Antonin Scalia


Take it to term limits; lest ye be judged; the Croly grail; conspiracy theories.


Take It to Term Limits

The reason Steven Hayward is lukewarm about term limits ("Same As The Old Boss," December) is captured in his claim that they "are no substitute for the changes in public opinion that would be necessary to shrink the size and scope of government." What happens when public opinion conflicts with congressional self-interest? There is overwhelming evidence that the public already wants a much smaller and less powerful government. A Democratic Leadership Council survey last November found 78 percent of voters agreeing that "the federal government has too much power." In 1973 only 32 percent agreed with the statement, "That government is best which governs least"; in 1996, 61 percent agreed.

Republicans and Democrats have the official government-funded political parties. The Supreme Court has sanctioned government discrimination against other parties. Incumbents of both parties are united in supporting large staffs and budgets for themselves, which lead to an average of $2 million in taxpayer money used for re-election by each incumbent in each two-year cycle. That's not counting the tens of millions in pork per district. Even those huge advantages could well be overcome if incumbents had not criminalized voluntary contributions of over $1,000 with the Federal Elections Commission and its speech regulation process.

Incumbents were not elected in free and open elections. Their interests as incumbent rulers conflict with the interests of ordinary citizens. An unpredictable, powerful, and profligate government enhances both their power and their invincibility on election day. In this corrupt environment, ordinary voting is futile. The term limits movement is promoting a new self-limit pledge to help voters separate career politicians from citizens and throw the careerists out of their stronghold in Congress.

Eric O'Keefe
Treasurer, U.S. Term Limits
Spring Green, WI

Steven Hayward makes a compelling case for term limits. However, he falls into the same trap as many statists–assuming that more government intervention is the solution, rather than the problem. Incumbents receive a government-provided advantage through unlimited mailings, newsletters, ability to gerrymander district lines, etc. The solution is to level the playing field by removing these costly privileges, rather than taking away the voters' right to choose the candidate who best represents their views.

The goal of term limits is not to have "fun" or to "cause paroxysms of outrage within the political class," as Mr. Hayward states. The goal is not even greater turnover in our legislatures. The appropriate goal is greater responsiveness from our elected officials. Term limits, by their nature, increase the percentage of lawmakers in office who cannot be re-elected, and therefore have no motivation to serve the voters.

In addition, as Hayward's article mentions, even an inexperienced legislature is clearly capable of passing intrusive legislation. Why throw out a legislator who has a proven record of limiting government authority and spending in exchange for an unproven, and in some cases far more statist, newcomer? Why do you want to take away my right to vote for the best representative instead of leveling the playing field so the best can win in a fair fight?

Finally, Hayward lets the electorate off the hook far too easily. No amount of campaign spending, no amount of free media or interest group support (short of outright fraud) can force an informed voter to flip one lever over another in the privacy of the voting booth. The Internet and other modern tools of communication put vast amounts of information at our fingertips. We cannot confuse a result we don't like with one caused by a broken system of government. As supporters of free markets, we have an obligation to sell the message of liberty–not just to re-rig the rules to favor our cause over our opponents'.

Mary Jo K. Baas

Steven Hayward replies: There's just no pleasing some people. Mr. O'Keefe complains that I am "lukewarm" about term limits (true), while Ms. Baas thinks I make a "compelling" case in their favor. Yet both make essentially the same complaint: Incumbents enjoy unfair advantages. Both underestimate the cognitive dissonance of voters. It is true that voters say they favor smaller government, but there is good reason to suspect this is superficial. If it were broadly true that voters favor smaller government, how does O'Keefe explain why the public turned against Congress in the 1995 budget fight, when only a small reduction in government was proposed? My point is that incumbency isn't the main problem, but to the extent that incumbency contributes to big government, "leveling the playing field," as Baas suggests, won't go far enough in reducing the power of incumbency, for many of the reasons O'Keefe suggests (especially the pork barrel). Only term limits can do that effectively.

Lest Ye Be Judged

In his review of A Matter of Interpretation: Federal Courts and the Law, by Antonin Scalia ("Vexed by the Text," December), Michael Greve concludes that Justice Scalia's jurisprudence of "textualism" (or "originalism") "is good news for the Constitution–and, on the whole, for libertarians." Respectfully, I must register a dissent.

I give Justice Scalia his due as a defender of liberty provided he can find a textual nail to hang his judicial robe on. In the area of the Fifth Amendment's Takings Clause, Justice Scalia has brilliantly argued for the plain and literal meaning of the clause–that private property cannot be taken for public use without compensation. And in the area of free speech (again, a right specified in the First Amendment), he has sided with "liberal" justices, voting to protect cyberspace from federal regulation in the Communications Decency Act case and the right to burn the American flag in protest. (He cast the fifth vote to overturn laws prohibiting flag burning because they violated freedom of speech.)

But elsewhere, his "original intent" approach has often led him to the side of the state. If a right must be found in the literal text of the Constitution or Bill of Rights (or not at all), many liberties cease to exist. Justice Scalia, like his almost brother Robert Bork, is at bottom a legal positivist: No rights exist save those which are created by the state, and so, unless the state is constrained by the authority of its supreme constitution, its power is unlimited.

In a speech in October 1996 at the Catholic University School of Philosophy, Justice Scalia stated there is no "constitutional right to die" (a view later adopted by the Court in "right to die" cases this year), adding "all sorts of rights that clearly did not exist at the time of the Constitution have been held by the court and are thought by justices of the court to exist today." He has therefore opined that there is no right of privacy (the word doesn't appear in the Constitution), and hence the state may restrict a woman's access to abortion. There is likewise no constitutional protection for gay rights (where is homosexuality mentioned in the Bill of Rights?) and hence the state may prohibit homosexuality. Most libertarians would agree that liberty includes the right to control one's body, to end one's life, and to choose whom one sleeps with. Yet the theory of textualism provides no footing on which to argue for these rights on a constitutional basis.

The siren song of Scalia's textualism should not ensnare advocates of liberty. Its premise is fundamentally flawed: The Framers were not legal positivists. They believed, as good Enlightenment thinkers, that people held rights originally and independently of the state; that the state derived its authority from "the consent of the governed."

What was not delegated to the state was reserved to the people. The powers of the federal government were limited to those delegated to it. Hence the adoption of the Ninth Amendment, which is nonsense in the jurisprudence of textualism: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The essence of Justice Scalia's approach is to deny the existence of any fundamental right unless it is "enumerated" in the Bill of Rights. This stands the structure of the Bill of Rights on its head. Under a "literalist" approach, what unenumerated rights could have been "retained by the people"?

Justice Scalia's textualism applied to the Constitution gives birth to the very nightmare foreseen by Hamilton in Federalist No. 84. There he argued against the need for a Bill of Rights, for such an "enumeration" was not only "unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more [powers to the federal government] than were granted." By requiring every right to be specifically articulated, Justice Scalia gives the state carte blanche to claim "more [powers] than were granted" it.

If textualism triumphs as the jurisprudence of the next century, the scope of liberty under the Bill of Rights will diminish. In my view, the Living Constitution theory, while theoretically flawed, has at least helped keep intrusive government at bay during most of this century. Should it finally be discredited, the reins on the state will loosen even more. But this is not to say we should all become Living Constitutionalists as a matter of self-defense. The choice is not between an originalism that limits rights to an enumeration or a Living Constitution that knows no clear meaning for words; there is a third approach, all but ignored in the discourse of the Court, but which is truer to the Framer's beliefs: that rights precede government, not the other way around.

Don Erik Franzen
Topanga, CA

I'd be a lot more impressed with Justice Scalia's book if he didn't show signs of being dangerously out of touch. Looking to illustrate how Americans no longer value their liberties, he said, "So also, we value the right to bear arms less than did the Founders (who thought the right of self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard."

Few tears shed, in a country where the National Rifle Association has 10 times the membership of the American Civil Liberties Union? Where militias are organizing in every state, primarily because of violations of the Second Amendment? Where a quarter to a third of the population exercises this right? Where even this right's most virulent opponents have to pretend they don't mean to abolish it? Where the worst (private sector) terrorist act in history was provoked by deaths caused by the government while infringing this right? I've got to ask: What planet did Scalia spend the last decade on? The planet of the governing elites, I suppose.

I wouldn't be so concerned about this if I thought Scalia would pursue his textual analysis to its logical end, come hell or high water. But as Michael Greve notes, he won't. So much of the federal government is starkly unconstitutional by any honest analysis that even Scalia shrinks from doing the duty he's sworn to do: upholding the Constitution, rather than precedent. The extent to which he will do his duty is determined as much by his perception of the limits of public tolerance as by legal theory, and his perception seems grossly awry.

The apathetic majority won't care if the Court upholds or strikes down our rights. The minority who do care might plunge this nation into civil war if the Court attempts to abolish the wrong liberty. It would be outrageous enough if the Court did such a thing understanding the consequences of its act. Wouldn't it be a joke if they provoked a revolution out of nothing more profound than ignorance?

Brett P. Bellmore
Capac, MI

Michael Greve offers a good summary view of Scalia's constitutional views and his implementation of them, but I have to correct his description of the Romer v. Evans opinions. First, Scalia's dissent was hardly an "ideological critique." It was based on irrelevant references to Bowers v. Hardwick and polygamy laws, and some hyperbolic mischaracterizations of the majority opinion.

At one point, Scalia stated–falsely–that the majority opinion had declared unconstitutional the very process by which Amendment 2 was adopted. He also stated that the majority opinion had pronounced "animosity" towards homosexuality to be "evil" and "bigotry." These loaded words never appear, nor are they even hinted at, in the majority opinion. It is difficult to characterize these plain falsehoods as "calculated sarcasm." Rather, they put an ironic twist on Mr. Greve's statement that Scalia "cannot reason with" his opponents.

Mr. Greve also errs in stating that "[t]he majority did not bother to cite a single precedent or to marshal anything one might call an argument." I can only conclude that Mr. Greve never read the opinion. The truth is that it was grounded in the Equal Protection Clause of the 14th Amendment and provided strong (while not impervious) arguments regarding its applicability against Amendment 2. Over 20 relevant precedents were cited in building this argument. But then, perhaps Mr. Greve's own hyperbolic statement was modeled after Scalia's "calculated sarcasm."

James Maloy
Greeneburg, PA

Michael Greve replies: James Maloy and I are not going to agree on Romer. I think that Bowers–the lone Supreme Court precedent on homosexuality–was very relevant to Romer. The Romer majority harangued the Colorado voters for their "animosity" and "bare desire…to harm" homosexuals; to me, that's an accusation of "bigotry." Having read and re-read the opinion, I am at a loss to discern any of the "strong arguments" to which Mr. Maloy alludes.

What I do discern is Romer's holding that we must not "exclude" homosexuals from the "civic life of a free society." The private right to exclude, however, is called freedom of association. Romer ran rough-shod over this fundamental right. Why should libertarians strain to defend this result?

Don Erik Franzen shows a similar tendency to set aside–or not think through–libertarian commitments when sex, life, and death are at issue. He castigates Justice Scalia for his failure to discover–in cases dealing with abortion, the "right to die," and homosexuality–pre-political, constitutional rights "to control one's body, to end one's life, and to choose whom one sleeps with."

But the right to control one's body ends where someone else's life begins; for this reason, libertarian beliefs about the role of the state don't settle the abortion question. There is a right to die, in the sense that everyone can exercise it at any time. But the far more complicated question in the misnamed "right to die" cases is whether one can recruit a doctor's assistance in the act. And, sorry: There is no general right to "choose whom one sleeps with." One may not sleep with the dead or with sheep, for instance (and it's not because they can't consent).

I have considerable sympathy with Franzen's natural-rights thinking. But rights without contours are mere slogans; the question is, who determines the contours? Franzen is mistaken in suggesting that the determination and enforcement of extratextual rights by the Supreme Court have helped or will help "keep government at bay." To repeat the point of my article: If the Supreme Court's Constitution doesn't reflect the text, it will reflect the interests of the dominant elites. Perhaps we get a few highly questionable "reproductive rights," but we certainly get a constitutionalized nanny state.

Brett Bellmore, intriguingly, suspects that Justice Scalia himself may be a closet elitist. He suggests that Scalia underestimates the extent to which public (more precisely, populist) opinion would permit a textualist reconstruction of constitutional norms. Bellmore raises exactly the right question. I'm not sure, though, that Justice Scalia's instincts on "the limits of public tolerance" are "grossly awry." My sense is that Justice Scalia would gladly cast his jurisprudential lot with Second Amendment enthusiasts and other constituencies of Grover Norquist's "Leave-Us-Alone" coalition, if he were confident that they can eventually prevail over the governing elites. Can they?

The Croly Grail

Virginia Postrel's essay on Herbert Croly ("The Croly Ghost," December) should, I think, be seen as merely the first installment in a long-term commitment to examine the moral-intellectual foundations of American Progressivism. For a century now, leftists have enjoyed an intellectual free ride on the assumption that those foundations are not only secure but virtually beyond question. All too often, classical liberals have acquiesced in that assumption, trimming their principles to fit leftist strictures. As Postrel's essay indicates, however, that assumption and procedure must be questioned: "Seven decades after [Croly's] death, we are still living in the political world his ideas built–and struggling to escape it."

To make a clean break from it, however, we need to go even further than Postrel's claims and look to the antecedents of Croly's thought in 19th-century positivism. It's worth remembering that Croly was no intellectual innovator, but a professed and ardent disciple of Auguste Comte, the father of positivism. Comte's work, in turn, is notable for two related ideas, both integral to the rise of totalitarianism in Europe: 1) the rejection of ethical individualism and individual rights and 2) the affirmation of anti-technological environmentalism. Comte was quite explicit that the basis for both ideas was his commitment to the ethical doctrine he devised and named "altruism." Altruism, as Comte conceived of it, was the virtue of self-denial and self-sacrifice, and it was the "highest virtue" in his celebrated "religion of humanity."

As Louis Budd points out in his important essay "Altruism Arrives in America" (American Quarterly, Spring 1956), Herbert Croly was one of the most eager advocates of this new ethical vision, which he, like Comte, conceived explicitly in altruistic terms. Croly's commitment to Comte's altruism provides the best explanation for why he thought that the "Promise of American Life" required "individual subordination and self-denial," and had to lead to such "serious moral adventures" as American involvement in World War I.

It also explains, via Croly's influence, the moral-intellectual reasons for the rejection of classical liberalism in the early 20th century. As Eric Goldman explains in his book Rendezvous with Destiny, both Croly and his disciples at The New Republic were very clear about the connection between self-sacrificial altruism and the statist politics they wished to implement. A look at recent issues of The New Republic indicates that some things never change.

With these elements in place, one can better understand Ayn Rand's otherwise counterintuitive suggestion that altruism is not only incompatible with individualism and rights but subversive of them. If self-sacrifice is one's highest virtue, its practice requires a consistent commitment both to sacrificing one's own rational agency to others, and to insisting that others, in consistency, do the same–coercing them "by a certain measure or discipline" if need be. By contrast, an ethics that defines the good in terms of egoistic virtues like rationality and independence will insist that self-sacrifice is a great evil and that nothing good can come of it. A philosophy that defends the pursuit of happiness against subordination to the needs of others will insist that moral agents are ends in themselves, not means to anyone's "moral adventures."

As Ayn Rand put the point in The New Left: The Anti-Industrialist Revolution, the battle against the left's supposed monopoly on moral-intellectual matters consists not merely of denouncing it but of exposing its pretensions. An intellectual movement that takes the likes of Auguste Comte and Herbert Croly as its mentors is in no position to be taking the high road on questions of morality, much less writing its views into law and forcing them upon others. It's about time that leftists, so eager to question "established beliefs," be asked to confront the rather dubious provenance of some of their own "established beliefs." Postrel's essay may not literally force them to rethink those beliefs, but as classical liberals I suppose we can all live with that.

Irfan Khawaja
Princeton, NJ

In "The Croly Ghost," Virginia Postrel says the popular libertarian slogan "government doesn't work" is "not so good….It thereby jettisons the entire classical liberal tradition–which is very much supportive of `government' properly constrained–in favor of a vague anarchism." This is surprising, coming from someone who has written so many eloquent articles showing that voluntary exchange is far superior to government programs.

One need not be an anarchist (vague or otherwise) to recognize the obvious–that government doesn't work. It doesn't deliver the mail on time, keep the cities safe, or educate our children properly. Its War on Poverty and its War on Drugs are massive failures. Millions of Americans have lost faith in government precisely because governments everywhere have reached the inevitable stage where nothing about them works as promised.

When I appeared on hundreds of talk shows as the Libertarian Party's presidential candidate in 1996, often someone would say, "You exaggerate; many government programs work well." But when I asked for a single example, the answer almost always was a deafening silence.

Only two programs were ever offered as evidence of government efficiency. One was the interstate highway system, but no one could explain why a program to build highways inevitably wound up spending billions of our tax dollars on such things as a new Denver airport that no one in Denver wanted and an L.A. subway system that Californians consider a joke. Another person suggested the Weather Bureau–but he couldn't explain why TV and newspaper weathermen, relying on government forecasts, are the butt of so many jokes.

Why don't these and other programs work correctly? The answer is simple. Anytime you turn anything over to the government, you transform what was a commercial, medical, social, safety, financial, or military matter into a political issue–to be decided by politicians like Bill Clinton, Newt Gingrich, Teddy Kennedy, and Jesse Helms. And guess how they make their decisions?

Conservatives recognize that government is incapable of eliminating poverty, discrimination, smoking, drinking, and many other supposed ills. But when the target is crime, foreign dictators, pornography, drugs, abortion, cloning, or any other item on their menu, government is suddenly transformed into Superman. Just allocate enough money, and the problem will be solved. And if the problem isn't solved, that's proof that not enough money was spent. Transpose the menus and you get the definition of a liberal.

Libertarians, however, know that government doesn't work–even when it tries to do something we want. Government is coercion–pure and simple. Every government program involves forced activity, forcible prohibition, and/or forced financing–or else it wouldn't be a government program. And there's no way to make force efficient or benevolent; it's just force. Thus libertarians are continually looking for ways to take functions–any functions–away from government, because they want to reduce government force to the absolute minimum possible.

What is the absolute minimum possible? We might argue endlessly about that, but the question is really irrelevant. What's important today is that most people reading this magazine–and, in fact, most Americans–want much less government than they have now. Once we've harnessed that antigovernment sentiment and reduced government to a fraction of its present size, we can argue over how much further we should go.

But realize that, when that happens, the free market will give the best minds in the world an incentive to devise profitable methods (that we can't even imagine today) by which the free market can perform functions we might think now can be performed only by government. That isn't a "vague anarchism"; it's a reasonable belief that free human beings are much more creative, productive, and efficient than government.

In the meantime, we move in the wrong direction if we attribute to government an efficiency or benevolence it can't possibly possess. That's turning government into a Santa Claus–someone who will grant us our wishes if we're good little children and ask for the proper things. In short, it's a fantasy. No, Virginia, there is no Santa Claus. Government doesn't work.

Harry Browne
Franklin, TN

Virginia Postrel replies: Irfan Khawaja's thoughtful letter, while quite interesting, probably exaggerates the influence of Comte on Herbert Croly, a matter that is of some dispute among Croly scholars. It is the case that Croly's father, David Croly, was a devout Comtean, literally rearing his son in the "religion of humanity." Like many a young intellectual, however, young Herbert came under other influences when he went away to college, much to his father's chagrin, and he continued to absorb other philosophical ideas throughout his life. (The Promise of American Life is more Comtean than his later work.)

The lasting influence of Croly's work came, in fact, from the way it synthesized and popularized many different ideas that were in the air at the turn of the century. Self-sacrificing "altruism" was only one such idea. The notion that large, bureaucratic organizations are more efficient than "wasteful" competition–but, at the same time, are too dangerous to be left unregulated–was another, arguably far more influential, one. So was pragmatism, in both the philosophical and colloquial sense. And so, indeed, was Croly's depiction of the talented individual crushed by mass society–a vision only a few steps away from Rand's The Fountainhead. Reducing complex intellectual currents to a single explanatory variable, however powerful that variable may be, is a hazardous practice.

Harry Browne's letter is Exhibit A in the case for Crolyist influence. To say "government doesn't work" is not the same as to say we should have "much less government than we have now"–unless you buy Croly's definition of "government" as necessarily consisting of "programs" of regulation and redistribution, rather than as institutions enforcing neutral rules. To declare simplistically that "government doesn't work" is to say government in any form doesn't work. And that is exactly what Mr. Browne does say in the paragraph that begins, "`Libertarians, however, know that government doesn't work."

This argument, which Mr. Browne retracts in the final two paragraphs of his letter, runs completely counter to the classical-liberal tradition of limited government, as well as to the constitutionally established order that Mr. Browne has elsewhere said he supports. It is an argument for anarchy.

As such, it dismisses the rule of law, overthrows the enforcement of contracts and property rights, eliminates the common defense, and permits mob rule (libertarians for lynching?). It quite rightly scares the hell out of the general public. If technocrats of the right and the left want to cling to power by claiming that we must choose between the huge, intrusive, Crolyist state and anarchy, that is their prerogative. But libertarians should not go out of their way to help make that ridiculous case. Critiquing failed programs is essential. Equating those programs with "government" is anachronistic, unimaginative, foolish, and just plain wrong.

As the societies of postcommunist Europe and the developing world struggle to establish a rule of law in which freedom can flourish, 21st-century classical liberalism must think hard about how institutions–including government institutions–can evolve to support free minds and free markets. That requires creativity and serious intellectual and practical engagement.

As for the Santa Claus line, believe it or not, I've heard it.

Conspiracy Theories

Charles Paul Freund would do well to leave alone the muddled analogies of Daniel Pipes ("The Truth is Out There," December). Yes, both pornography and conspiracism titillate–but so do libertarian exposés of the drug war and command economy. Viewpoints held in disfavor by the politically powerful tend to take on a forbidding glamour; even the politically naive appreciate that phenomenon.

Indeed, conspiracism and libertarianism share a philosophical kinship to complement the aura. Adherents of the two camps understand the essence of the state: that it consists of mere mortals who don't stop acting out of self-interest despite the presumption that they act in the public interest, and that this intersection of self-interest and monopoly force poses a potent and far-reaching danger. Conspiracists go farther with this premise, of course, positing an intersection that spurs webs of elites to criminal–even diabolical–cooperation. While Freund is entitled to take issue with this extension, he might still present a fair picture of those who make it.

He does nothing of the sort. Even when defining his terms he demonstrates dogmatic contempt for his subject: "Conspiracism is a belief in nonexistent grand conspiracies as the motive force in history." He chides conspiracists for tagging as gullible all who don't subscribe to the paranoid view, yet much of his piece consists of sweeping generalizations regarding the conspiracists' own gullibility (for subscribing to theories relating to the October Surprise, for example, or U.N. weather control measures, or the whacking of Princess Diana by the House of Windsor). Irony is lost on him. "Conspiracy," Freund writes, "offers a world with neither accidents nor unintended consequences"–even as he offers a world with neither planning nor intended consequences.

Punditry is characterized by such bristling at conspiracy. In a 1979 editorial, The New York Times grudgingly accepted the findings of a congressional committee investigating the assassination of President Kennedy but objected to the word used to describe those findings. "Conspiracy," the editors intoned, "is freighted with dark connotations of malevolence."

Sometimes, though, the truth is dark and malevolent, and punditry's rigid adherence to randomism (wildly ironic given canards about conspiracists' simplistic and monolithic mindset) does nothing to advance the cause of truth. In the final analysis, the conspiracists' premise is remarkable only in its plausibility; the world would be an astonishing place if power were not inclined to hidden agendas and clandestine cooperation.

Tony Pivetta
Royal Oak, MI

Charles Paul Freund replies: Power may well be inclined to hidden agendas and clandestine cooperation, as Tony Pivetta writes. But what is at issue here is power's ability to plan with such complete foresight, and to manipulate with such total success, as to attain its goals while keeping its hand hidden over generations, if not centuries.

It is a founding concept of modern libertarianism that the world is a place of sufficient complexity that power's plans are necessarily incomplete, and that the consequences of its interventions, even when its actions are meant as benign, are both different from what was intended and beyond its control. Those who contend that the more sinister power is, the more prescient it is, have yet to demonstrate how this could be true.

Mr. Pivetta also objects that my use of the term conspiracism reflects dogmatic contempt. But this neologism has been coined (independently, several times) as a critical term, not a descriptive one. He can embrace the term if he chooses, of course, but that's its history. I don't deny my contempt for conspiracism; I do deny that there's anything dogmatic about it.