official sincerity and formal rigor, so be it. Perhaps that is as close to political perfection as mortals may attain.

 

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NEW BABBITS

Habits of the Heart: Individualism and Commitment in American Life
Robert N. Bellah, Richard Madsen, William M. Sullivan, Ann Swidler and Steven M. Tipton
Berkeley: University of California Press, 1985
xiii + 355 pp., $16.95

By Larry Peterman

"Habits of the heart" is part of Democracy in America's encompassing definition of "mores," a word Alexis de Tocqueville uses "to cover the whole moral and intellectual state of a people." It is an apt title, I think, for this most recent attempt to update Tocqueville, a Democracy in America for the eighties if you will, and not merely because its coauthors intend their book as a "detailed reading of, and commentary on, Tocqueville" (p. 306). More than a few books that build upon Tocqueville do not merit a Tocquevillian title. In this case, how­ever, a title testifies to a fundamen­tally Tocquevillian purpose. Like their predecessor, Robert Bellah and his coauthors seek to render America "intelligible" by illuminating its opinionative core, the "mental habits" and "habits of the heart" that combine to drive, to maintain, and sometimes to endanger the "democratic republic" in its American manifestation (Tocque­ville references are to the J. P. Mayer edition, pp. 19, 287).

In this respect, Habits of the Heart is admirable. Whereas other recent analysts of America are so governed by ideology, so overwhelmed by America's heterogeneity, so angry at what they construe as its people's lack of proper sympathy for those less fortunate than themselves, or so dis­tressed by the special-interest charac­teristics that increasingly define its politics that they tend to look upon the American people as heartless in both the Tocquevillian and Christian senses of the word-they are not mutually exclusive-the coauthors of Habits not only accept the premise that an American heart still beats, they believe that they can delineate it by way of survey research. Thus, beyond their commentary on Tocqueville, they would persuade us that "we have enough in common to be able mutually to discuss our central aspirations and fears" (p. vii). In short, their book testifies to their refusal to be governed by the current fashion or conventional wisdom of the academy. Such inde­pendence, I must add, has long been true of Bellah, to my mind the premier American sociologist of our day and the senior scholar, if not senior author, in this collaboration. He and his co­authors bear no animosity toward their fellow citizens and are less inter­ested in criticizing them than in under­standing them. And even where they are critical, they remain sympathetic and charitable. Indeed, I take them to argue that such qualities mark them as faithful to a central, if understated, element of American tradition, that which is manifested in American religion. In their version of the American heartland, a good deal of decency prevails.

Unfortunately, Habits does not stop at this. Its description of contemporary American ways reflects the view that individualism is the char­acteristic American excess and, therefore, that it poses the greatest threat to what is admirable in American life. Thus, as its subtitle indicates, the book openly reverses Tocqueville's hierarchy as regards the dangers inherent in a democratic people's "passion for equality" and its "natural taste for liberty." "Not equality," we are told, but individualism, which, as Tocqueville sees it, is coupled with a natural bias toward freedom, "has marched inexorably through our history." We need worry, and take precautions, lest that individualism grow "cancerous" and destroy the "social integuments" that protect us and our freedom, in effect, from ourselves (p. viii; see Mayer, pp. 503-6, 667). This is particularly true, the argument goes, insofar as individualism manifests itself in our disinclination to commit ourselves to civic and communal affairs.

In itself, such an argument is not especially objectionable. There is room in American thought to emphasize something other than what Democracy in America emphasizes. Tocqueville, one is constrained to say, holds no monopoly on the truth about America or democratic politics generally. Moreover, the coauthors of Habits, who acknowledge Tocqueville as the most profound influence upon their "thinking about life in America," touch upon something of fundamental importance to him (p. 306). We recall his concern about the loneliness which is the condition of the self-dependent individual in an egalitarian society, the man who accepts that all opinions and senti­ments are of equal authority and, thereby, can say with Turgenev that "I share no man's opinions, I have my own." Who can forget Tocqueville's description of the sorry state of such a man, devoid of hereditary friends whose help he can command, without a class upon whose sympathy he can rely, easily gotten rid of, and trampled upon with impunity (Mayer, pp. 506, 697).

Insofar as Habits denotes the problems attendant upon individualism, then, it is on solid ground. Indeed, even Tocqueville, who could visualize "an innumerable multitude of men, alike and equal, constantly circling around in pursuit of the petty and banal pleasures with which they glut their souls," might have been amazed by the picture it draws of the forms contemporary individualism takes (Mayer, pp. 291-92). Moreover, the book may be said to improve upon Tocqueville by emphasizing, cor­rectly I think, how traditional American individu­alism combines with the various psychological revelations of the last century to create, at least in some of us, an extraordinary self-absorption, not to mention self-indulgence. Here Habits is engaging, even fun. It is the stuff of sitcoms to consider what life is like for a disaffected California businessman who has discovered its real meaning-". . . just do your own thing. That is kind of neat"-but whose commitments are "precarious," an embryonic middle-manage­ment John DeLorean if you will (pp. 7-8). This is not to say that this part of Habits is without flaws. Despite its extensive and well-wrought survey, for example, its cross-section of America is unsatisfying. Its representative examples of Americans at large-our disaffected businessman, a director of public relations for a large manu­facturing firm and small-town New England civic activist, a practicing therapist, and an organizer for Tom Hayden's Campai